Lochner: Definitely Wrong, but for What Reason?

The Supreme Court's decision in Lochner v. New York (1905), as the representative of the various other cases in which the Court used a similar principle around the first third of the twentieth century, is one of those cases that everyone loves to criticize. In that case, the Court held that state maximum-hours laws for bakers were unconstitutional because they violated the Fourteenth Amendment's Due Process Clause. That involved, first, holding that the Due Process Clause includes substantive limitations on what kinds of laws legislatures can enact, and second holding that the life, liberty, and property interests protected by that Clause include some sort of protection against maximum-hours laws, typically referred to as the "right to contract." The Court used similar "substantive due process" logic to strike down a whole bunch of left-wing labor laws around the same time.

This "Lochner era" is really, really unpopular. Most people tend to criticize it on the grounds that the "right to contract" is a fiction, a bit of political ideology that the Justices at the time happened to like and decided to read into the Constitution where never it was truly to be found. A lot of people, quite rightly, deny that "substantive due process" is valid at all, although some of us who deny its validity argue that the Privileges or Immunities Clause, directly on the other side of a comma from the Due Process Clause, provides a perfectly legitimate vehicle for doing anything you might want to do under substantive due process. New Deal liberals, subsequently joined by a certain kind of conservative, argued that the problem with the Lochner Court was its activism and lack of restraint, its failure to show deference to popularly-elected legislatures. Liberals, who might not entirely reject the idea of the Court being activist and not particularly deferring to legislatures, might just say that the "right to contract" is just the wrong unenumerated substantive right, not that the whole business of finding such unenumerated rights is illegitimate.

But I wonder whether the truth isn't that the Court invented the right to contract but rather that it exaggerated it. Is it really plausible to say that there is no right to contract protected by the Constitution? If one accepts the logic that says that, yes, the Constitution offers protections for contracts, but it only protects existing contracts against being set aside by the states, and after all one cannot contract to do something which is illegal, then why shouldn't the state be able to pass a law against all contracts? That wouldn't impair the obligation of contracts, after all, only prevent new contracts being created. Or maybe just a law against one person agreeing to do work in exchange for another person's giving them money. Or a law against such labor contracts but only when it comes to, say, the medical profession?

I think it apparent that these laws would be invalid, on the grounds of a right to contract, protected under the Fourteenth Amendment's Privileges or Immunities Clause. The reason I can say that without supporting Lochner is that these laws attack the very concept of being able to make contracts, while things like minimum-wage and maximum-hour laws are regulations created, among other things, to keep the people whose very rights are at issue here from getting screwed over, and also to stop their contracts from indirectly screwing everyone else over at the same time. So there is a right to contract, it just doesn't work to prevent any public regulation that limits the stuff you're allowed to make contracts to do. Lochner, therefore, is wrong in its interpretation of the very concept it stands for. It's right there in the decision, where they say that they can't imagine any reason for a law like the one at issue. A whole lot of people could have told them what the reasons were. Probably the lawyers in the case did tell them what those reasons are.

Incidentally, it's worth remembering that a "right to privacy" is sort of dominant vis-a-vis a "right to contract" or even a "right to property." By property, after all, we mean private property. Contracts are private arrangements between two mutually consenting people. Insofar as the Constitution has any sort of general notion of property rights, or contract rights, or what-have-you, it also has a notion of privacy rights. That doesn't prove by itself that the privacy right extends to areas of personal privacy, but I think it's an important connection to make.