Lochner's legacy's legacy

Avoiding "Lochner's error" remains a primary focus of constitutional law and constitutional scholarship. Debate continues, however, regarding just what that error was. In his oft-cited 1987 Columbia Law Review article, Lochner's Legacy,(1) Cass Sunstein argues that the Lochner era Court's primary error was not its purported "judicial activism." Rather, he contends the primary problem with Lochner was the Justices' belief that market ordering under the common law was part of nature rather than a legal construct, and that it formed a baseline from which to measure the constitutionality of state action, rendering redistributive regulations unconstitutional. The understanding of the Lochner era adopted by Sunstein in Lochner's Legacy has been widely accepted in legal circles, including by four current Supreme Court Justices. As conservative and liberal Justices continue to battle over the meaning of Lochner and its significance for modern constitutional jurisprudence, the liberal Justices have adopted Lochner's Legacy's historical thesis. What is remarkable about Lochner's Legacy's massive influence on the current understanding of Lochner is how little evidence Sunstein provides for his historical claims. Beyond Lochner itself, the article cites only ten out of hundreds of relevant Lochner era cases, and discusses only two of them in any detail. Even the discussion of these two cases is tendentious. Sunstein's argument has nevertheless thrived because until now no one has systematically scrutinized its historical underpinnings. This Article examines three major historical claims Lochner's Legacy makes about the Lochner era: (1) that the Lochner era Supreme Court understood 2 the common law "to be a part of nature rather than a legal construct (2) that the Lochner era Court sought to preserve what it saw as the "natural," "status quo" distribution of wealth against redistributive regulations; and (3) that the abandonment of Lochner resulted from the Supreme Court's recognition that the problem with Lochner and its progeny was that the Court in those decisions mistakenly treated government inaction as the "baseline" to determine the constitutionality of government regulations. I argue that all three of these propositions are demonstrably incorrect. Lochner's Legacy provides a particularly telling example of the danger of applying an ideological construct to constitutional history for presentist purposes, while ignoring or neglecting contrary evidence.