Liberty of Contract: Rediscovering a Lost Constitutional Right.

• Author: Watkins, William J., Jr.
• Position: Book review

* Liberty of Contract: Rediscovering a Lost Constitutional Right

By David N. Mayer

Washington, D.C.: Cato Institute, 2011.

Pp. 188. $21.95 cloth, $9.95 paperback.

When modern lawyers or judges mention Lochner, liberty of contract, and substantive due process in the same conversation, they are most likely accusing some tribunal of judicial activism. The offending jurists have rejected a policy choice by the legislature and instead, their critics contend, have written a competing policy preference into law.

Although true judicial activism deserves censure, David N. Mayer seeks to change the language of the debate. In his new book Liberty of Contract, he challenges the orthodox understanding that Lochner v. New York (198 U.S. 4 [1905]) was the beginning of a disreputable era of judicial activism that ultimately ended in the 1930s.

Lochner dealt with a New York statute prohibiting bakers from working more than sixty hours per week or ten hours per day. The state argued that the statute was a simple exercise of police power--the reserved power to pass general legislation to promote the public's health, safety, and welfare. The Supreme Court, however, held that the statute deprived bakers of liberty without due process of law. Asserting that bakers were not "wards of the state," the Court found "no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor, in the occupation of baker" (at 57). The Court rejected the idea that reasonable legislators might conclude that working long hours near hot ovens was unhealthy and thus should be regulated. In an oft-cited dissent, Justice Oliver Wendell Holmes accused the majority of being disciples of Herbert Spencer and of writing Spencer's laissez-faire views into the Constitution.

Mayer defends the use of the due process clauses of the Fifth and Fourteenth Amendments in a substantive rather than a procedural manner. Although the framers of the Constitution, such as Alexander Hamilton, clearly stated that "[t]he words 'due process' have a precise technical import, and are only applicable to the process and proceedings of courts of justice; they can never be referred to an act of the legislature" ("Remarks on an Act for Regulating Elections," February 16, 1787, in Papers of Alexander Hamilton, edited by Harold Syrett and Jacob Cooke [New York: Columbia University Press, 1961-79], 4:35), Mayer argues that statutes must undergo substantive...