Lochner

new deal lochner

merri ok

scotus

https://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine

===

OMG

no lnx many

https://www.vox.com/scotus/23841718/edgelord-federal-judiciary-james-ho-fifth-circuit-abortion-guns

The edgelord of the federal judiciary

Imagine a Breitbart comments forum come to life and given immense power over innocent people. That’s Judge James Ho.

By Ian Millhiser Aug 26, 2023,

James Ho sits on a panel speaking as video of him is projected on a screen behind him at the Federalist Society’s 2022 National Lawyers Convention in Washington, DC.

Trump Judge James Ho speaks at a 2022 event hosted by the Federalist Society. Shuran Huang/Washington Post via Getty Images]

Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

If you could breathe life into 4chan, the dark corner of the Internet where shitposters, edgelords, Groypers, and trolls of all kinds thrive, and then appoint this new lifeform to the federal bench, you would have created Judge James Ho.

Ho, appointed by former president Donald Trump in 2018 to the United States Court of Appeals for the Fifth Circuit, recently argued that anti-abortion doctors may seek a court order banning a commonly prescribed abortion medication, because “doctors delight in working with their unborn patients — and experience an aesthetic injury when they are aborted.”

He’s written that a federal law prohibiting gun possession by people that a court has determined to be a “credible threat to the physical safety of [their] intimate partner” is unconstitutional. Among other things, Ho claimed that this law “should give us pause” because women getting a divorce sometimes seek such court orders as “a tactical leverage device” in their divorce proceedings.

Ho’s very first opinion as a judge, a dissenting opinion in a case he did not even hear, claimed that all laws limiting the amount that wealthy donors may give to political campaigns are unconstitutional.Under Ho’s understanding of the Constitution, nothing prevents Harlan Crow, the billionaire Republican donor famous for lavishing gifts on Justice Clarence Thomas, from funding an entire presidential campaign.

Also, speaking of Harlan Crow, Ho held his official ceremony swearing him in as a federal judge in Crow’s personal library.

Ho’s work, in other words, is often indistinguishable from that of a professional troll. He revels in taking deliberately provocative positions. He often joins a fairly extreme opinion written by a colleague, and then writes separately to take an even more extreme position. His judicial opinions mingle Fox News talking points, men’s rights activism, Federalist Society fantasies, and discredited legal doctrines that are now taught to law students to warn them of the Supreme Court’s worst mistakes.

Ho seems to never miss an opportunity to weigh in on a political controversy. When he’s not writing concurring opinions arguing that the Supreme Court should bring back the Lochner era, an age when conservative justices imposed their own laissez-faire ideology on the rest of the nation, he can often be found lecturing law schools on the evils of “cancel culture.”

(That said, Ho did not respond to a request to be interviewed for this piece.)

When I speak to other judges, I often hear them use a derisive word to describe this kind of behavior: “auditioning.” It’s an increasingly common practice among Republican judges itching for a promotion.

In his final years as a lower court judge, Justice Neil Gorsuch wrote several opinions laying out his plans to shift power from federal agencies to the judiciary — a high-priority issue for the Federalist Society, which played a key role in picking Trump’s judges and justices. These opinions reportedly “proved decisive” in the Trump White House’s decision to give Gorsuch a big promotion.

Similarly, in his final year as a lower court judge, Justice Brett Kavanaugh — who previously had a thin record on abortion — went out of his way to convey both in a published opinion and in a speech to a conservative think tank that he opposed Roe v. Wade. Trump picked Kavanaugh for the next seat to open up on the Supreme Court.

The most alarming thing about Judge Ho, in other words, isn’t his penchant for trolling. It is the very real possibility that he will be rewarded for it. No judge in America has auditioned harder for a Supreme Court appointment in a Republican administration. And, if the next president is Donald Trump, Trump has already shown that he prefers judges who go out of their way to show their loyalty to Republican causes.

What does Jim Ho’s version of the Constitution look like?

Lochner v. New York (1905) is one of a handful of decisions that legal scholars refer to as the “anti-canon” — a list of cases taught to law students as examples of how judges must never, ever behave. The list also includes the pro-slavery decision in Dred Scott v. Sandford (1857) and the segregationist decision in Plessy v. Ferguson (1896).

Ho wants to bring back Lochner.

Lochner stuck down a New York state law that limited, to 60 hours a week, the amount of time worked by bakery workers. At the time, these workers were typically paid by the day or by the week, so the law had prevented these workers from being forced to work extraordinarily long shifts for no extra pay.

Other cases applying Lochner’s reasoning struck down minimum wage laws and stripped workers of their right to unionize.

Lochner was grounded in what it described as the “right of the individual to ... enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” The idea was that, if a worker entered into a contract to work long hours for little pay, then the law could not alter this contract — even if the contract was itself the product of exploitation or desperation.

Lochner, in other words, not only stripped the government of much of its power to protect workers, it did so on the dubious ground that, by insisting that workers adhere to whatever exploitative employment contracts their bosses imposed upon them, the Court was actually defending the rights of those workers. The Court ultimately abandoned Lochner in West Coast Hotel v. Parrish (1937).

Ho picked an inauspicious case, Golden Glow Tanning Salon v. City of Columbus, to offer his love letter to Lochner. In it, a Mississippi tanning salon claimed that Covid era lockdowns violated the salon owner’s “right to work,” a common argument made by modern day libertarians who seek to revive Lochner. (A “right to work” is synonymous with Lochner’s so-called right to “enter into those contracts in relation to labor which may seem to him appropriate.”)

Though all three judges who heard Golden Glow agreed that the Supreme Court’s decisions repudiating Lochnerism prevented them from ruling in the tanning salon’s favor, Ho wrote a brief concurring opinion that relied heavily on scholarship by right-wing lawyers arguing that Lochner should be revived. He suggested that the anti-worker right recognized in Lochner has a “better historical grounding than more recent claims of right that have found judicial favor.” And he urged the Supreme Court to take up a pending case seeking to revive Lochner (the justices declined to do so).

Ho’s passion for the sorts of economic “rights” favored by Gilded Age robber barons is matched by his disdain for abortion. He wrote about the “moral tragedy of abortion” in one of his judicial opinions. And he’s urged his Fifth Circuit — which is already the most right-wing federal appeals court in the country, and is typically hostile towards reproductive freedom — to be even more aggressive in quashing abortion rights.

Just last week, for example, a three-judge panel that includes Ho attempted to ban the drug mifepristone, which is used in more than half of all US abortions. That decision will have no effect, because the Supreme Court preemptively blocked it last April — a pretty clear sign that even this very conservative Supreme Court thinks that the legal arguments against mifepristone are weak.

