Today in Supreme Court History: February 23, 1905

2/23/1905: Lochner v. New York argued.

 

Comments

[JoeFromtheBronx]

David Bernstein has a chapter in Michael Dorf's Constitutional Stories book on this case. He also wrote his own book.

Holmes has the famous dissent. Harlan (who was okay with the liberty of contract) had the primary dissent. The Peckham majority opinion has a "let's see how far this could be taken" passage that would question chunks of modern regulations.

Bernstein takes something of a revisionist view (Peckham punches out Holmes on the cover; what about Harlan?), including noting that the case protects substantive due process, which liberals like when applied in various cases.

Another entry in Dorf's book (on Dred Scott v. Sandford) argues there is a significant difference between liberty and property in this context, while still granting that there is some overlap.

Ultimately, the justices concluded that regulation of the economy is generally justified unless it interfered with some other constitutional issue, such as racial discrimination.

This was tempered somewhat in recent years. State courts also sometimes provided stricter review of economic regulations. Also, the "end of substantive due process" is far from here.

https://texaslawreview.org/wp-content/uploads/2025/02/Litman.Printer.pdf

My position would be that there is some "liberty of contract" in our constitutional system -- the general idea is basic to freedom -- but it is acceptable to reasonably regulate it, especially to address inequality and health concerns. So, Harlan is right.