Lochner v. New York

1. People criticize Lochner. But here's a passage from it. Do you disagree with it? "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?"

2. Or maybe you disagree with the next passage. The question is, if Lochner went off track, where exactly did it do so. "This is not a question of substituting the judgment of the *57 court for that of the legislature. If the act be within the power of the state it is valid, although the judgment of the court might be totally opposed to the enactment of such a law. " Is deciding on the bounds of permissible legislative power different than deciding that a particular law should be enacted? Under what circumstances are they the same? Different?

3. Justice Peckham writes: "There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty. It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities?" Think hard about this sentence. Might the answer not be "yes, that's called democracy"?

4. Justice Peckham writes, "This interference on the part of the legislatures of the several states with the ordinary trades and occupations of the people seems to be on the increase." Is this appropriate rhetoric for a Supreme Court justice that, one might think, is deciding cases before him, rather than opining on political trends? But is this any different than what other justices do in resolving cases: they think about things happening in the world around them and try to write legal rules that will sculpt those outcomes according to their values (except Gorsuch)? Isn't Peckham just being honest here.