Revisiting Lochner in the Light of Roe
While an over two-hundred-year-old institution, the Supreme Court and its understanding of the Constitution remains fluid, reflecting societal preferences and ideological epochs. In the last century and a half, the Supreme Court has notably grappled with the balance of state power and judicial intervention, leading to the development of substantive due process. First appearing in Lochner v. New York (1905), substantive due process is generally defined as a judicial framework derived from the due process and equal protections clauses of the Fifth and Fourteenth Amendments, respectively. Substantive due process was reaffirmed in a series of controlling cases following Lochner, gaining popularity for its application in cases involving equal protections for unenumerated substantive rights—the most famous being Roe v. Wade (1973) and reproductive rights.
In 2022, the Supreme Court shocked the nation and world at large in Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), both of which solidified the constitutional protection for abortion and contraceptive protections through substantive due process. While Roe was culturally ossified in its legitimacy, substantive due process has been considered by many to be problematic since Lochner, and the ruling in Dobbs can be seen as the fulfillment of deep rooted skepticism.
In the wake of Dobbs, the nation is not only redefining, and in some cases restricting, abortion and contraceptive access, but more broadly calling into question whether this centuries old judicial framework is valid and adequate reasoning in equal protection cases. The basis on adversaries critique is not unfounded, and can be traced back to the origins of substantive due process in Locher, however, to reconsider cases relying on substantive due process, socially fundamental, yet unenumerated, rights are at great risk. Rather than attempt to reaffirm the validity of substantive due process, equal protection cases should move beyond, and be argued within the text of the Constitution, in order to protect these precedents from less progressive iterations of the Supreme Court.
1905: Lochner v. New York and The Creation of Substantive Due Process
Amidst national post-Civil War industrial growth, in the case of Lochner v. New York (1905), a bakery owner named Joseph Lochner sued the state of New York for his conviction under the Bakeshop Act, which provided limitations on the number of hours that bakers could work. Lochner appealed his second conviction under the Bakeshop Act, arguing that liberty of contract was protected under the Fourteenth Amendment and thus New York state could not infringe upon workers and employers agreements. In Justice Peckham’s majority opinion for the court, he agreed with Lochner, plainly asserting:
“The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment…except as controlled by the State in the legitimate exercise of its police power…There is no reasonable ground, on the score of health, for interfering with the liberty of the person or the right of free contract, by determining the hours of labor, in the occupation of a baker.” [1].
Peckham synthesizes a variety of constitutional clauses and amendments, most notably the Fourteenth Amendment, as aforementioned, and the Tenth Amendment to reach this understanding. The Fourteenth Amendment (1868) arose to address universal citizenship and was largely a congressional redress to the denial of black citizenship in Dred Scott v. Sandford (1857). In addition to cementing deracialized citizenship, it also provided for the protections of citizens’ rights, reading, in part, as follows: “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; nor deny to any person within its jurisdiction the equal protection of the laws” [2]. The emphasis on state deprivation limits the Tenth Amendment, which states “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” [3]. Substantive due process is found in Peckham’s assertion of a “general right to make a contract,” which is unenumerated in the Constitution, but found to lie within the general Fourteenth Amendment protection. Since Peckham finds a “general right to make a contract,” which is unenumerated in the Constitution, but implied within the general Fourteenth Amendment protections, and there is not a legitimate state interest in depriving this right, the Bakeshop Act must be unconstitutional under the substantive due process framework.
This is largely where skepticism arises—due process is a procedural matter and immunities not listed in the Constitution are reserved to states or the people, respectively—as the Court is essentially creating a secondary meaning to “due process,” one that is substantive. Many constitutionalists, particularly originalists and textualists, find the lack of constitutional grounding worrisome. Beyond Lochner, the Court now has the power to not only review state laws and their constitutionality as under judicial review, but has a new form of power to determine whether the law stands on “reasonable grounds” as a "legitimate exercise of police power,” a revival of heightened scrutiny from McCulloch v. Maryland (1819), and an assertion of judicial activism. In McCulloch, the power for the federal government to create a national bank was contested, primarily considering the extent of its powers as defined under Article I, Section 8 of the Constitution. In the majority opinion, Justice Marshall created what is called “means-and-ends” analysis in which the means of achievement are constitutional so long as the end is constitutional [4]. Lochner incorporated this, holding that the Bakeshop Act was unconstitutional not because of the act’s means, but because its ends were deemed illegitimate [5]. Lochner essentially expands judicial review, which for many constitutionalists, compounded with a lack of constitutional grounding, is dangerous to the separation of powers between branches of the federal government and state and federal governments more broadly.
Regardless of the constitutional backing, those adversarial to substantive due process find issue with how Lochner dealt with scientific and sociological evidence. In Lochner, while Peckham and the majority assert baking is not a dangerous occupation, in Justice Harlan’s dissent, he relies on Ludwig Hirt, a German physician, and his treatise on “Diseases of the Workers” which contrarily says that the long baking hours are associated with lung problems and sleep deprivation, producing long term health effects [7]. Their two different scientific findings point to a central issue of this method: the Supreme Court is vested with the central responsibility to interpret the Constitution, not extraneous evidence, indicating a broader issue of the personal bias that influences the Court’s interpretation of legitimacy and state interest. In this way, the Supreme Court is attempting to play policy-maker which can produce negative consequences depending on the composition of the Court—the central issue underlying Roe, 70 years later.
Many argue that Lochner was struck down in West Coast Hotel Co. v. Parrish (1937), while substantive due process was instead reaffirmed. In West Coast Hotel Co., the Supreme Court upheld a minimum wage for women as constitutional, marking the end of the Lochner Era and the Court’s inclination to invalidate business regulation. While the Lochner Era was dismantled in West Coast Hotel Co., substantive due process was not—and was in fact the legal argument articulated for upholding the minimum wage statute. Chief Justice Hughes’ majority opinion stated that it’s “decided that the statute is a reasonable exercise of the police power of the State…the state court has invoked principles long established by this Court in the application of the Fourteenth Amendment” [6]. West Coast Hotel Co. upheld its central claim that the Court has the right to determine if the deprivation of an unenumerated right is a legitimate interest of the state—not at all addressing the core concerns of Lochner.
After Lochner and West Coast Hotel Co., the Court swiftly moved away from the application of substantive due process for economic issues. One of the first inventions of noneconomic substantive due process to follow was the right to privacy—a birth for other equal protections rights, namely reproductive care in Roe v. Wade. The discovery of the right to privacy through substantive due process cases for equal protection cases would become perhaps the most notable development of the Supreme Court in the twentieth century. In 2022, Dobbs was predicated on attacking the weaknesses of substantive due process that originated in Lochner—the Supreme Court as a policy maker is a concern for at best judicial overreach and at worst a total dismantling of the separation of powers.
1890-1965: Substantive Due Process and the Right to Privacy
While the central issues that would arise in Roe, and be rejected in Dobbs, arose due to substantive due process, the Court had been investigating a right to privacy long before, and in fact before Lochner. In 1890, Samuel Warren and Louis Brandeis published “The Right to Privacy" in the Harvard Law Review and found that “a right to be left alone” was central to common law protections and condemned both intrusions by individuals and governments on this privacy right [8]. In 1928, when Brandeis became a Supreme Court Justice, he asserted this right in his dissent in Olmstead v. United States, concerning the admissibility of non-consenting, secret recordings in criminal trials, in which Brandeis asserts that no matter the means, any government intrusion on the privacy of an individual is unconstitutional by the Fourth Amendment against unreasonable searches and seizures. Brandeis’ vision of a right to privacy would be largely inapplicable through the economic substantive due process era, but would be revived in Griswold and Roe subsequently.
