Ak’s lecture on Lochner

• Liberalism. Idea of fundamental rights that is a recurrent theme in constitutional law is an artifact of liberalism, the political philosophy that holds that the purpose of government is not the promotion of religious, moral, or martial virtue, but rather peace, prosperity, intellectual progress, and personal liberty. This philosophy has dominated American political thought since DI, which states that the protection of liberty is the purpose of government.

• Evolution of meaning of liberalism. Basic concept, then and now, was that the individual was autonomous within a certain sphere which government could not violated. But it has been understood differently at different times.

• John Locke. Original, liberal conception of rights. Fundamental right was that of property, which he understood to mean one’s power over one’s own person as well as over the tangible objects that one possessed. The fundamental idea was that a boundary existed between public and private power. Within the zone of each individual’s property, the capacity for rational self-direction, which Locke regarded as a great virtue, could be developed.

• Beginning of U.S. From the beginning, there were judges who understood property rights to be part of USC. Property rights were very much on Justice Chase’s mind when, in Calder v. Bull, he read “certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power.” He gave as an example “a law that takes property from A and gives it to B”

• Modern critique of Lochner.

• Black claimed in Ferguson v. Skrupa that Lochner was illegitimate, judge-made law, and that “we have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies.” [not in casebook]

• John Hart Ely observed that the Lochner line of cases “are now universally acknowledged to have been constitutionally improper.”

• How could SCt have gone so far wrong? Is there a charitable reading of the opinion that can explain how it was persuasive to generations of lawyers?  yes! Examine Civil War Era and beyond.

• After Civil War. Defense of property rights really took off in the SCt after the Civil War in the now infamous Lochner line of cases.

• Anti-slavery movement. Relied on a property-centered notion of rights in its critique of the South. The cherished values on which the Republican party was built were economic development, social mobility, and political democracy, and all three appeared to be violated in the South.

• North. In the North, it was believed, there was virtually limitless social mobility. According to Lincoln, “The man who labored for another last year, this year labors for himself, and next year he will hire others to labor for him.” In this view, which at the time reflected economic reality, the government could best promote prosperity by getting out of the way and respecting people’s rights.

• South. Republicans argued that the South was economically backward because the slaves were deprived of both the education/incentives to improve it. Seward said that slavery reduced the slave to “a brute . . . incompetent to cast a shuttle, to grease or oil a wheel and keep it in motion,” and Lincoln charged that the Southern vision of a laborer was “a blind horse upon a tread-mill.” Greeley said “Enslave a man and you destroy his ambition, his enterprise, his capacity. In the constitution of human nature, the desire of bettering one’s condition is the mainspring of effort.”

• Virtues of abolition. What abolition promised for blacks was a fundamental change in the slave’s relationship to property: blacks would have the same right to acquire and sell property and labor that whites had long taken for granted. It was in this context that

1. Justice Field wrote in Slaughter-House dissent that PIC protects “right to pursue lawful employment in a lawful manner,” and

2. Bradley wrote that “the right to choose one’s calling is an essential part of that liberty which it is the object of government to protect.”

3. Modern view (14^th Amendment does not protect freedom of contract) is reflected only in Miller’s opinion, which read PIC out of USC altogether.