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87 Colum. L. Rev. 873 (1987)
Lochner's Legacy

handle is hein.journals/clr87 and id is 887 raw text is: COLUMBIA LAW REVIEW VOL. 87 1987 NO. 5 LOCHNER'S LEGACY Cass R. Sunstein* INTRODUCTION Constitutional law tends, to define itself through reaction to great cases. The defining case for the last several decades was Brown v. Board of Education '-an example of social reorganization, in the interest of a racial minority, brought about through the judiciary. Roe v. Wade2 has to some extent played this role for the past decade, and its status as a defining case may grow larger in the next generation. But for more than a half-century, the most important of all defining cases has been Lochner v. New York.3 The spectre of Lochner has loomed over most im- portant constitutional decisions, whether they uphold or invalidate gov- ernmental practices.4 In the different answers to the question, what was wrong with the decision in Lochner?, can be found the various posi- * Professor of Law, University of Chicago. This is a revised version of the Samuel Rubin lecture, delivered while the author was Samuel Rubin Visiting Professor of Law at Columbia Law School in the fall of 1986. The author would like to thank Bruce A. Ackerman, Akhil Amar, Richard Briffault, Stephen Ellman, Richard Epstein, Richard Fallon, Terry Fisher, George Fletcher, Philip Frickey, Wendy Gordon, Kent Greenawalt, Stephen Holmes, Pamela Karlen, Andrew Kaufman, Larry Kramer, Anthony T. Kronman, Daniel Meltzer, Frank Michelman, Geoffrey Miller, Martha Minow, Henry P. Monaghan, Richard A. Posner, Steven Shiffrin, Richard B. Stewart, Geoffrey R. Stone, David Strauss, Peter L. Strauss, Laurence H. Tribe, Mark V. Tushnet, and Roberto Un- ger for helpful comments. Participants in the legal theory workshops at the Harvard, New York University, University of Minnesota, and University of Pennsylvania law schools also gave valuable help. Daniel B. Rodriguez provided research assistance and useful comments. 1. 347 U.S. 483 (1954). 2. 410 U.S. 113 (1973). 3. 198 U.S. 45 (1905). 4. The most recent example is Bowers v. Hardwick, 106 S. Ct. 2841 (1986), where the Court rejected a claim that a state prohibition of sodomy among consenting adults violated the due process clause. According to the Court: The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demon- strated by the face-off between the Executive and the Court in the 1930's, which resulted in the repudiation of much of the substantive gloss that the Court placed on the Due Process Clause of the Fifth and Fourteenth Amend- ments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Id. at 2846. It is this view of the lesson of the Lochner period that is questioned here. 873

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