But Ho didn’t just join this attempt to ban the drug, in a case called Alliance for Hippocratic Medicine v. FDA,he wrote a separate opinion arguing that his colleagues were insufficiently hostile to abortion rights.

Technically, the Fifth Circuit’s majority opinion in Alliance did not purport to ban mifepristone outright, it merely ordered the FDA to reinstate restrictions on the drug that the agency abandoned in 2016. As a practical matter, this order would prevent the drug from being marketed in the United States for at least a few months, because it would take a long time for government regulators and the drug maker to comply with the pre-2016 rules. But Ho would have gone even further, ordering the FDA to rescind its decision to approve the medication way back in 2000.

There are so many errors in Ho’s legal reasoning that it would be tedious to list them all here. One of them is that the statute of limitations to challenge an FDA approval of a drug is six years. While there are legitimate reasons that time period can sometimes be extended, Ho can’t rescue a lawsuit that was filed more than two decades after mifepristone’s approval.

On guns, Ho joined the Fifth Circuit’s decision in United States v. Rahimi (2023), a decision the Supreme Court is likely to reverse in its upcoming term, holding that people who violently abuse their romantic partners or their partner’s child have a Second Amendment right to own a gun — even after a court proceeding determines that the abuser is “a credible threat to the physical safety of such intimate partner or child.”

Rahimi is another case where Ho joined an alarming decision written by one of his colleagues, and then wrote separately to argue for an even more extreme position.

Ho argues that one reason his court should be skeptical of a law seeking to disarm people subject to domestic violence restraining orders is that women who are not victims of abuse allegedly obtain these orders to “secure [favorable] rulings on critical issues such as [marital and child] support, exclusion from marital residence and property disposition.”

As evidence that this is a real problem that actually exists, Ho cites a handful of court decisions — including a 1993 decision by a court in New Jersey that invalidated a restraining order because of a lack of evidence that the man subjected to it was violent, and a 2005 incident where comedian David Letterman was briefly subject to a restraining order before a court tossed that order out.

The fact that Ho had to rely on decades-old cases in faraway jurisdictions to show that judges sometimes issue domestic violence restraining orders for invalid reasons is a sign that, maybe, this isn’t as big of a problem as Ho makes it out to be. Nevertheless, Ho would potentially arm hundreds of men who have murderous intentions in order to save someone like Letterman from having to go without a firearm for a couple of weeks.

Ho could be the future of the federal judiciary

Ho’s penchant for tacking to the right of his already quite reactionary colleagues marks him as an outlier, even within a conservative federal judiciary. But he’s hardly an extreme outlier, especially on the far-right Fifth Circuit.

In Collins v. Mnuchin (2019), for example, Ho signed onto an opinion by Judge Don Willett that threatened to invalidate every single action taken by the Federal Housing Finance Agency (FHFA), which was created in 2008 to stabilize the US housing market during a historic recession. Had Willett’s approach prevailed in the Supreme Court, it could have potentially collapsed the US housing market and triggered a global economic depression (the Supreme Court voted 8-1 against Willett’s approach).

Notably, however, Ho was one of a total of seven judges who signed onto Willett’s attempt to burn down more than a dozen years of work by a federal agency. There is no shortage of judicial arsonists on the Fifth Circuit.

Similarly, the Supreme Court will hear several cases in its upcoming term in which it is likely to reverse similarly aggressive decisions by the Fifth Circuit. Those most likely include the Alliance case about mifepristone, as well as the Rahimi guns case, and two decisions declaring the entire the Consumer Financial Protection Bureau unconstitutional and gutting the federal government’s power to enforce securities law.

The leading contenders for the Republican presidential nomination are already signaling that they want to pick justices who are well to the right of the three already very conservative justices Trump placed on the Supreme Court. In his infamous speech before the January 6 attack on the US Capitol, Trump said that he is “not happy with the Supreme Court” because they supposedly “love to rule against me.” (When Trump was president, the Court often manipulated its own procedures to rule in Trump’s favor, but the Court rejected his bid to overturn the 2020 election.)

Florida Gov. Ron DeSantis attacked Trump’s justices in June, claiming that “none of those three are at the same level of Justices Thomas and Justice Alito,” two justices who fairly consistently vote like Fifth Circuit judges.

Ho, meanwhile, is auditioning harder than anyone in the judiciary to catch Trump or DeSantis’s eye. And, even if the next Republican president decides to pick someone less flamboyant for the high court, they will have no shortage of candidates who are eager to light decades' worth of settled law — along with entire federal agencies — on fire.

===

pow esq rww 820

Eastman’s support for the Supreme Court’s infamous 1905 Lochner decision—which ushered in an era in which the court rejected economic and labor regulations—puts him in opposition to the late Antonin Scalia, who opposed the Lochner ruling.

Eastman has also taken a fringe position—one taken by Supreme Court Justice Clarence Thomas, for whom Eastman clerked—that the First Amendment’s ban on the establishment of religion does not apply to the states, and has argued that a state taxing people to support an official church, as some states did early in the nation’s history, was not all that coercive.

Harris and Eastman do have something in common. Both were candidates in the 2010 election for attorney general in California. Harris won, while Eastman was defeated in the Republican primary.

===

https://www.alternet.org/2019/03/trumps-judicial-confirmations-arent-changing-the-balance-of-the-courts-as-much-as-he-hoped-heres-why/

good news on trump packing noms:

Trump is not very productive on policy, but one note of solace for conservatives — and horror for liberals — is that he has been very good at getting judicial nominees through the Senate.

With the help of Senate Majority Leader Mitch McConnell (R-KY), who left numerous seats vacant under President Barack Obama and blocked qualified nominees in the hope of getting a Republican president to fill them instead, Trump has put two judges on the Supreme Court — one of whom weathered accusations of sexual assault — and flooded the appellate and district courts with new judges.

But even Trump’s judicial confirmations haven’t produced the dramatic conservative shift in the courts that Republicans had hoped. As the Huffington Post notes, one of the reasons is that most of the vacancies Trump is filling were already held by Republican-appointed judges anyway:

Russell Wheeler, a visiting fellow in the Brookings Institution’s Governance Studies Program, crunched the numbers on this in December and found that 19 of Trump’s 29 circuit judges were replacing judges selected by other Republican presidents. HuffPost updated his numbers:24 of the 36 circuit judges Trump has confirmed so far have replaced Republican picks.

What about the circuit court vacancies that Trump could still fill in his first term? Wheeler found in December that nine of 16 current and announced future vacancies were filled by Republican-chosen judges. HuffPost updated his numbers: Five of 10 current and future vacancies were or are still filled by Republican-chosen judges.