As aforementioned, Griswold v. Connecticut (1965) was a controlling case on which Roe relied. In 1879, Connecticut had passed a law illegalizing any form of contraception, including drugs, medical devices, and other instruments [9]. Estelle Griswold, the head of Planned Parenthood, and a colleague from the Yale School of Medicine sought to bring this law to the Supreme Court and thus created a test case in which they opened a Connecticut contraception clinic to be arrested. As planned, their convictions were upheld through state courts, making its way to the Supreme Court where the question lied as to whether a marital right to privacy could be found in the Constitution, and whether it would protect against state restrictions on contraception and contraceptive counseling. Justice Douglas delivers the majority opinion for the Court, holding that “that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” and thus a right to marital privacy existed in the penumbra, particularly in those of the First, Third, Fourth, and Ninth Amendments [10]. Griswold uses a substantive due process investigation to find an unenumerated right, but does not consider whether there would be a state interest to infringe on marital privacy. However, Griswold secured the right to privacy that scholars had been considering for centuries, the basis for which Roe would be argued.
**1970: Roe v. Wade and Lochner Revisited **
In 1970, Jane Roe (a fictitious name for the plaintiff) sued the Dallas County district attorney, Henry Wade, to challenge a Texas law making abortions illegal except in the case of a medical order to save a woman’s life. Roe’s argument was that the state’s law violated her constitutional right to personal privacy, found in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments [11]. The right to privacy is obviously substantive and unenumerated, and it became acknowledged through a substantive due process in Griswold v. Connecticut (1965). Roe was not an aberration, but rather a product of the 1960s and 1970s Supreme Courts, the Warren and Burger Courts respectively, which sought to extend substantive due process to read a right to privacy in the Constitution for various applications. This was an expansion of Lochner’s version of substantive rights; in Lochner, the right to contract was found within the Fourteenth Amendment, whereas in Roe a right to privacy was found in the Fourteenth Amendment, from which a right to reproductive freedom can be derived.
Roe suffered the same issues as Lochner. While there was not so much an issue of scientific interpretation, there was a central critique in the way that Roe allowed the Court to play as a lawmaker. In the Lochner Era, the Supreme Court invalidated state attempts to regulate the economy to address the devastating socioeconomic effects post-industrialization in favor of a laissez-faire capitalism [12]. Even after the end of the Lochner era, the survival of substantive due process continued to allow the Supreme Court to make judgements that otherwise were reserved to the people and state legislatures acting as their representatives. Even in West Coast Hotel Co., lauded for dismissing Lochner Era capitalism, many critique it for allowing the liberty of contract to be subsumed by a state interest in women’s health, implying women’s freedom is less significant than their contribution to the household. Sixty-five years later in Roe, while Roe relied on a right to privacy somewhat cemented in precedent, abortion itself is a right being derived from another unenumerated right. This bi-layered substantive due process application to many critics seems to be a troubling overreach to zap the power of state legislatures and expand judiciary power beyond the scope imagined in the Constitution.
2022: Dobbs v. Jackson Women’s Health Organization and The Deeply Rooted Test
Roughly fifty years later, the Roberts Court would seize its opportunity to reject this proposition, on the core principle of the deeply rooted test. The deeply rooted test has its origins in Washington v. Glucksberg (1997) which held that a Washington ban on allowing medical physicians to hold state-assisted suicide was not unconstitutional under the Fourteenth Amendment, not depriving ill people of the right to liberty. The Court said that state-assisted suicide was not a deeply rooted, fundmental right and that the state of Washington had a legitimate interest in preventing state-assisted suicide through its ban, essentially applying substantive due process under with a limited scope. “The Glucksberg Test,” therefore, states that to be considered an unenumerated due process liberty right, there must be evidence the right is “deeply rooted in the Nation’s history and traditions” and “implicit to the concept of ordered liberty” [13].
