Rufus Wheeler Peckham, the last of President GROVER CLEVELAND'S four appointees to the Supreme Court, was commissioned in 1896 following eight years of service on the New York Court of Appeals. His name is linked most often with one of the half dozen most fulsomely denounced Supreme Court decisions in American history. Speaking for a majority of five in LOCHNER V. NEW YORK (1905), Peckham invoked the SUBSTANTIVE DUE PROCESS doctrine of "liberty of contract," which he had established in an incipient form in ALLGEYER V. LOUISIANA (1897), and invalidated a statute regulating the hours worked by bake-shop employees. (See FREEDOM OF CONTRACT.) Peckham's opinion infuriated progressive reformers, evoked one of Justice OLIVER WENDELL HOLMES'S most famous dissents, and ultimately contributed a new term to the lexicon of constitutional discourse in America. More than four generations later, "Lochnerism" is habitually used by commentators to describe the horrible consequences of interventionist JUDICIAL REVIEW in defense of doctrinally abstract constitutional rights.
Holmes once remarked that the "major premise" of Peckham's jurisprudence was "God damn it." It was an apt observation. Peckham was outraged by the increasing propensity of state legislatures and the Congress to transcend "the proper functions of government," and he not only conceptualized the judicial function in essentially negative terms but also regarded the Court as an appropriate forum for battling the ominous evils of centralization and socialism. For Peckham, the Court's role in constitutional adjudication was to police the boundaries separating the rights of the individual, the powers of the states, and the authority of the general government in such a way as to keep each within its proper sphere. Otherwise, he warned while still on the New York bench, "in addition to the ordinary competition that exists throughout all industries, a new competition will be introduced, that of competition for the possession of the government."
Peckham had boundless confidence in his capacity to draw objective lines between these mutually limiting spheres. He dissented in CHAMPION V. AMES (1903) on the ground that a federal statute prohibiting interstate distribution of lottery tickets was not a regulation of commerce at all but rather an attempt by Congress to usurp the reserved power of the states to regulate public morals. And in Lochner Peckham conceded that state...