Throughout the majority opinion of Judge Samuel Alito in Dobbs v. Jackson Women’s Health Organizationwho took away the constitutional right to abortion, make disparaging comments about a 1905 case in which the Supreme Court struck down a state economic regulation.
“On occasion,” Alito wrote in Dobbsthe Court “fallen into the free-wheeling judicial politics that has characterized discredited decisions such as Lochner vs. New York.” The Lochner decision was both “unprincipled” and “wrong”, Alito said. He even placed Lochner next to Plessy v. Ferguson (1896), the notorious decision which enshrines the vile doctrine of “separate but equal”.
Alito is not the first judicial conservative to attack Lochner. The late Robert Bork, a federal judge who nearly made it to the high court, denounced Lochner as “the symbol, even the quintessence, of the judicial usurpation of power”. For conservatives like Bork and Alito, the problem with Lochner is that the decision recognized a constitutional right which (in their view) does not exist and should not exist. “To this day,” Bork wrote, “when a judge merely writes the Constitution, he is said to ‘lochnerize’.”
The problem with the Bork/Alito view of Lochner it is that it is erroneous from the point of view of the constitutional text and of history. Indeed, the drafting and ratification history of the 14th Amendment makes it clear that the amendment was originally intended to protect a wide range of unlisted rights, including the right to economic freedom, sometimes referred to as freedom of contract. , which was the very right at issue in Lochner.
Consider the words of Representative John Bingham, the Republican from Ohio who primarily drafted the first section of the 14th Amendment, which reads: “No state shall make or enforce any law which would restrict the privileges or immunities of citizens of the United States; nor can any state deprive any person of life, liberty, or property, without due process of law”. As Bingham put it in the House of Representatives, “the provisions of the Constitution guaranteeing the rights, privileges and immunities” include “the constitutional freedom…to work in an honest trade and to contribute by your labor in some way to your own subsistence, to the support of your fellow men, and to be secure in the enjoyment fruits of your labor.” In other words, the 14th Amendment was designed to protect, among other things, an unlisted right to economic freedom.
Even those who opposed the ratification of the 14th Amendment said so at the time. For example, Rep. Andrew Jackson Rogers (D–NJ) complained to the House in 1866 that “all the rights we have under the laws of the land are encompassed within the definition of privileges and immunities.” “The right to contract is a privilege”, he observed, adding: “I consider that if this [the 14th Amendment] ever becomes part of the basic law of the land, it will prevent any state from refusing to permit anything to anyone who is embraced under this term of privileges and immunities. »
To say the least, the fact that proponents and opponents of the 14th Amendment agreed on its meaning at the time of ratification is strong originalist evidence in support of the Lochner Reasoning and result of the court. Contrary to the junk story peddled by Bork and Alito, Lochner is not a dirty word.