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To say that the Supreme Court's decision in Lochner v. New York is infamous is an understatement. Scholars remember Lochner for its strong right to contract and laissez-faire ideals--at least that is the conventional account of the case. Whether one concludes that Lochner leads to the judicial activism of Roe v. Wade, or foreshadows strong property rights, the standard account depends upon an important assumption: that the Lochner era's conception of fundamental rights parallels that of today. From that assumption, it appears to follow that Lochner symbolizes the grave political dangers of substantive due process, with its "repulsive connotation of value-laden" judicial review.

This article's thesis is that the conventional account is based on presentist notions of right imposed upon the past. Today, fundamental rights invoked under the Due Process Clause are presumed "fatal in fact," but in 1905 when Lochner was decided, rights claims were common but rarely fatal. Today, fundamental rights trump the general welfare, whereas in 1905, under the police power of the state, the general welfare trumped rights. Today, courts define unenumerated rights in positive terms; they struggle to define the "right to die" or the "right to reject life-saving" treatment. Then, courts assumed rights existed prior to any written constitution, and enumeration was no grand ideal--rights were defined negatively by drawing limits on federal and state power. As the Fourteenth Amendment itself proclaimed, liberty and property could be deprived subject to "due process," which meant rights were subject to a limit defined by the courts as the "police power." In this sense, the fundamental rights jurisprudence of the Lochner period was the mirror image of today's notion of right-as-trump. Today, no constitutionalist would mistake rational basis for strict scrutiny, but this is precisely what we do when we assume that Lochner-era courts adopted a strong, trumping view of fundamental rights.

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97 Cal. L. Rev. 751-799 (2009)