Why the consensus against Lochner v. New York is beginning to fray

In my most recent essay for the JOTWELL website, which reviews important new legal scholarship, I analyze Thomas Colby and Peter Smith's excellent recent article "The Return of Lochner." Here's an excerpt:

Lochner v. New York (1905) has long been one of the most widely reviled decisions in Supreme Court history. The Court's 1905 ruling striking down a New York maximum hours law for bakers under the Due Process Clause of the Fourteenth Amendment has been routinely denounced as callous, unjust, and based on blatantly fallacious legal reasoning… Thomas Colby and Peter Smith's important new article argues that the longstanding dominance of this view of Lochner has begun to erode, at least among conservatives.

Colby and Smith provide an excellent account of why this trend began, and how it compares with previous developments in conservative and liberal legal thought. As they emphasize, even when the anti-Lochner consensus was at its height, liberals and conservatives opposed the decision for different reasons….

Over the last two decades, Colby and Smith explain, several factors have moved right of center constitutional thought away from the anti-Lochner consensus….

Colby and Smith…. emphasize changes in originalist constitutional thought….

One is the shift from "original intent" originalism to "original meaning." The former emphasizes the specific intentions of the framers of constitutional provisions, while the latter focuses on the public understanding of the provision in question at the time of enactment….. From the standpoint of original meaning more so than original intent, there is extensive evidence that the Fourteenth Amendment was understood at the time as protecting a variety of property rights and economic liberties….

A second development stressed by Colby and Smith is the renewed interest in the Privileges or Immunities Clause of the Fourteenth Amendment among originalist legal scholars of a variety of ideological persuasions. There is a great deal of historical evidence indicating that the Clause was intended, at least in part, to protect economic liberties and property rights, and that its near-evisceration in the 1873 Slaughterhouse Cases was a serious mistake…

Colby and Smith's article is not intended to address the normative debate over judicial protection for economic freedoms. Both sides in that debate have a variety of strong arguments, and we are unlikely to get a definitive resolution anytime soon. But they do provide a valuable account of why a serious debate over this issue has reemerged in the first place.

As Colby and Smith note, one of the works that has played a key role in reviving debate over Lochner and constitutional protection for economic liberties more generally is co-blogger David Bernstein's important 2011 book, Rehabilitating Lochner. David does not prove (or even try to prove) that Lochner was necessarily correct. But he does show that the use of the Due Process Clause to protect economic liberties had deep roots in the history and original meaning of the Fourteenth Amendment, and helps dispel many of the myths that have clustered around Lochner.

The vast majority of judges, lawyers, and legal scholars (including most conservatives), still believe that Lochner was wrongly decided. Many also continue to believe that it was one of the worst decisions in Supreme Court history. But the idea that Lochner might be right after all has moved from being almost unthinkable to enjoying a measure of intellectual respectability.

In my new book on Kelo v. City of New London , I describe how the debate over Kelo was a key factor in breaking down the previous near-consensus in favor of the idea that the Public Use Clause of the Fifth Amendment allows the government to condemn private property for virtually any reason it wants. Colby and Smith's analysis suggests that the consensus against Lochner may be in the process of a similar breakdown, albeit one triggered by partly different causes.

On the other hand, there is at least one crucial difference between the two situations. While the reaction against Kelo and its very broad view of "public use" has considerable support on both the left and the right, the recent reconsideration of Lochner is largely confined to conservatives and libertarians. The future of Lochner revisionism may depend in part on its ability to attract a measure of cross-ideological and bipartisan support.