The Myth of Laissez-Faire Constitutionalism: Liberty of Contract during the Lochner Era

Authors

David N. Mayer

Abstract

The Article examines the U.S. Supreme Court's protection of liberty of contract as a fundamental constitutional right during the forty-year period from 1897 until 1937, the so-called "Lochner era," named for the Court's best-known liberty-of-contract decision in 1905, Lochner v. New York. The Article shatters many myths about this era, particularly the notion that the Court was engaged in so-called "laissez-faire constitutionalism," which was derived from Justice Oliver Wendell Holmes's famous dissent in Lochner. Although Holmes's characterization of the majority's decision in Lochner as activist has shaped the orthodox view, both Holmes and the orthodox view are clearly wrong-unfair caricatures of what the Court was really doing in its liberty-ofcontract jurisprudence. It is the constitutional law equivalent of a modem urban legend. Among other things, the Article explains liberty-of-contract jurisprudence on its own terms, distinguishing it from true "laissez-faire constitutionalism," and showing that, rather than engaging in judicial activism, the justices were adhering to objective, wellestablished principles of constitutional law.

Recommended Citation

David N. Mayer, The Myth of Laissez-Faire Constitutionalism: Liberty of Contract during the Lochner Era, 36 Hastings Const. L.Q. 217 (2009).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol36/iss2/2