The lower court judges Trump are appointing will be the final deciders in the majority of federal cases, as the Supreme Court only takes 100 to 150 appeals from the roughly 7,000 annual cases before the 13 circuit courts.

These new judges are overwhelmingly young, anti-choice, anti-voting-rights conservative activists, often alumni of the hard-right Federalist Society — and many of them are flamboyant characters. John Bush, whom Trump seated on the Sixth Circuit, compared abortion to slavery. James Ho, on the Fifth Circuit, has suggested the wealthy should have the right to bribe regulators and accused judges who don’t agree with his hardline anti-abortion position of hating Christians. Don Willett, also on the Fifth Circuit, wants to bring back the Lochner doctrine, an extreme-right early 20th century judicial philosophy that holds that “contract rights” nullify virtually all laws regulating labor and businesses. Some of Trump’s judicial picks are so extreme and unqualified that even Senate Republicans rejected them, like Brett Talley, who defended the Ku Klux Klan in college writings.

While Trump’s ideological impact of the courts has advanced slowly so far, it is not as if there has been zero change — this month, the Third Circuit officially flipped to having a Republican majority.And while no other Democratic-majority appeals courts have enough vacancies for Trump to flip them yet, that could change if he wins a second term, and some of the older Democratic judges could retire or assume senior status. Then, of course, there’s the matter of Ruth Bader Ginsburg.

If the 2016 elections were a pivotal moment for the federal courts, the 2020 elections could be infinitely more so.

ref

yikes Lochner reboot!

https://thinkprogress.org/trumps-most-radical-nominee-since-neil-gorsuch-02d1bcabc8e0/

Justice Don Willett is charming.

Best known outside legal circles for his Twitter feed, @JusticeWillett, the Texas Supreme Court justice — and now a Trump nominee to a federal appeals court — tweets largely apolitical commentary about Calvin and Hobbes, his children, and Oxford commas. Many of his tweets are genuinely hilarious, and Willett is equally disarming in person. When I met him a couple years ago at a gathering of the conservative Federalist Society, he was genial, thoughtful, and surprisingly familiar with my work. The man knows how to endear himself to people.

This would all be well and good, if not for one other factor. This charming, intelligent, knowledgeable man also wants to dismantle much of the last 80 years of American law.

In a 2015 opinion laden with libertarian tropes and selective history, Willett called upon his court to revive a defunct doctrine once used to strike down minimum wage laws and gut workers’ right to organize. It’s a doctrine that that three of the Supreme Court of the United States’ most conservative members recently called out as “discredited” and “unprincipled.”

The “Lochner Era'

There are a handful of past Supreme Court decisions that belong to the constitutional “anti-canon” — the pro-slavery decision in Dred Scott, the Court’s pro-segregation decision in Plessy v. Ferguson, a 1918 decision striking down child labor laws. These are the sort of cases that law students are taught never to cite favorably in a brief. When they do come up in litigation, it is typically because one party accuses the other of make an argument reminiscent of an anti-canonical case.

Until recently, Lochner v. New York—which struck down a New York law providing that bakery workers could not work more than 60 hours a week — was viewed as part of the anti-canon by all but a fringe group of lawyers with little influence. Even Robert Bork, the Reagan Supreme Court nominee denied a place on the Court due to fears he was too rigidly conservative, labeled Lochner an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”

Lochner provided the basis for a host of decisions preventing progressive regulation of the workplace. Indeed, the four decade period in the late nineteenth and early twentieth century, when the Supreme Court effectively read a laissez-faireorthodoxy into several provisions of the Constitution, is known as the “Lochner Era” among legal scholars due to this case’s defining role in shaping the decisions of the day.

How Conservatives Abandoned Judicial Restraint, Took Over The Courts And Radically Transformed America]

One decision applying Lochnerheld that the law may not to used to compel “any person in the course of his business and against his will to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another” — a rule that, had it still been in effect in the 1960s, would have required courts to strike down the Civil Rights Act of 1964’s bans on employment discrimination and whites-only lunch counters.

In recent years, however, a group of mostly libertarian legal scholars have sought to pull Lochnerout of the anti-canon (one of the seminal texts of this movement is named “Rehabilitating *Lochner*“). Combining a mixture of true facts of dubious relevance, ad hominem attacks on Lochner‘s opponents, and doubtful historiography, these scholars seek to restore Lochner to the legitimate pantheon of legal decisions — and even to revive its doctrines.

Which brings us to Justice Willett’s opinion in Patel v. Texas Department of Licensing and Regulation. Willett’s concurring opinion in Patelis deeply steeped in the scholarship seeking to revive cases like Lochner. It quotes the Pope, Fredrick Douglass, Shakespeare, James Madison, Adam Smith, and Davy Crockett. And it buys wholeheartedly into libertarian ideas that would dismantle much of American government.

“Don’t Thread on Me”

Patel is a tribute to the increasing sophistication of lawyers fighting to restore cases like Lochner. It involves both an exceptionally dumb law and a bevy of sympathetic plaintiffs. It’s the sort of case where you very much want the plaintiffs, who were represented by a law firm that specializes in Trojan Horse lawsuits seeking to launder radical legal doctrines through cases involving real injustice, to prevail even if they don’t have any good legal arguments. It’s the sort of case that tugs at the heart, and that shuts down the part of the brain that makes judges think through the implications of what they are signing onto.

Texas law required eyebrow threaders — a practice where stray hairs are removed by cotton or polyester thread — to undergo a 750-hour training course that included a great deal of material unrelated to threading. It was an extraordinarily dumb law. Any sensible legislator would vote to repeal it.

But the fact that a law is ill-advised does not make it unconstitutional. And it does not mean judges should revive long-discredited doctrines in order to take it out.

The issue with Lochner was that it read dubious “rights,” such as a right to enter into labor contracts that called for very long hours and very low pay, into the Constitution itself. Chastened by this experience, the justices who rejected Lochner many decades ago decided that they should not be trusted with such a freewheeling power to invent new doctrines with hardly any connection to the text of the Constitution. Thus, the Court held that nearly all laws should be treated as presumptively constitutional, with exceptions for laws that violate an explicit provision of the Constitution, that single out certain minorities for inferior treatment, or that harm the democratic process itself.

This presumption of constitutionality ushered in a golden age of American democracy, where courts got out of the business of making economic policy and left these matters to leaders like Franklin Roosevelt or Lyndon Johnson. It also coincided with the massive expansion of American wealth and power that took place in the later two-thirds of the twentieth century.

