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

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 […]