Foreword: What’s so Wicked About Lochner?
I am honored to have been invited to provide some opening remarks to this fascinating symposium on Lochner v. New York, the case that, like the Wicked Witch of the West, so many law professors love to hate. The articles in this issue are far too diverse to provide the basis of a coherent comment, so I shall not attempt to do so. Instead, I will offer my own brief analysis of Lochner and what I think was really wrong with this much reviled opinion from the perspective of the original meaning of the Fourteenth Amendment.
When I was a student in constitutional law, I became disillusioned with the Constitution. It seemed that each time we came to one of the good parts that limited government powers—such as the Commerce Clause, Necessary and Proper Clause, and Tenth Amendment—or protected liberty—such as the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth—we would read how the Supreme Court had interpreted them to eliminate any barriers they might have posed. Supreme Court opinions that limited federal or state powers were few and far between.
