Note: This is an educational course, not legal advice.
Substantive due process asks whether a law takes liberty or property in a way no procedure can fix. Its first great chapter was about economic liberty: in the 1890s the Court began to read the "liberty" in the Fourteenth Amendment to include the freedom to make contracts. The decades that followed (about 1897 to 1937) are called the Lochner era, after its most famous case.
Why it works
The Lochner Court did not strike down every law. It asked whether a law was a real health or safety measure or a forbidden attempt to adjust bargaining power between employer and worker. It upheld an eight-hour limit for miners (Holden v. Hardy (1898)), and in Muller v. Oregon (1908) it unanimously upheld a ten-hour limit for women in factories and laundries, relying on the long brief Louis Brandeis filed with social and medical data. But it struck down a minimum wage for women in the District of Columbia in Adkins v. Children's Hospital (1923). Supporters of the era's cases saw courts protecting individual freedom from special-interest laws; critics saw judges reading their own economic views into the word "liberty." Both views are still argued today, and "Lochnerizing" is used as a criticism by judges of different philosophies.
Key idea
Lochner v. New York (1905), 5 to 4, struck down a maximum-hours law for bakers as a violation of liberty of contract under the Due Process Clause. The era's Court upheld many labor laws (Holden, Muller) and struck down others (Lochner, Adkins), asking whether a law truly served health or safety.
Worked example: Upheld or struck?
In 1898 Utah limits underground miners to eight hours a day. How did the Court of that era rule?
- Mining was dangerous work, so the law fit the health and safety power.
- In Holden v. Hardy the Court upheld it.
Answer: Upheld (Holden v. Hardy, 1898).
Worked example: Holmes's point
Holmes's Lochner dissent said the Constitution does not enact "Mr. Herbert Spencer's Social Statics." What did he mean?
- Spencer was a writer who favored very limited government in economic life.
- Holmes meant that the Constitution does not adopt any economic theory, whether free market or regulation; the people's representatives may choose.
- So judges should uphold a law unless a rational person would have to say it violates fundamental principles.
Answer: Courts should not strike down economic laws because they disagree with the economic theory behind them.
Common mistake
Thinking the Court struck down every labor law of the era. It upheld many, including limits on hours in mines (Holden, 1898) and for women (Muller, 1908). A quick check: the Court asked whether the law protected health or safety; when it saw a law as simply shifting bargaining power, it struck it down.