Yet, for libertarian scholars, this golden age was an age of perdition, and the original sin was the presumption of constitutionality intended to ward of decisions like Lochner.

The leading scholar arguing this viewpoint is probably Randy Barnett, a Georgetown law professor who believes that most of the twentieth century is unconstitutional. Barnett has explicitly praised the *Lochner* decision. He’s even claimed that Social Security is unconstitutional.

Barnett’s core claim is that the presumption of constitutionality should be replaced by a presumption of unconstitutionality — courts should presume that most laws are unconstitutional, in Barnett’s view. Yet, being a skilled advocate, Barnett gives his presumption a much more appealing name. He calls it the “presumption of liberty.”

Which brings us to this excerpt from Justice Willett’s Patel opinion, where the judge rejects the post-Lochner consensus and restates Barnett’s philosophy:

In today’s age of staggering civic illiteracy—when 35 percent of Americans cannot correctly name a single branch of government—it is unsurprising that people mistake majority rule as America’s defining value. But our federal and state charters are not, contrary to popular belief, about “democracy”—a word that appears in neither document, nor in the Declaration of Independence. Our enlightened 18th and 19th-century Founders, both federal and state, aimed higher, upended things, and brilliantly divided power to enshrine a promise (liberty), not merely a process (democracy). . . . This case concerns the timeless struggle between personal freedom and government power. Do Texans live under a presumption of liberty or a presumption of restraint?

Nor is this passage Willett’s only shoutout to the writers seeking to revive cases like Lochner. Willett also explicitly rejects the argument, made by one of his colleagues in a dissenting opinion, that Lochnerism is something to be feared. “A wealth of contemporary legal scholarship is reexamining Lochner, its history and correctness as a matter of constitutional law, and its place within broader originalist thought,” he writes.

Willett notes that Justice Oliver Wendell Holmes, the justice who wrote the strongest dissent in the original Lochner case, also penned an odious opinion in Buck v. Bellholding that the state can sterilize individuals against their will. It’s an ad hominemargument that pro-Lochner scholars often repeat — if Holmes was so wrong in Buck, how could his opinion in Lochnerbe right! — but it’s also not a particularly strong argument. Buckwas an 8-1 decision, joined by many of the Court’s staunchest defenders of Lochner. The biggest lesson to be drawn from Buck is that the Supreme Court as a whole was full of terrible people in 1927.

Willett also favorably cites fringe libertarian thinkers such as Timothy Sandefur, a litigator for the conservative Goldwater Institute who has claimed that courts are required to follow decisions like Lochner even if the Constitution is amended to explicitly reject this view.

Willett’s opinion, in other words, is the picture of a man eager to roll back nearly a century of American law. It is the picture of a judge who believes he has far to little power — and that the people who are actually elected to make laws have too much ability to act. And it is the picture of a judge eager to seize more power and use it to implement doctrines that took America to a very dark place the first time around.

The Fox News of judges

If all of this discussion of legal scholarship and books written by largely unknown lawyers sounds obscure and arcane, that’s because it is. Most lawyers — indeed, most legal scholars and judges — are not familiar with neo-Lochnerite scholarship, much less the most cutting edge rebuttals to its claims. People like Barnett and Sandefur are influential in Federalist Society circles, but few people outside of the conservative legal community know who they are.

But that does not mean that they can be safely ignored. Much as conservative media outlets like Fox News and Breitbart have created an alternative universe of facts for their consumers, libertarian scholars have constructed an alternative history of the Constitution — some of it based in reality, much of it based in half-truths or outright misrepresentations.

If mainstream lawyers and judges are not familiar with these alternative facts, they will be poorly equipped to rebut them when judges like Willett write them into opinions like Patel. The age of the anti-canon, when judges could safely assume that decisions like Lochner were dead, buried, and incapable of resurrection, is coming to a close.

Justice Willett is many things. He is radical and deeply conservative. But he is also intelligent, charismatic, and skilled in the arts of persuasion. And he will probably soon be a federal appellate judge. His views can no longer be safely ignored.

gangs of am:

SURVIVAL OF THE FITTEST

But the initial success of the eight-hour movement proved ephemeral.

Although laws had been passed, most lacked penalties or enforcement

provisions. In addition, eight-hour laws provided a “free-contract”

exception, allowing employers to come up with different arrangements

if agreed to by workers. Samuel Gompers, leader of the American Federation

of Labor, concluded that seeking legislative reforms was a pointless

exercise. Only collective bargaining, he believe, could produce real

improvements in working conditions.

But collective bargaining itself faced an uphill battle due to a

growing wave of repression against labor organizers by corporate security

agencies, local police forces, and state militias. The Paris Commune

of 1871 was one trigger for the crackdown. The Commune was the first

major event to be communicated instantly by Trans-Atlantic cable, and

it produced profound fear among American elites. During the uprising,

thousands of workers and soldiers took control of Paris, elected their

own government, reopened shuttered factories as cooperatives, burned

the guillotine, and decreed separation of church and state. The Commune

roused American workers, who held meetings to raise money for

the French revolutionaries. At a demonstration for the eight-hour day in

New York attended by twenty thousand people, marching sections of

the International were met by shouts of “Vive La Commune.”

After two

months, Pariswas reoccupied by the French army, who killed some

30,000 people. An Englishman who was acquainted with a number of

rich Americans wrote that they shared “an uneasy feeling that they were

living over a mine of social and industrial discontent … and that some

day this mine would explode and blow society into the air.”

In the wake of the Commune, “communist” became an all-purpose

epithet. One seminary professor wrote that “today there is not in our

language, nor in any language a more hateful word than communism.”

...

The weekly schedule was either six or seven days, and some bakers

actually were required to work a 24-hour shift on Thursdays. Workweeks

as long as 114 or even 126 hours were reported. Under those

conditions, merely gaining a 12-hour day would represent a significant

improvement, and as late as 1881 bakers in New York City went on

strike to achieve that goal.

...

The Lochner decision, which overturned the New York Bakery

Act, made it clear that the Supreme Court subscribed fully to the Spencerian

notion that employees and employers had the constitutional right

to enter into any sort of contract they wished, unless that contract posed

an overt threat to “morals, health, safety, peace, and good order.”

Such

freedomof contract was seen as a clear example of the “liberty” guaranteed

to all citizens by the Fourteenth Amendment.And interfering with

such assertions of liberty violated the Fourteenth Amendment’s “due

process” provisions:“…nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.”

...For the Supreme

Court to invalidate legislation that attempted to address such obvious

real-world power imbalances showed just how radically pro-corporate

the Court had become.

