The paper deals with the famous Lochner v. New York (1905) decision from the perspective of the history of economic thought. In Lochner the Supreme Court affirmed freedom of contract as a substantive constitutional right. It is argued that, in writing for the majority, Justice Rufus W. Peckham was heavily influenced by classical political economy. Not, however, in the trivial sense of endorsing pure laissez faire, but in the much deeper sense of applying Adam Smith’s Wealth of Nations recipe for the building of a “system of natural liberty”, viz., a social order founded on justice, private property, and free competition. My interpretation is validated by looking at the economic content of Peckham’s jurisprudence as a judge in the New York Court of Appeals.
Wednesday, March 15, 2017
Giocoli on Lochner and Economic Thought
Nicola Giocoli, Department of Law, University of Pisa, has posted Elevating Competition: Classical Political Economy in Justice Peckham's Jurisprudence: