For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our “anticanon,” universally reviled by the legal community as the “worst of the worst.” Our first claim in this Article is that the orthodoxy in modern conservative legal thought about Lochner is on the verge of changing. We believe that conservatives are ready, once again, to embrace Lochner— although perhaps not in name—by recommitting to some form of robust judicial protection for economic rights. Our second claim is that this impending change has been greatly facilitated by important modifications to the theory of originalism, which has served for nearly a half century as the intellectual framework for conservative legal thought. That intellectual framework has been evolving for decades, and it has now evolved to the point where it can plausibly accommodate claims that the Constitution protects economic liberty. These developments are revealing about how legal movements evolve generally. Sometimes the courts change the doctrine, and the theorists scramble to keep up. This is, roughly speaking, what happened with liberal legal thought in the second half of the twentieth century. Just when liberal legal theorists, reeling from the Lochner era, had settled on the view that the courts should exercise judicial review very sparingly—and perhaps never to enforce rights not specifically identified in the Constitution—the liberal Court began to exercise judicial review more frequently and aggressively, often to protect rights not clearly identified in the Constitution. Liberal theorists then struggled for years to develop an account of the appropriate judicial role that condemned Lochner but legitimized later cases protecting fundamental rights and vulnerable minorities. Modern conservative legal thought seems to be following the opposite progression: the theorists lead, the opinion leaders gradually sign on, and judges eventually follow. Whereas liberal judges created constitutional doctrine in the absence of a metatheory of constitutional interpretation—essentially building the house before the architectural blueprints were completed—conservatives have patiently waited for the theory to come together—for the blueprints to be drawn—before moving forward. But the plans are now largely ready, and we expect that it will not be long before the bulldozers break ground.
GW Paper Series
GW Law School Public Law and Legal Theory Paper No. 2015-10; GW Legal Studies Research Paper No. 2015-10
Colby, Thomas and Smith, Peter J., The Return of Lochner (2015). 100 Cornell L. Rev. 527 (2015); GWU Legal Studies Research Paper No. 2015-10; GWU Law School Public Law Research Paper No. 2015-10. Available at SSRN: http://ssrn.com/abstract=2594015