Unable to dissuade his colleagues, Holmes watched the substantive

due process doctrine develop into such a potent weapon that by the mid-

1930s, the Supreme Court had used it to invalidate approximately 200

statutes, including child labor laws, laws limiting the length of the work

week, safety standers, worker injury compensation funds, and other issues.

As for the original intent of the Fourteenth Amendment, that of

protecting freed blacks from repressive legislation, Justice Hugo Black

later observed that in the first fifty years after the amendment was

adopted, “less than one-half of 1 percent” of the cases in which it was

invoked had to do with protection of African Americans, while 50 percent

involved corporations....

When the votes were counted Roosevelthad defeated Hoover by

seven million votes. Once in office, he quickly pushed Congress to enact

an intense flurry of legislative initiatives aimed at jump-starting the

economy. His efforts to rally public sentiment for his proposals had begun

during the Presidential campaign, in which Roosevelt took direct

aim at large corporate power.

As Roosevelt’s initiatives were enacted by Congress, the Supreme

Court responded by striking them down one after another. On February

5, 1937, the President turned up the pressure on the Court by asking

Congress for the authority to appoint an additional judge to the Supreme

Court for every judge who was over seventy and had not retired. This

would have allowed Roosevelt to add six new Justices. Roosevelt’s plan

to pack the Court died when it was rejected by the Senate Judiciary

Committee. Nevertheless, historians generally credit the initiative with

causing the Court to finally budge.

But according toJustice Owen J. Roberts, the member of the Supreme

Court whose defection to the pro-Roosevelt faction on the Court

gave it a one-vote majority, Roosevelt’s pressure tactics were of less

influence than the conditions of social unrest that prevailed across the

country. 157

...During his last term in office, Roosevelt proposed a “second Bill of

Rights” that would address issues of economic fairness and security. It

would guarantee the following: the right of all workers to employment

at an adequate wage, the right of farmers to a decent return on their

products, the right of small businessmen to protection from monopolies

and unfair competition, the right of all families to a home, the right of

everyone to education and medical care, and the right

...

After a long period of dormancy, interest in human rights began to

revive in the years leading up to World War II. In 1940 British science

fiction author H. G. Wells penned a modern updating of Jefferson, Lafayette,

and Paine. In the midst of the war, Penguin’s publication H. G.

Wells on the Rights of Man sold thousands of copies and was translated

into thirty languages. Wells had worked out many of his ideas in conversation

with a circle of socialist and pacifist friends that included A.

A. Milne, creator of Winnie the Pooh. His justification for human rights

was a simple one: “Since a man comes into this world through no fault

of his own. . .”

===

IRATE:

Lochner Era Supreme Court

Progressive Social Reform Overturned

The Lochner Era of the Supreme Court began in 1897 and ran until 1937. The case that marks the beginning of

this era is Allgeyer v. Louisiana, 165 U.S. 578 (1897). This era is named after the case Lochner v. New York, 198

U.S. 45 (1905). The case that marks the end of this era is West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

During this era, theSupreme Court invalidated an estimated 200 Populist and Progressive state reform measures

that regulated corporations and businesses in the interest of farmers, consumers, workers, and children. Among

the state statutes declared unconstitutional were rate and price controls, measures protecting women and

children in the workplace, wage and hour standards, and laws that promoted collective bargaining. (1)

The doctrine the Supreme Court created in order to invalidate these Populist and Progressive state reform

measures is called Substantive Due Process. The Due Process Clause of the 14th Amendment states ". . . nor

shall any State deprive any person of life, liberty, or property, without due process of law[.]"

This language sounds like a limitation that pertains solely to procedures. However, under the Court's new

doctrine, the new interpretation was a limitation on the substantive power of state legislatures to regulate

various areas of economic and non-economic life.

The Court primarily used an interpretation of the word "liberty" in the Due Process Clause in order to invalidate

the substance of state legislation. The Court interpreted many state statutes to be undue interference with a

private person's "freedom of contract" in employment situations as a taking of "liberty" without the due process

of law. (2)

The important point to note about this line of cases is that the Supreme Court created a new doctrine designed to

give corporations more constitutional rights under the 14th Amendment after the doctrine of corporate

personhood was created in the 1880s. Even though the doctrine of substantive due process was overruled by the

Supreme Court in 1937, it has the power to reinstate this or any similar doctrine that gives corporations more

constitutional rights.

(1) Allan Ides and Christopher N. May, Constitutional Law: Individual Rights, Second Edition, p 58 (second

edition, 2001)

(2) Steven L. Emanuel, Constitutional Law, p 145 (2003)

---

Adkins v. Children's Hospital of District of Columbia, 261 U.S. 525 (1923)

In Adkins, the U.S. Supreme Court held that federal minimum wage legislation for women and

children was an unconstitutional infringement of the corporate and individual liberty of contract

as protected by the due process clause of the Fifth Amendment.

Issue: Can Congress establish minimum rates of wages for women in the District of Columbia?

Rule: The right to contract about one’s affairs is a part of the liberty of the individual

protected by the due process clause of the Fifth Amendment.

Application: In 1918 Congress passed a law establishing a minimum wage for women and

children in Washington, D.C. A board of three members representing employers, employees,

and the public was constituted to set standards of minimum wages in the different occupations

in D.C., to determine “what wages are inadequate to supply the necessary cost of living to any

such women workers to maintain them in good health and to protect their morals”.

The Supreme Court stated that the D.C. legislation amounted to a price-fixing law; it is

impossible to know the true cost of a necessary minimum wage; “The relation between earnings

and morals is not capable of standardization.”; the necessities of the employer are ignored; the

19th Amendment has empowered women already as of four years earlier; and, if this is allowed,

then Congressional power could be used to set a maximum wage. Unthinkable.

In the landmark Supreme Court case of Lochner v. New York, 198 U.S. 45 (1905), the Supreme

Court held that “liberty of contract” was implicit in the due process clause of the 14th

Amendment. The Court rejected a New York law limiting the number of hours a baker could

work each day to ten, and limiting the number of hours that a baker could work each week to

60, saying it was an “unreasonable, unnecessary and arbitrary interference with the right and

liberty to contract”.

Transformation: The liberty of contract implied for corporations and individuals in the Fifth

Amendment must be applied to strike down minimum wage laws for women and children in

Wash, D.C. In balancing the power of Congress to regulate the health and safety of Washington,

D.C., female residents against the right of corporate and individual persons to contract at will,

the health and safety standards of real persons take second place. The general rule forbids

legislative interference with the freedom of corporations and individuals to make contracts.

The common “good of society as a whole cannot be better served than by the preservation

against arbitrary restraint of the liberties of its constituent members.”

Effect: Fixing minimum wages for Washington, D.C., women from $9 to $16.50 per week is

unconstitutional. Female and corporate persons are “free” to contract for higher or lower

wages.

Fictional Representational Story: I am Barbara Jackson, an African-American apprentice

laundry worker at Smith & Jones Laundry in Washington, D.C. The year is 1923. For the past

nine months, I have been receiving $9 per week to work long, hot, tiring days cleaning laundry

for corporate hotel clients. On April 20, 1923, I was told that I would have to negotiate my

weekly wage directly with my boss at the Smith & Jones Laundry because, the day before (on

April 19), the Supreme Court said I could no longer receive this already meager amount for my

labor. I have been told I will need to take a $1.50 cut per week, making it impossible for me to

provide shelter, food, and clothing for my three children.

Written by: Richard Hobbs Disclaimer: For educational purpose only

https://en.wikipedia.org/wiki/Lochner_era

The Lochner era is a period in American legal history from 1897 to 1937 in which the Supreme Court of the United States is said to have made it a common practice "to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies,"^[1] by using its interpretation of substantive due process to strike down laws held to be infringing on economic liberty or private contract rights.^[2][3] The era takes its name from a 1905 case, Lochner v. New York. The beginning of the era is usually marked earlier, with the Court's decision in Allgeyer v. Louisiana(1897), and its end marked forty years later in the case of West Coast Hotel Co. v. Parrish (1937), which overturned an earlier Lochner-era decision.^[4]

The Supreme Court during the Lochner era has been described as "play[ing] a judicially activist but politically conservative role."^[5] The Court sometimes invalidated state and federal legislation that inhibited business or otherwise limited the free market, including laws on minimum wage, federal (but not state) child labor laws, regulations of banking, insurance and transportation industries.^[5] Originating in the late 19th century, the Lochner era carried into the mid-1930s, when the Court's tendency to invalidate labor and market regulations came into direct conflict with Congress' regulatory efforts in the New Deal.

Since the 1930s, Lochner has been widely discredited as a product of a "bygone era".^[1] Robert Bork called Lochner "the symbol, indeed the quintessence, of judicial usurpation of power".^[6] In his confirmation hearings to become Chief Justice, John Roberts said, "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law," concluding that the Lochner court substituted its own judgment for the legislature's findings.^[7]

Origins

The causes of the Lochner era have been the subject of debate. Matthew J. Lindsay, writing in the Harvard Law Review, recounts the longstanding and widely accepted view in the decades since the New Deal:^[8]

According to progressive scholars, American judges steeped in laissez-faire economic theory, who identified with the nation’s capitalist class and harbored contempt for any effort to redistribute wealth or otherwise meddle with the private marketplace, acted on their own economic and political biases to strike down legislation that threatened to burden corporations or disturb the existing economic hierarchy. In order to mask this fit of legally unjustified, intellectually dishonest judicial activism, the progressive interpretation runs, judges invented novel economic “rights” — most notably “substantive due process” and “liberty of contract” — that they engrafted upon the Due Process Clause of the Fourteenth Amendment.

Cass R. Sunstein, in an influential essay from 1987, describes the Lochner era as the result of a Court which believed market ordering under common law to be part of nature rather than a legal construct and sought to preserve natural distribution of wealth against redistributive regulations:^[9]

The Lochner Court required government neutrality and was skeptical of government “intervention”; it defined both notions in terms of whether the state had threatened to alter the common law distribution of entitlements and wealth, which was taken to be a part of nature rather than a legal construct. Once the common law system came to be seen as a product of legal rules, the baseline from which constitutional decisions were made had to shift. When the Lochner framework was abandoned in West Coast Hotel, the common law system itself appeared to be a subsidy to employers. The West Coast Hotel Court thus adopted an alternative baseline and rejected Lochner era understandings of neutrality and action.

However, there is historical evidence that established baking companies in New York had formed an explicitly racist union and were attempting to shut off competition from new Italian and Jewish immigrant bakers who were willing to work longer hours. The law struck down in Lochner may well have been a prime example of a special, privileged interest using government power for anticompetitive reasons.^[10]

Howard Gillman, in the book The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence, argues that the decisions of the era can be understood as adhering to a constitutional tradition rooted in the Founding Fathers' conception of appropriate and inappropriate policymaking in a commercial republic. A central tenet of this tradition was that government should not exhibit favoritism or hostility toward market competitors (referred to as "class legislation", which Gillman equates with the modern notion of special interests), and that it should exercise its police power in a neutral manner so as not to benefit one class over another. This would make for a faction free republic, with the underlying assumption that the American economy could provide for all citizens and social dependency as had been observed in Europe could be avoided. These ideas, according to Gillman, had been inherited by the Lochnerian judges, whose jurisprudence reflected a good faith attempt to preserve a tradition that was increasingly being undermined by changing industrial relations in the United States.^[11]

This view has been criticized by David E. Bernstein, who claims that Gillman overstates the importance of class legislation on the jurisprudence.^[12] Bernstein has also criticized Sunstein's thesis, arguing in part that the notion of a common law baseline runs counter to numerous decisions in which the Court upheld statutory replacements of common law rules, notably in the field of workers' compensation.^[13] Bernstein's view is that the Lochner era demonstrates "the Justices' belief that Americans had fundamental unenumerated constitutional rights" which were protected by the due process clause of the Fourteenth Amendment.^[12] In discovering these rights, "[t]he Justices had a generally historicist outlook, seeking to discover the content of fundamental rights through an understanding of which rights had created and advanced liberty among the Anglo-American people."^[12]

Jurisprudence:{:(style="margin-right:0.25em"):}:[edit:{]}:

The constitutional jurisprudence of the Lochner era is marked by the use of substantive due process to invalidate legislation held to infringe on economic liberties, particularly the freedom of contract.^[14] Between 1899 and 1937, the Supreme Court held 159 statutes unconstitutional under the due process and equal protection clauses (excluding civil rights cases), and another 25 were struck down in reference to the due process clause coupled with some other provision.^[15] The Court's interpretation of the due process clause during the Lochner era has been dubbed in contemporary scholarship as "economic substantive due process".^[16] This doctrine can be divided into three elements:^[17]

The due process clauses of the Fifth and Fourteenth Amendments, which limits the federal and state government from making laws that deprive "any person of life, liberty, or property without due process of law", requires protection for individual liberties from state action, in the Lochner case, the liberty to "purchase and sell labor".
These liberties are not absolute and can be regulated for a limited set of purposes, including the "safety, health, morals, and general welfare of the public."
The Court may examine legislation in order to ensure that the means used by the legislature to further its legitimate purposes are well-designed to achieve those purposes and not unduly restrictive of market choices.

