Bernstein on Class Legislation, Fundamental Rights and Lochner

David E Bernstein, George Mason University Antonin Scalia Law School, has posted Class Legislation, Fundamental Rights, and the Origins of Lochner and Liberty of Contract, which appears in the George Mason Law Review 26 (2019): 1923-1047:

While legal scholars and historians have criticized many judicial doctrines from the pre-New Deal period, critics have been especially scathing in their attacks on the “liberty of contract” doctrine enforced most famously in Lochner v. New York. Until recently, academics routinely asserted that the Lochner Court’s Justices simply made up the doctrine based on a combination of belief in laissez-faire economics and hostility to workers’ rights.

Contemporary scholars, by contrast, have reconstructed the period’s due-process jurisprudence, finding in it a principled commitment to a conception of justice with philosophical and jurisprudential roots dating back to the Founding and beyond. There are two primary lines of this revisionist literature. One emphasizes traditional Anglo-American hostility to “class legislation” — legislation that arbitrarily favors or disfavors particular factions. The other emphasizes the influence of the natural rights tradition, tempered by precedent and historicism, on the Court’s due-process decisions. Part I of this Article reviews the debate that emerged in the 1990s and early 2000s between partisans of these interpretations.

Part II of this Article discusses subsequent developments in the class legislation vs. fundamental rights debate through the present time, noting an increasing convergence between the two sides; both sides acknowledge that both class legislation and fundamental rights played significant roles in the development of the Supreme Court’s due process jurisprudence, with the remaining debate primarily over which doctrine deserves more emphasis in historical recountings.

This Article concludes by noting that as this debate has progressed, certain areas of historical consensus have emerged. First, both sides agree that the Court did not attempt to enforce anything approaching a night watchman-type laissez-faire policy on government. Second, both sides agree that the Supreme Court’s fundamental-rights jurisprudence, often traced to the 1930s, in fact began to emerge in the pre-New Deal period. Finally, they agree that the Supreme Court Justices who adopted and applied the liberty of contract doctrine did not have the cartoonish reactionary motives attributed to them by Progressive and New Deal critics. Rather, the Justices, faced with constitutional challenges to novel assertions of government power, sincerely tried to protect liberty as they understood it, consistent with longstanding constitutional doctrines that reflected the notion that governmental authority had limits enforceable via the Due Process Clause.

--Dan Ernst