Lochner Conference in Boston

Randy Barnett of the Volokh Conspiracy notes that he will be moderating a conference at Boston Universit School of Law on the centenary of Lochner v New York.

In Lochner, the Supreme Court held that a state maximum hours laws for bakery workers violated the Due Process Clause of the Fourteenth Amendment because it interfered with the liberty of contract. (The case was decided in 1905, and the law review issue in which the paper are to be published will appear in 2005.) The case later came to be reviled by the Supreme Court and constitutional law professors, though in recent years it has received somewhat more sympathetic treatment by some legal academics.

For those of you keeping track at home, Lochner is a textbook case of judicial activism and has become almost synonymous with the concept. Judges who legislate from the bench are often said to "lochnerize" the issue. Why this is the case is something of a mystery to me, since it was not the first example of such behavior and not a particularly egregious one at that. I suspect it may have gotten its evil reputation because it was one of the last such decisions to lean in a conservative direction. ("Conservative" in this case meaning "in the interest of commerce and free-markets", not judicially conservative.) Shortly after this time social theory in the US began to drift toward the left, culminating in the quasi-socialism of the New Deal era.

I find it somewhat troubling that this case is now gaining sympathy, and seems to have been since the 1980s. While I agree with the political theory in Lochner, its constitutional theory is just as deplorable as any other instance of judicial activism. I would rather see conservatives win this argument on principle -- by virtue of persuasion and education of the voting public -- rather than turn to the use of judicial dictatorship, however benevolent.