Constitutional Economics

Abstract

The conventional narrative that courts and legal scholars tell about the repudiation of Lochnerism in the late 1930s is incomplete. The standard view is that the Lochner line of cases-those overturning state wage and hour laws under substantive due process doctrine-collapsed as their premises about economic liberty were undermined. The doctrine then remained dormant until it was revived in Griswold v. Connecticut. The account continues that the aim of substantive due process jurisprudence in the post-Griswold era, as the Supreme Court turned to vindicating personal and intimate rights under the doctrine, has been to distinguish the modem doctrine from Lochnerism. Yet this view ignores how the architects of the New Deal era repudiated Lochnerism and how their affirmative constitutional argument connects to modern substantive due process doctrine.