In addition, the Court limited the power of the federal government under the Commerce Clause; restricting Congress' ability to regulate industrial production.^[18][19] It also showed a marked hostility towards labor unionsand consistently voted to invalidate laws that aided union activity.^[13] This body of doctrine has been characterized as "laissez-faire constitutionalism", although this has been contested.^[8][13]

Scholars have noted that when the Fourteenth Amendment was adopted in 1868, 27 out of 37 state constitutions had Lockean Provisos which typically said: "All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring and possessing and protecting property: and pursuing and obtaining safety and happiness." As such clauses were "deeply rooted in American history and tradition," they likely informed the original meaning of the scope and nature of the fundamental rights protected by the Fourteenth Amendment in the eyes of Lochner-era Justices.^[20]

It should also be noted that two early cases that use substantive due process to protect civil liberties, Pierce v. Society of Sisters and Meyer v. Nebraska, were decided during the Lochner era. Michael J. Phillips writes that "due largely to their 'familial' nature, these two cases helped legitimize the modern substantive due process decisions creating the constitutional right to privacy."^[21]

Beginning:{:(style="margin-right:0.25em"):}:[edit:{]}:

Justice Rufus Wheeler Peckham wrote the majority opinion in Lochner v. New York.

The case of Mugler v. Kansas (1887) is often regarded as a precursor to the Lochner era and the doctrine of economic substantive due process.^[22] Mugler had been convicted of violating a Kansas statute prohibiting the manufacture and sale of alcohol. He argued in part that the statute was unconstitutional under the due process clause of the Fourteenth Amendment. The Court affirmed the conviction, but stated its willingness to review the legitimacy of a state using its police power as potentially incompatible with substantive rights guaranteed by the due process clause:

If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.

The Court first held that the due process clause of the Fourteenth Amendment protected an individual's "liberty to contract" in the 1897 case of Allgeyer v. Louisiana. In a unanimous opinion, the Court stated that Fourteenth Amendment liberty includes:

(...) the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.

In the era's namesake case of Lochner v. New York (1905), the Court struck down a New York State law limiting the number of hours bakers could work on the grounds that it violated the bakers' "right to contract". In the majority opinion in Lochner, Justice Rufus Peckham stated:

In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?

Timeline and illustrative cases:{:(style="margin-right:0.25em"):}:[edit:{]}:

The following Supreme Court decisions are usually considered to be representative of the Lochner era:

United States v. E. C. Knight Co. (1895), limiting Congress' power to prevent monopolies
Allgeyer v. Louisiana (1897), striking down state legislation prohibiting foreign corporations from doing business in the state
Lochner v. New York (1905), striking down state legislation limiting weekly working hours
Adair v. United States (1908), striking down federal legislation prohibiting railroad companies from demanding that a worker not join a labor union as a condition for employment ("yellow-dog contract")
Coppage v. Kansas (1915), striking down state legislation prohibiting yellow-dog contracts
State Board of Control v Buckstegge, 158 Pac 837, 842 (1916) Arizona Supreme Court striking down a new state pension law.
Adams v. Tanner (1917), striking down state legislation preventing privately owned employment agencies from assessing fees for their services
Hammer v. Dagenhart (1918), striking down federal regulation of child labor
Duplex Printing Press Co. v. Deering (1921), construing federal legislation not to exempt labor unions from antitrust lawsuits
Bailey v. Drexel Furniture Co. (1922), invalidating a federal tax on interstate commerce by employers hiring children
Adkins v. Children's Hospital (1923), striking down federal legislation mandating a minimum wage level for women and children in the District of Columbia
Nichols v. Coolidge, 274 U. S. 531 (1927)
Railroad Retirement Board v. Alton Railroad Co, 295 U. S. 330 (1935) striking down a compulsory contributory pension scheme for rail workers
Louisville Joint Stock Land Bank v. Radford, 55 Sup. Ct. 869 (1935)
United States v. Butler (1936), construing congressional taxing power to invalidate the Agricultural Adjustment Act
Carter v. Carter Coal Company (1936), striking down federal legislation regulating the coal industry

Ending

The Lochner era is usually considered to have ended with the overturning of Adkins v. Children's Hospital in the 1937 case of West Coast Hotel Co. v. Parrish. An often-cited account explaining the ending is that the Supreme Court bowed to political pressure after President Roosevelt's announcement of a legislative proposal to enlarge the Court.^[5] The Judicial Procedures Reform Bill of 1937 would have allowed for the President to appoint an additional Justice, up to a maximum of six, for every sitting member over the age of 70½. The official reason for the bill was that the older Justices were unable to handle the increasing workload; but it was widely recognized that the real purpose was to obtain favorable rulings on New Deal legislation that had previously been ruled unconstitutional.^[23] In West Coast Hotel, Justice Owen Roberts, who had previously voted to strike down similar legislation, joined the wing more sympathetic to the New Deal and upheld a Washington state law setting a minimum wage for women. Roberts' move came to be known as "the switch in time that saved nine" as Roosevelt's court-packing plan ultimately failed.

Chief Justice Hughes, however, wrote in his autobiographical notes that Roosevelt's court reform proposal "had not the slightest effect on our [the court's] decision," but due to the delayed announcement of its decision the Court was characterized as retreating under fire.^[24] Roosevelt also believed that because his re-election showed that the American people sided with the New Deal, Hughes was able to persuade Roberts to no longer base his votes on his own political beliefs and side with him in future cases regarding New Deal related policies.^[25]

This traditional interpretation of events has been disputed. Barry Cushman, in the book Rethinking the New Deal Court: The Structure of a Constitutional Revolution, argues that the real shift occurred in Nebbia v. New York (1934), in which the Court by a one-vote majority upheld state legislation regulating the price of milk. In Cushman's view, the laissez-faire constitutionalism that had been the distinctive feature of the Lochner era eroded after World War I as high unemployment made the regulation of labor relations an increasingly pressing concern. This development was accompanied by an evolving view of Congress' power under the Commerce Clause to regulate in the public interest. Gradually, the Court came to view the regulation of a previously delimited private sphere as a valid exercise of police power, and the decision in Nebbia signaled the undoing of a doctrinal distinction between public and private enterprise that had been the underlying principle for a free market approach to constitutional interpretation. Cushman contends, then, that the true cause for the demise of the Lochner era was not short-term political considerations by the Court, but an evolving judicial perspective on the validity of governmental regulation.^[26]

