The prevalence in the field 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 Lochner’s principles. As David Bernstein, a law professor at George Mason University, argues in his 2012 book, “Rehabilitating Lochner,” proponents of freedom of contract were “originalists, trying to adhere to what they saw as as the constitutional foundations of the framers of the 14th Amendment.”
Lochner’s case is clearly rooted in the Dobbs decision. Writing for the majority, Justice Samuel Alito said rights not explicitly mentioned in the Constitution must be “deeply rooted in the history and tradition of this nation” and “implicit in the concept of ordered liberty”. Unlike the right to abortion, freedom of contract is widely considered to meet this definition.
Since the adoption of the Declaration of Independence 246 years ago, the freedom to work and enter into contracts has been considered part of the “inalienable rights” of “life, liberty and the pursuit of happiness”. The founders were inspired by the work of the English philosopher John Locke, who identified “life, liberty and property” as inalienable rights and considered self-ownership as a form of property. The 14th Amendment echoes Locke’s language: “No state shall deprive any person of life, liberty, or property without due process.”
In fact, the idea that citizens had a basic right to enter into contracts, especially in relation to their trade or employment, was so prevalent by the time the 14th Amendment was ratified in 1868 that Lochner hardly thought of it. discussed. The opinion simply asserted that these New York bakers had the right to enter into a contract within the framework of “the liberty of the individual protected by the 14th Amendment”.
The right to contract, even in Lochner, was not universal. The legitimate exercise of state police powers prevailed over contractual law. People could not make 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 dangerous. But the court found nothing inherently dangerous about the cooking.
Yet many subsequent government regulations that are now taken for granted infringed on this freedom of contract. In 1923, for example, the court struck down a minimum wage. (Libertarians have long argued that a minimum wage is both bad economic policy and an attack on individual freedom, especially damaging to those at the bottom of the economic ladder.) In the post- Lochner, that decision has been reversed.