A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights

09 Jun 2009 05:49pm Victoria F. Nourse 

This article challenges the standard narrative of the Lochner era by challenging one of its most basic assumptions: that the idea of right existing at the beginning of the twentieth century was the modern notion of right-as-trump. Precisely the opposite view prevailed during the first two decades of the century: rights could easily be trumped by the common welfare and police power. If this critique is correct, it not only upsets contemporary views of the Lochner era, it also challenges the basic dichotomy implicit in the debate. On one view, the conventional one, Lochner was the product of politics, on the other revisionist view, it was the product of law. But neither argument is correct. There were two stories of Lochner that once lived side-by-side, one a story of elite discourse within courts, a discourse in which rights could be trumped by the police power, and a simultaneous and highly public discourse, promoted by prominent public figures, such as Theodore Roosevelt, in which rights were strong—strong enough to thwart majorities and transform people’s lives. Our constitutional system reflects, with respect to the most important political issues, a “dualist” form of constitutional review—one an elite practice of courts, the other a practice of popular constitutionalism. The great irony of Lochner’s history is how these stories came to switch places, how a popular constitutional story of strong rights, one largely forged in the public square, became a story that is thought today, albeit wrongly, to be one of law. It is not enough any longer to rehash the old realist debates about a dichotomous law or politics. A new legal realism invites us to understand the relationship of law to politics in all its complexity by identifying principles of translation and mutual interaction.

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