Would Lochner v. New York Be Decided the Same Way Today?

The Supreme Court struck down a New York law limiting bakery employees to a 60-hour work week, holding that the statute violated the liberty of contract protected by the Due Process Clause of the Fourteenth Amendment. The 5-4 majority ruled that the regulation was not a valid exercise of the state's police power because it interfered with the freedom of employer and employee to negotiate working conditions. Justices Harlan and Holmes wrote notable dissents.

The Lochner era, spanning roughly from 1897 to 1937, saw the Court strike down numerous economic regulations on substantive due process grounds. This period ended decisively with West Coast Hotel Co. v. Parrish (1937) and the Court's subsequent deference to legislative economic judgments during the New Deal. For decades, 'Lochnerism' has served as an epithet in constitutional law, signifying illegitimate judicial activism in overriding democratic economic policy choices.

The modern Court applies rational basis review to economic regulations, a standard so deferential that it is almost never fatal to government action. Under this framework, legislation need only bear a rational relationship to a legitimate governmental interest, and the Court will uphold the law even if the legislature's actual reasoning is unknown, so long as any conceivable rational basis exists. This represents a complete repudiation of Lochner's approach to economic regulation.

However, there has been a notable resurgence of interest in economic liberty in some judicial and academic circles. Several Supreme Court justices and lower court judges have questioned whether rational basis review provides adequate protection for economic rights, and libertarian legal organizations have mounted challenges to occupational licensing laws and other economic regulations. While these efforts have not restored Lochner-era jurisprudence, they suggest an ongoing tension in how the Court balances economic freedom and democratic governance.

Under prevailing constitutional doctrine, Lochner would not survive. Modern rational basis review of economic legislation represents an almost insurmountable barrier for challengers. A maximum-hours law for bakery workers would easily satisfy rational basis scrutiny, as the state could point to worker health and safety, reduction of workplace accidents, and public health concerns as legitimate governmental interests. The legislature's means—limiting hours—would be rationally related to these interests.

The doctrinal shift away from Lochner reflects a deeper change in the Court's understanding of its institutional role in reviewing economic legislation. The post-1937 Court recognized that the judiciary lacked the competence and democratic legitimacy to second-guess legislative judgments about economic policy. This institutional humility, born of the confrontation between the Court and the New Deal, has become a deeply entrenched feature of modern constitutional law.

That said, there are pockets of modern jurisprudence where echoes of Lochner can be detected. The Court's willingness to subject certain property rights claims to heightened scrutiny under the Takings Clause, and the revival of nondelegation concerns, suggest that economic liberty has not been entirely abandoned as a constitutional value. Some scholars argue that the Court's approach to substantive due process in the personal liberty context—particularly in cases like Lawrence v. Texas—employs a form of heightened scrutiny that Lochner's proponents would recognize.

Nevertheless, no current justice has advocated a return to Lochner-era review of economic regulation. Even justices sympathetic to economic liberty, such as Justice Thomas, have pursued these concerns through other doctrinal avenues rather than resurrecting substantive due process for economic rights. The specific holding of Lochner—that maximum-hours laws violate liberty of contract—would be rejected unanimously by any plausible configuration of the modern Court.

The scholarly rehabilitation of Lochner has been one of the most surprising developments in constitutional law scholarship. David Bernstein's 'Rehabilitating Lochner' argues that the decision was grounded in legitimate concerns about special-interest legislation and was not the product of judicial class bias. Bernstein contends that the New York bakery law was actually an anti-competitive measure backed by large unionized bakeries seeking to disadvantage smaller immigrant-owned operations. This revisionist history has sparked significant debate about whether Lochner was wrong in principle or merely in application.

On the other side, scholars like Cass Sunstein maintain that Lochner's fundamental error was treating the existing distribution of wealth and bargaining power as natural and pre-political, thereby constitutionalizing a particular economic ideology. This critique resonates with progressive concerns that the modern Court's approach to deregulation and property rights effectively reinstates Lochner-era assumptions through different doctrinal vehicles. The debate ultimately raises foundational questions about the proper relationship between constitutional law and economic theory.

• West Coast Hotel Co. v. Parrish (1937)
• Williamson v. Lee Optical (1955)
• Nebbia v. New York (1934)
• BMW of North America v. Gore (1996)
• Whole Woman's Health v. Hellerstedt (2016)