The Lochner Era & "Substantive Due Process" (Part One)
The Lochner Era (Introduction)
There are several periods in the history of the Supreme Court in which tend to be remembered for an overall approach and lasting impact rather than for a specific case or two. Often they’re simply referred to by the name of the Chief Justice at the time – the Marshall Court of the early 19th century promoted federal power in the early days of the United States, the Warren Court discovered a slew of new rights and protections for the accused in the 1950s and 1960s, and the Roberts Court…
Well, it’s a bit early to make that call.
The Lochner Era (1897 – 1937), however, is named for a case representing a judicial philosophy which dominated the nation’s highest court for nearly forty years. For over a generation, the Court pushed back against the reform efforts of the Progressive Era and gave FDR fits by overturning many of his best efforts to regulate industry during the Great Depression. They laid the foundation for the modern “school choice” movement by uncovering new rights related to parenting and families. In the process, they brought to life an understanding of the Fourteenth Amendment that would end up securing the rights of American citizens to contraception, gay sex, and abortions.
Who saw THAT coming?
The 20th Century Begins
The Spanish-American War was over, the U.S. was quickly becoming a leader in imperialist expansion, and World War I wasn’t yet a twinkle in the Kaiser’s eye. The Second Industrial Revolution was in full swing; massive manufacturing and swelling CONTINUE READING: The Lochner Era & "Substantive Due Process" (Part One) | Blue Cereal Education
The Lochner Era & "Substantive Due Process" (Part Two)
NOTE: If you haven't already done so, you should probably start with Part One of this post. I mean, I can't force you or anything, but...
“Economic Substantive Due Process” in the Lochner Era
“School choice” wouldn’t emerge onto the national scene until after Brown v. Board of Education (1954) and the various forays into moral corruption and social decay wouldn’t become staples of the nation’s highest court until a decade after that. The rest of the Lochner Era was largely about how freedom meant letting corporations do whatever they wanted to workers because those being exploited had just as much theoretical control over the outcome as their gilded overlords did. (They didn’t put it in those exact terms.) Between 1897 – 1937, the Supreme Court struck down nearly 200 different statues, most as violations of “freedom of contract” or other violation of “economic substantive due process.”The Court acknowledged in principle that state and even sometimes federal government had some limited authority to regulate workplaces in order to promote safety and the general welfare, but only in cases involving explicit physical danger. Efforts to regulate mining, for example, might have a chance; restricting the hours during which one could safely bake bread, on the other hand… not so much.
Any such regulations should avoid restricting “market choices”; they couldn’t interfere with the ability of men to sign up for whatever working conditions they choose at whatever wages are available. The Lochner Era had little use for Congress’s claims to CONTINUE READING: The Lochner Era & "Substantive Due Process" (Part Two)