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How many errors can William Greider make in two sentences describing Lochner v. New York?

Here is Greider, in a blog post for The Nation, describing Lochner v. New York:  “That case held that property rights prevail over people and the common good. For more than thirty years, the conservative Justices used that twisted precedent to invalidate more than 200 state and federal laws on major social and economic concerns like child labor, the minimum wage, bank regulation and union organizing.”

Error 1: “Property rights”: Lochner was not a case about property rights, it was about liberty, specifically liberty of contract.

Error 2: “The Common Good”: The Court specifically stated that the right to liberty of contract is subordinate to the states’ police power to protect “the safety, health, morals, and general welfare of the public.” The Court concluded, however, that the public’s welfare (“the common good”) was not advanced by the legislation at issue.

Error 3: “More than 200″: The Court cited Lochner a grand total of eleven times before the liberty-of-contract doctrine met its demise in 1937, including in Meyer v. Nebraska, an opinion the vast majority of Progressives approve of. Application of the liberty of contract doctrine led to the invalidation of somewhat more laws than that, but nowhere near two hundred.

Errors 4 and 5: “child labor… bank regulation”: The Supreme Court used neither Lochner specifically  nor liberty of contract more generally to invalidate child labor laws (indeed, the one child labor law to attract a liberty of contract challenge was upheld 9-0), nor, to my knowledge, did the Court invalidate any banking regulations as violations of liberty of contract.  A simple Google search would have brought up this post debunking the child labor point.

Unfortunately, lots of people seem to pick up erroneous constitutional history from posts like Greider’s.  Maybe someone should send Greider–and his editor at The Nation-a good book on Lochner….

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA. His latest book, Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law, will be published in November.



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Dale Carpenter · June 6, 2014

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