The Specter of Lochner: Public Lecture with Boston Univ.'s James E. Fleming


As Boston University Honorable Paul J. Liacos Professor of Law James Fleming noted in introducing his October 19 lecture at the MU Law School, in order to finally vanquish “the ghost of Lochner,” we should first acknowledge how jurists and legal scholars currently wield the Supreme Court decision in question: not always with thorough consideration, he argued, but, more frequently, as “a rhetorical club” or meme “to criticize opponents” and express discontent with majority opinions.

This out of the way, we can then revisit Lochner v. New York itself, and trace its implications over time, in order to systematically deduce what it means, in the modern day, to charge someone with “Lochnering” and, in turn, whether or not these charges hold water. The 1905 case, which determined that a New York state law preventing bakers from working more than 10 hours per day and more than 60 hours per week was unconstitutional on the grounds that it violated the 14th Amendment’s Due Process Clause, was an immediate, turn-of-the-century lightning rod. Not only did the Lochner majority deem the New York law a breach of freedom of contract and an instance of undue meddling in individual rights; they also deemed the state’s regulatory end—the protection of bakers—a pretext for other motives, not least among which was the advancement of a socialist agenda. On the other side, Justice John Marshall Harlan argued in the minority that the law was simply a rational extension of the state government’s legitimate interest in protecting its citizens, while Justice Oliver Wendell Holmes famously contended that the laissez-faire, anti-paternalistic strain of capitalism protected by Lochner was at odds with the fact that the Constitution does not embody a single economic theory.

In what Prof. Fleming referred to as “the first death of substantive due process,” the decision in Lochner was rolled back in 1937’s West Coast Hotel Co. v. Parrish, which curbed aggressive judicial protection of economic liberties under the Due Process Clause by upholding Washington state’s minimum wage legislation. But while the decision itself was overturned, the ghost of Lochner did not vanish. Far from it. Instead, overturning Lochner in many ways empowered critics of subsequent, similarly-decided cases, most notably Roe v. Wade (1973), Planned Parenthood v. Casey (1992), and Obergefell v. Hodges (2015). If the Court admitted mistake in Lochner, these critics reasoned, how was it not making the same mistake in relying on substantive due process arguments to justify judicial protection for personal liberties such as the right to terminate a pregnancy, to use contraception, or to marry who one chooses?

Over the course of the middle portion of his talk, Prof. Fleming detailed the various explanations that critics have used in recent decades to articulate what was (or wasn’t) wrong with Lochner and, by analogical extension, what was (or wasn’t) wrong with Roe, Casey, and/or Obergefell (see here for a more complete unpacking of this and other topics addressed in the lecture). Interestingly, however, it was a modern revival of pro-Lochner sentiment that ultimately allowed Prof. Fleming to move forward in casting out the specter haunting today’s courts.

Specifically, he pointed out how conservative jurists and legal scholars have recently taken to making two related arguments: (1) that Lochner was, for the most part, decided rightly and that the courts can and should resume aggressively protecting enumerated economic liberties using the Takings or Contracts Clauses; and (2) that because they are unenumerated, personal liberties are not constitutionally eligible for protection under the Due Process Clause. (By contrast, he showed how Libertarian scholars and jurists, in reviving Lochner, argue that the rulings in Roe and Obergefell also represent justifiable, due process protections of basic liberties.) In responding to this conservative swing of the pendulum back toward Lochner, Prof. Fleming laid out two counter-claims. Firstly, while he acknowledged that the Constitution does presuppose economic liberty and property rights, he argued that these rights and liberties are so fundamental that they do not need aggressive judicial protection; in their vulnerability, however, basic personal liberties very much do.

Secondly, he asked that the audience consider the long list of fundamental rights that the Supreme Court has protected over the years: “liberty of conscience and freedom of thought; freedom of association, including both expressive association and intimate association…the right to travel or relocate; the right to marry, whatever the gender of one’s partner…the right to direct the education and rearing of children…and the right to exercise dominion over one’s body.” This list is not, he contended, a “subjective, lawless product of judicial fiat” that is “indefensibly indeterminate and irredeemably undemocratic”; it is not reflective of the “spooky, idiosyncratic moral predilections of rogue justices.” Instead, he concluded, the list is constructed through the common law constitutional interpretive tradition of reasoning by analogy and thus “represent[s] a coherent practice of protecting basic liberties significant for personal self-government [and] empowering individuals to make the most important decisions in their lifetimes by themselves.” And it is with this recognition, he ended, that we can see the ghost of Lochner for what it is—“an apparition fabricated by opponents of the modern practice of substantive due process”—and, at long last, vanquish it once and for all.


James E. Fleming received his A.B. in Political Science from University of Missouri, his Ph.D. in Politics from Princeton University, and his J.D. from Harvard Law School. He currently serves as The Honorable Paul J. Liacos Professor of Law at Boston University School of Law. He is the author of five books, most recently Fidelity to Our Imperfect Constitution (Oxford University Press, 2015), Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013), with Boston University School of Law Professor and Paul M. Siskind Research Scholar Linda C. McClain, and American Constitutional Interpretation (4th ed., Foundation Press, 2008), with Princeton University Professors Walter F. Murphy and Stephen Macedo and University of Notre Dame Professor Sotirios A. Barber. Prior to joining the faculty at Boston University, Professor Fleming served as Leonard F. Manning Distinguished Professor of Law at Fordham University School of Law.