Alan J. Meese has pointed out that several members of the Court, even after the decision in West Coast Hotel, continued to apply Lochnerian premises.^[13] The decision did not overrule Lochner v. New York or any other liberty of occupation case not involving an attempt to require employers to pay a subsistence wage. It was not until Roosevelt began appointing new Justices, starting with Hugo Black in August 1937, that a majority was formed which completely rejected Lochnerian reasoning.^[13] In United States v. Carolene Products Co. (1938), the Court held that the constitutional authority of state and federal legislatures over economic matters is plenary, and that laws passed to regulate such matters are entitled to a presumption of constitutionality.^[27] Black, in a 1949 opinion upholding a state law prohibiting union discrimination, wrote that the Court by then had repudiated "the Allgeyer-Lochner-Adair-Coppage constitutional doctrine".^[28]

Assessment

The Lochner era has been criticized from the left for judicial activism, routinely overturning the will of Congress, and also for Court's failure to allow the political process to redress increasingly unequal distributions of wealth and power.^[29]

Criticism among conservative scholars has focused on the use of substantive due process as a vehicle for protecting rights not explicitly mentioned in the Constitution.^[13] Robert Bork called the Court's decision in Lochner v. New York an "abomination" that "lives in the law as a symbol, indeed the quintessence of judicial usurpation of power."^[30][31]

The Lochner era has, however, found support among some libertarian scholars who defend the Court for securing property rights and economic freedom.^[32] Richard A. Epstein has contested the widespread allegation of judicial activism, stating that "[t]he conceptual defense of the Lochner era is much stronger on structural grounds than its manifold critics commonly suppose."^[33] Michael J. Phillips, in the book The Lochner Court, Myth and Reality, makes the case that the conventional view of the Lochner era as deeply reactionary is misguided and that the Court's "occasional exercises of economic activism were not entirely, or even mainly, bad things."^[34] In Rehabilitating Lochner, David Bernstein argues that many of the civil liberties and civil rights innovations of the post-New Deal Court actually had their origins in Lochner era cases that have been forgotten or misinterpreted.^[35]

The Lochner era has notably been spotlighted by a number of non-American legal authorities as a cautionary tale of judicial overreaching, including Arthur Chaskalson, Antonio Lamer and Aharon Barak.^[36]

Notes:{:(style="margin-right:0.25em"):}:[edit:{]}:

^ :{Jump up to::(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^a ^b(https://en.wikipedia.org/wiki/Lochner_era#cite_ref-law.cornell.edu_1-1) "SORRELL v. IMS HEALTH INC". cornell.edu.
:{Jump up:(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^ Baumann, Nick (13 December 2010). "The Radicalism of Judge Hudson's Health Care Law Decision". Mother Jones. Foundation For National Progress. Retrieved 3 January 2011.
:{Jump up:(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^ Jacobs, Harvey M. (2003). *Private Property in the 21st Century: The Future of an American Ideal*. Edward Elgar Publishing Ltd. p. 36. ISBN 978-1-84376-327-7. Retrieved 5 January 2011.
:{Jump up:(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^ Jacobs, p. 47.
^ :{Jump up to::(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^a ^b(https://en.wikipedia.org/wiki/Lochner_era#cite_ref-agnew_5-1) ^c(https://en.wikipedia.org/wiki/Lochner_era#cite_ref-agnew_5-2) Agnew, Jean-Christophe (2005). *A Companion to Post-1945 America*. Wiley-Blackwell. p. 386. ISBN 978-1-4051-4984-6. Retrieved 6 January 2011.
:{Jump up:(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^ George Will Enlists In Campaign To Repeal 20th Century With Defense Of Lochner
:{Jump up:(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^ https://www.nytimes.com/2005/09/13/politics/politicsspecial1/13text-roberts.html?pagewanted=15&_r=0
^ :{Jump up to::(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^a ^b(https://en.wikipedia.org/wiki/Lochner_era#cite_ref-lindsay_8-1) Lindsay, Matthew J. (March 1, 2010). "In Search of 'Laissez-Faire Constitutionalism:{'}:" (PDF). Harvard Law Review. 123 (5). Retrieved 6 January 2011.
:{Jump up:(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^ Sunstein, Cass (1987). "Lochner's Legacy". Columbia Law Review. 87(5): 873–919. JSTOR 1122721.
:{Jump up:(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^ Paulsen, Calabresi, McConnell, & Bray, The Constitution of the United States, Textbook, Thomson Reuters (2010)
:{Jump up:(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^ Gillman, Howard (1995). *The Constitution besieged : the rise and demise of Lochner era police powers jurisprudence* (3rd print. in pbk. ed.). Durham: Duke University Press. pp. 22 ff. ISBN 978-0-8223-1642-8.
^ :{Jump up to::(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^a ^b(https://en.wikipedia.org/wiki/Lochner_era#cite_ref-bernstein_12-1) ^c(https://en.wikipedia.org/wiki/Lochner_era#cite_ref-bernstein_12-2) Bernstein, David E. (November 2003). "Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism". Georgetown Law Journal. Retrieved 3 January2011.
^ :{Jump up to::(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^a ^b(https://en.wikipedia.org/wiki/Lochner_era#cite_ref-bernstein2_13-1) ^c(https://en.wikipedia.org/wiki/Lochner_era#cite_ref-bernstein2_13-2) ^d(https://en.wikipedia.org/wiki/Lochner_era#cite_ref-bernstein2_13-3) ^e(https://en.wikipedia.org/wiki/Lochner_era#cite_ref-bernstein2_13-4) ^f(https://en.wikipedia.org/wiki/Lochner_era#cite_ref-bernstein2_13-5) Bernstein, David E. (November 2003). "Lochner's Legacy's Legacy" (PDF). Texas Law Review. 82 (1). Retrieved 7 January 2011.
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Bernstein, David E. Rehabilitating Lochner: Defending Individual Rights against Progressive Reform. Chicago: University of Chicago Press, 2011. ISBN 0-226-04353-3
Cushman, Barry. Rethinking the New Deal Court: The Structure of a Constitutional Revolution. Paperback ed. New York: Oxford University Press, 1998. ISBN 0-19-512043-4
Gillman, Howard. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. New ed. Durham, N.C.: Duke University Press, 1993. ISBN 0-8223-1642-0
Katz, Claudio, “Protective Labor Legislation in the Courts: Substantive Due Process and Fairness in the Progressive Era,” Law and History Review, 31 (May 2013), 275–323.
McKenna, Marian C. (2002). Franklin Roosevelt and the Great Constitutional War: The Court-packing Crisis of 1937. New York, NY: Fordham University Press. ISBN 978-0-8232-2154-7.
Sunstein, Cass R. "Lochner's Legacy." Columbia Law Review. 87:873 (June 1987).