Alito’s Junk History About Lochner

Littered throughout Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization, which eliminated the constitutional right to abortion, are disparaging comments about a 1905 case in which the Supreme Court overturned a state economic regulation.

“On occasion,” Alito wrote in Dobbs, the Court “has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York.” The Lochner decision was both “unprincipled” and “erroneous,” Alito declared. He even placed Lochner alongside Plessy v. Ferguson (1896), the notorious ruling which enshrined the vile doctrine of “separate but equal.”

Alito is not the first judicial conservative to attack Lochner. The late Robert Bork, a federal judge who almost made it onto the high court, denounced Lochner as “the symbol, indeed the quintessence, of judicial usurpation of power.” For conservatives like Bork and Alito, the problem with Lochner is that the ruling recognized a constitutional right that (in their view) does not and should not exist. “To this day,” Bork wrote, “when a judge simply makes up the Constitution he is said ‘to Lochnerize.'”

The problem with the Bork/Alito view of Lochner is that it is wrong as a matter of constitutional text and history. Indeed, the drafting and ratification history of the 14th Amendment make clear that the amendment was originally understood to protect a broad range of unenumerated rights, including the right to economic liberty, sometimes called liberty of contract, which was the very right at issue in Lochner.

Consider the words of Rep. John Bingham, the Ohio Republican who chiefly authored the first section of the 14th Amendment, which reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” As Bingham told the House of Representatives, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” include “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.” In other words, the 14th Amendment was designed to protect, among other things, an unenumerated right to economic liberty.

Even those who opposed the 14th Amendment’s ratification said as much at the time. For example, Rep. Andrew Jackson Rogers (D–N.J.) complained to the House in 1866 that “all the rights we have under the laws of the country are embraced under the definition of privileges and immunities.” “The right to contract is a privilege,” he observed, adding, “I hold if that [the 14th Amendment] ever becomes a part of the fundamental law of the land, it will prevent any state from refusing to allow anything to anybody embraced under this term of privileges and immunities.”

To say the least, the fact that both advocates and opponents of the 14th Amendment agreed on its meaning at the time of ratification is strong originalist evidence in support of the Lochner Court’s reasoning and outcome. Contrary to the junk history peddled by Bork and Alito, Lochner is not a dirty word.