The dominance on the court of “originalism,” the doctrine that interprets the constitution and its amendments as they would have been understood at the time they were written, also bodes well for the principles of Lochner. As David Bernstein, a law professor at George Mason University, contends in his 2012 book, “Rehabilitating Lochner,” proponents of a freedom of contract were “originalists, trying to adhere to what they saw as the constitutional underpinnings of the 14th Amendment’s framers.”
The case for Lochner is plainly embedded in the Dobbs decision. Writing for the majority, Justice Samuel Alito said that rights not explicitly mentioned in the Constitution had to be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Unlike a right to abortion, freedom of contract is widely believed to meet that definition.
Since the Declaration of Independence was adopted 246 years ago, the freedom to work and to make contracts has been seen as part of the “inalienable rights” of “life, liberty and the pursuit of happiness.” The founders drew on the work of the English philosopher John Locke, who identified “life, liberty and property” as inalienable rights and considered ownership of the self a form of property. The 14th Amendment echoes Locke’s language: “nor shall any state deprive any person of life, liberty or property without due process of law.”
In fact, the notion that citizens had a basic right to enter into contracts, especially regarding their trade or employment, was so pervasive by the time the 14th Amendment was ratified in 1868 that Lochner barely discussed it. The opinion simply asserted that those bakery workers in New York had a right to make a contract as “part of the liberty of the individual protected by the 14th Amendment.”
The right to enter into contracts, even in Lochner, was not all-encompassing. The legitimate exercise of the state’s police powers trumped a right of contract. People couldn’t enter into illegal arrangements, and the state was free to protect the health and safety of workers. Lochner explicitly upheld regulations protecting miners, whose work was inherently unsafe. But the court found nothing inherently dangerous about baking.
Still, many subsequent government regulations that are now taken for granted infringed on this freedom of contract. In 1923, for instance, the court struck down a minimum wage. (Libertarians have long argued that a minimum wage is both bad economic policy and an infringement on individual liberty, especially harmful to those on the lowest rung of the economic ladder.) In the post-Lochner era, that decision was reversed.