Lochner, Liberty, Property, and Human Rights
We are here to mark the centennial of Lochner, a seemingly minor case in which the U.S. Supreme Court struck down a state law limiting the working hours of bakers and thus triggered an enduring controversy over the proper roles of legislatures and courts in setting the boundaries of private rights. This opening century of the third millennium is witnessing the early stages of adjudication of claims of individual rights under several international declarations and conventions. The “rule of law” and “human rights” movements are both attempting to spread regard for individual rights and will result in increased levels of judicial interpretation of these claims. When that occurs, the legacy of Lochner will be at the forefront of judicial inquiry.
American arguments over the role of “economic” and “personal” rights have endured for over 150 years. They spilled into the international arena as post-World War II activists promoted “second generation” rights of social and economic welfare. At the same time, the breakup of the Soviet Union and collapse of communism fueled the claim that property rights and limited government were essential to the existence of rights of conscience and autonomy. Perhaps a truly socialized economy lacking rights of private ownership could still respect rights of con-science, expression, and a general level of autonomy that we could call the right to be left alone. But it is difficult to find an example of this in history.
