Given the resilience of the opposition to the liberty of contract jurisprudence, a doctrine that is epitomized by Lochner, and given the insistent dedication of scholars and jurists to a largely mistaken understanding of economic substantive due process argumentation, it is an appropriate time to review David Mayer’s contribution to the literature surrounding Lochner. In his new book, Liberty Of Contract: Rediscovering A Lost Constitutional Right, Mayer rightly contends that the Court, during the Lochner era, was protecting liberty of contract as a fundamental right rather than enacting laissez-faire constitutionalism as Justice Holmes and his intellectual heirs supposed. Building upon Professor Sawyer’s exposition of Hammer and its origins in the mind of one of America’s most influential legal theorists, Philander Knox, I offer a contrasting conception of the Lochner Court. This conception implies that the Supreme Court’s decision making during the Lochner era corresponds with the Court and the nation’s capitulation to progressive values. Given Sawyer’s analysis, I argue that Mayer’s bracing defense of liberty of contract jurisprudence is diminished by analytical gaps that fail to satisfactorily account for the history and potency of the social, cultural and quasi-scientific currents permeating the nation before, during and after the onset of the Lochner era. This Article shows, notwithstanding the elegance of liberty of contract jurisprudence, that the emergence of today’s welfare state resembling a dystopian reality that richly manifests itself in legions of “one percenters,” who insist on occupying America’s capital city, was an unfortunate, but predictable, outcome. Finally, I contend that until citizens, politicians and judges display modesty about the nation’s capacity to solve the human problem and immodesty about an individual’s right and responsibility to solve her own difficulties in voluntary communion with others, it remains doubtful that the rediscovery of liberty of contract as a lost constitutional right can become anything but an attractive anachronism.
Hutchison, Harry G., Lochner, Liberty of Contract and Paternalism: Revising the Revisionists? (April 25, 2013). Indiana Law Review, Vol. 47, Forthcoming; George Mason Law & Economics Research Paper No. 13-28.