Freedom of Contract and the “Political Economy” of Lochner v. New York
Abstract: In his much heralded dissent in Lochner v. New York, Holmes deployed scathing epigrams to condemn the Court’s decision upholding freedom of contract under the Due Process Clause of the Fourteenth Amendment. Two counts of Holmes’ indictment will be identified. They contain charges that will resonate through a century of criticism. First, that the Court imposed its own ideology on a neutral Constitution. Second, that the Court exceeded its authority by invalidating a regulatory statute within the police powers of the legislature, leading to mischievous consequences. The first count is discredited based on evidence from the founding period that exhibits an unmistakably Lockean pedigree, while an evaluation of the second is more nuanced, with the Court’s defenders of contractual freedom emerging as too restrained. Finally, an alternative grounding for liberty of contract is suggested, one that would have been more consonant with the Constitution’s underlying political ethos.
