The Lochner Era of the SCOTUS...

5fish

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There was a time when Libertarianism run amuck in SCOTUS decision from 1897 to 1937... It was called the Lochner era... Libertarianism was not around but this era embraced it and I am not surprise Libertarians of today do not mention it in glowing terms, today...


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The Lochner era is a period in American legal history from 1897 to 1937 in which the Supreme Court of the United States is said to have made it a common practice "to strike down economic regulations adopted by a State based on the Court's own notions of the most appropriate means for the State to implement its considered policies".[1] The court did this by using its interpretation of substantive due process to strike down laws held to be infringing on economic liberty or private contract rights.[2][3] The era takes its name from a 1905 case, Lochner v. New York. The beginning of the era is usually marked earlier, with the Court's decision in Allgeyer v. Louisiana (1897), and its end marked forty years later in the case of West Coast Hotel Co. v. Parrish (1937), which overturned an earlier Lochner-era decision.[4]
The Supreme Court during the Lochner era has been described as "play[ing] a judicially activist but politically conservative role".[5] The Court sometimes invalidated state and federal legislation that inhibited business or otherwise limited the free market, including laws on minimum wage, federal (but not state) child labor laws, regulations of banking, insurance and transportation industries.[5] The Lochner era ended when the Court's tendency to invalidate labor and market regulations came into direct conflict with Congress's regulatory efforts in the New Deal.
Since the 1930s, Lochner has been widely discredited as a product of a "bygone era".[1] Robert Bork called Lochner "the symbol, indeed the quintessence, of judicial usurpation of power".[6] In his confirmation hearings to become Chief Justice, John Roberts said, "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law", concluding that the Lochner court substituted its own judgment for the legislature's findings.


snip... some libertarians do know about the Lochner era...

The Lochner era has, however, found support among some libertarian scholars who defend the Court for securing property rights and economic freedom.[32] Richard A. Epstein has contested the widespread allegation of judicial activism, stating that "[t]he conceptual defense of the Lochner era is much stronger on structural grounds than its manifold critics commonly suppose."[33] Michael J. Phillips, in the book The Lochner Court, Myth and Reality, makes the case that the conventional view of the Lochner era as deeply reactionary is misguided and that the Court's "occasional exercises of economic activism were not entirely, or even mainly, bad things."[34] In Rehabilitating Lochner, David Bernstein argues that many of the civil liberties and civil rights innovations of the post-New Deal Court actually had their origins in Lochner era cases that have been forgotten or misinterpreted.[35
 

5fish

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The start...

https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2368&context=faculty_publications

LOCHNER: THE CASE, THE ERA, AND THE SYMBOL In 1905, in its 5–4 decision in Lochner v. New York, 32 the Supreme Court invalidated a New York law prohibiting bakery employees from working more than ten hours per day or sixty hours per week. The Court held that the law impermissibly interfered with the liberty of contract protected by the Due Process Clause of the Fourteenth Amendment.33 Justice Peckham, writing for the majority, reasoned that the law was not necessary to protect bakery employees from an imbalance in bargaining power,34 to protect the public health,35 or to protect the health of bakery employees.36 Accordingly, the Court concluded that the law was not a “fair, reasonable and appropriate exercise” of the state’s police power, but rather was an “unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty.”37

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Justice Harlan (joined by Justices White and Day) and Justice Holmes filed dissenting opinions. Harlan agreed that the Fourteenth Amendment protects a liberty of contract, but he advanced a much more capacious view of the states’ police power and a much more limited view of the Court’s role in protecting the liberty of contract (and, perhaps, constitutional rights generally).38 In his view, the “liberty of contract is subject to such regulations as the State may reasonably prescribe for the common good and the well-being of society.”39 In reviewing a statute that interfered with the liberty of contract, Harlan would simply have inquired whether the “means devised by the State are germane to an end which may be lawfully accomplished”; as long as there was a “real or substantial relation between the means employed by the State and the end sought to be accomplished by its legislation,” the law was an appropriate exercise of the police power.40 In Harlan’s view, “a legislative enactment, Federal or state, is never to be disregarded or held invalid unless it be, beyond question, plainly and palpably in excess of legislative power.”41 Because “as all know, the air constantly breathed by [bakery employees] is not as pure and healthful as that to be found in some other establishments or out of doors,” Harlan concluded that the Court had no basis for disturbing the New York legislature’s judgment that “labor in excess of sixty hours during a week in such establishments may endanger the health of those who thus labor.

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Lochner was not the first Supreme Court decision to conclude that the Fourteenth Amendment protects a liberty of contract; that distinction rests with Allgeyer v. Louisiana, 48 which the Court decided eight years earlier.49 There is also substantial evidence that Lochner was not viewed as a particularly significant case when it was decided.50 Indeed, when the Court eventually departed from the general approach of which Lochner has become the exemplar, it never saw the need formally and explicitly to overrule the Lochner decision itself.
 
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