Unsurprisingly, this strict test has been embraced by the Roberts Court and is the basis for the overturn of Roe in Dobbs as it finally addresses the core issues found in Lochner. Justice Alito authored the majority opinion which relied on this test, stating that the Constitution does not mention abortion and it is not found to be a deeply rooted right; additionally, the Court found that the five factors determining whether to overturn precedent, as established in 2018 by Janus v. American Federation of State, County, and Municipal Employees [14], are not satisfied. As a result, Roe and Casey must be overturned. In the Dobbs opinion, Justice Alito addressed the substantive due process tension directly, stating that:
“In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution…‘Substantive due process has at times been a treacherous field for this Court,’…and it has sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives” [15].
The test provides a more precise lens to determine whether an unenumerated right may validly be underlying in the Constitution, and thus within the Supreme Court’s purview. To critics, the central issue with Lochner’s extension of the Court’s power is mitigated by this narrowed lens and the Roberts Court finally fulfilled an over one-hundred year mission to undermine, if not nullify, substantive due process. Thus, the Roberts Court has rejected substantive due process, at least in its original broad scope imagined under Lochner, in turn of a test relying on their interpretation of what is “deeply rooted” in the Constitution. While many were shocked by the Court’s ruling in Dobbs, perhaps relying on statements made in Senate Confirmations Hearings of Roe being “settled precedent” or implying it was untouchable, a reading of legal history beginning at Lochner illuminates how the Roberts Court came to Dobbs predictably [16].
**Today: Where We Are and Where We Could Go **
The overturn of Roe fundamentally altered the Court’s relationship with substantive due process from one that had always been fraught to one that is now diminished. The Roberts Court still relies on a version of substantive due process, however now through a narrowed lens of the deeply rooted test. Roe is part of a series of equal protections cases—Griswold [17], Lawrence v. Texas [18], protecting private intimacy, and Obergefell v. Hodges [19], protecting gay marriage, to name a few—that could be overturned with the Roberts Court’s new vision. This is not an ungrounded prophecy, but in the words of Justice Thomas, who concurred in Dobbs, “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’...we have a duty to ‘correct the error’ established in those precedents” [20].
The stance and agenda of the Roberts Court is based on the issues with substantive due process itself, though they are not making attempts to reimagine ways to protect these rights in legal argument. Proponents for the longevity and protections of these rights which are sacred to the life and liberty of millions of Americans, instead of finding ways to protect substantive due process, should be seeking new legal arguments to solidify these rights and protect against any intrusions from politicized interpretations of the Court. A new wave of equal protection case arguments are budding in the wake of Dobbs, perhaps signaling a new era of the Court divorced from this judicial invention.
Bibliography
[1] Lochner v. New York, 198 U.S. 45 (1905).
[2] U.S. Const. Amend. XIV, § 1.
[3] U.S. Const. Amend. X.
[4] McCulloch v. Maryland, 17 U.S. 316 (1819).
[5] 198 U.S. 45 (1905).
[6] West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
[7] Muller v. Oregon, 208 U.S. 412 (1908).
[8] Louis Brandeis et Samuel Warren. “The Right to Privacy,” Harvard Law Review 4, no. 5 (1890).
[9] Griswold v. Connecticut, 381 U.S. 479 (1965).
[10] 381 U.S. 479 (1965).
[11]* Roe v. Wade*, 410 U.S. 113 (1973).
[12] Upton Sinclair, The Jungle (New York: Doubleday, Page and Company, 1906).
[13] Washington v. Glucksberg, 521 U.S. 702 (1997).
[14] Janus v. American Federation of State, County, and Municipal Employees, 585 U.S. (2018).
[15] Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022).
[16] D'Angelo Gore, Robert Farley and Lori Robertson, “What Gorsuch, Kavanaugh and Barrett Said About Roe at Confirmation Hearings,” FactCheck.org, The Annenberg Public Policy Center, 24 June, 2022, https://www.factcheck.org/2022/05/what-gorsuch-kavanaugh-and-barrett-said-about-roe-at-confirmation-hearings/.
[17] 381 U.S. 479 (1965).
[18] Lawrence v. Texas, 539 U.S. 558 (2003).
[19] Obergefell v. Hodges, 576 U.S. 644 (2015).
[20] 597 U.S. (2022).