As I pointed out earlier, Chief Justice Roberts’ dissent today ignores the last thirty years of scholarship and uses Lochner as a bogeyman to reject a due process challenge to states’ refusal to recognize same-sex marriage. Roberts’s description of Lochner is embarrassingly ahistorical.

By contrast, Texas Supreme Court Justice Don Willett’s concurring opinion today (joined by two other Justices) in Patel v. Texas Dept. of Licensing, blogged in detail by Eugene below, explicitly rejects what he calls “the Lochner bogeyman.”

In a footnote, he proceeds to provide a scholarly, accurate account of Lochner and economic liberty in historical context, making Roberts’s opinion look even worse by contrast–especially because Willett’s opinion refutes several of Roberts’s claims. Here’s the relevant material:

6 A quick word on Lochner. While the vote was 5-4, eight of nine Justices (all but Justice Holmes) agreed that the Constitution protects economic liberty. And Lochner was not the first Supreme Court case to say so. That happened eight years earlier in Allgeyer v. Louisiana, which defined “liberty” in the Fourteenth Amendment to include the freedom “to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.” 165 U.S. 578, 589 (1897). As Justice Harlan acknowledged in the principal Lochner dissent, “there is a liberty of contract which cannot be violated even under the sanction of direct legislative enactment.” 198 U.S. at 68 (Harlan, J., dissenting). Government may not “unduly interfere with the right of the citizen to enter into contracts” or to “earn his livelihood by any lawful calling, to pursue any livelihood or avocation.” Id. at 65.

Historical note: This is the first Justice Harlan, The Great Dissenter, not his grandson who served on the Court in the mid-20th century. The first Justice Harlan, a strong proponent of natural rights, famously dissented in Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Harlan, J., dissenting), overruled by Brown v. Bd. of Ed., 347 U.S. 483 (1954), and also in the Civil Rights Cases, 109 U.S. 3, 33 (1883) (Harlan, J., dissenting), that struck down federal antidiscrimination laws. Some scholars believe that Justice Harlan’s dissent in Lochner had initially garnered a five-vote majority, but someone switched his vote.

While Justice Harlan’s dissent, unlike Justice Holmes’s dissent, believed economic liberty was constitutionally enshrined, he understood that states have a valid police-power interest in advancing public welfare. Id. (“liberty of contract is subject to such regulations as the state may reasonably prescribe for the common good and the well-being of society”). A law should be struck down only if there is “no real or substantial relation between the means employed by the state and the end sought to be accomplished by its legislation.” Id. at 69. Justice Harlan would have upheld the New York maximum-hours law, but he stressed the presumption of constitutionality can be rebutted by evidence showing the restriction was arbitrary, unreasonable, or discriminatory. He simply found the government’s health-and-safety justification plausible.

Importantly, there was no disagreement—none—between the Lochner majority and Justice Harlan’s dissent over whether courts can legitimately scrutinize economic regulations. Nobody seriously disputes the states’ omnibus power to safeguard its citizens’ health and safety via economic regulation. Of course states have broad, inherent police power to enact general-welfare laws. Indeed, a few months after Lochner, the Court reaffirmed states’ “firmly established” authority “to prescribe such regulations as may be reasonable, necessary and appropriate” to advance “the general comfort, health, and general prosperity of the state.” Cal. Reduction Co. v. Sanitary Reduction Workers, 199 U.S. 306, 318 (1905). And just three years later, the Court upheld a maximum hours law for women. Muller v. Oregon, 208 U.S. 412 (1908). In fact, the Lochner-era Court upheld many more economic regulations than it overturned. Thomas Colby & Peter J. Smith, The Return of Lochner, 100 CORNELL L. REV. 527, 539–40 (2015). The disagreement in Lochner was over who bears the burden—the government to prove legitimacy, or the challenger to prove illegitimacy. Justice Harlan believed the latter: “when the validity of a statute is questioned, the burden of proof . . . is upon those who assert it to be unconstitutional.” Lochner, 198 U.S. at 68 (citations omitted) (Harlan, J., dissenting). The Court today agrees, adopting an approach some might say tracks the principal Lochner dissent more than the Lochner majority.

The core question is one of constitutional limitation. Should judges blindly accept government’s healthand-safety rationale, or instead probe more deeply to ensure the aim is not suppressing competition to benefit entrenched interests? A century and a half of pre-Lochner precedent allowed for judicial scrutiny of laws to ensure the laws actually intend to serve the public rather than a narrow faction. See generally HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993) (discussing the origins of Lochner-era jurisprudence). Lochner focused on a narrow issue: whether the maximumhours law was truly intended to serve the general welfare or “other motives,” namely to advantage the bakers’ union and unionized bakeries over small, non-union bakeries, many of which employed disfavored immigrants. Interestingly, some of the Texas commentary immediately following Lochner was quite favorable, including in the Dallas Morning News, which wrote “The right of contract is one of the most sacred rights of the freeman, and any interference with such privilege by Legislatures or courts is essentially dangerous and vicious.” In Which the Right of Contract is Upheld, DALLAS MORNING NEWS, Apr. 20, 1905, at 6.

A wealth of contemporary legal scholarship is reexamining Lochner, its history and correctness as a matter of constitutional law, and its place within broader originalist thought, specifically judicial protection of unenumerated rights such as economic liberty. See supra note 24. Long story short: Legal orthodoxy about Lochner is evolving among many leading constitutional theorists. See, e.g., Colby & Smith, supra at 527; DAVID E. BERNSTEIN, REHABILITATING LOCHNER—DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM (2011).