The Lochner Constituency

At TNR, Brian Beutler has penned an outstanding analysis of the rise of neo-Lochner-ism in conservative legal circles, and its near-eclipse of more transitional conservative deference to the political branches of government. In last year’s King v. Burwell decision, the Lochnerian viewpoint won 3-2 among the Supreme Court’s conservative bloc, but wasn’t enough thanks to the four Democratic-appointed Justices. In the long run, however, the belief that the Constitution permanently bans the kind of regulation of the private sector carried out by the Affordable Care Act–or that matter, the New Deal and Great Society programs–has a lot of momentum.

When I was in law school in the mid-to-late 1970s, Lochner-era jurisprudence was entirely discredited. You mainly heard about it in terms of controversies over the rediscovery of “substantive due process”–the idea of inherent liberty interests embedded in the 5th and 14th amendments’ due process clauses–by liberals in Roe v. Wade. Since Roe was the eternal bete noir of conservative legal thinkers for decades after it was decided, conservatives by and large joined liberals in eschewing Lochner and attacking Roe on grounds that it represented an unauthorized exercise in “judicial activism.” Thus, the big if regularly avoided constitutional showdown was over Roe, which has survived via amazing luck (or some conservatives would say, via a RINO conspiracy) despite a series of opportunities for Republican presidents to create an anti-Roe majority.

What Beutler wants us to understand is there are worse things in the wings than an overturning of Roe (though it’s not a choice of poisons, since no justice will be nominated to the Court by a future Republican president who is not a lead-pipe cinch to overturn Roe, no matter what else she or he believes). The revival of neo-Lochner jurisprudence on the right, which Brian attributes significantly to the influence of Georgetown professor Randy Barnett, chief architect of the King v. Burwell challenge, is making enormous gains in conservative circles, including those of certain presidential candidates (most explicitly Rand Paul).

I’d only add one thing to Beutler’s piece: he consistently refers to the neo-Lochner advocates as “libertarians.” That may be true for many of them, but it’s important to understand that Lochnerism is more generally central to creed known in the last few years as “constitutional conservatism,” which encompasses not just quasi-libertarians like Paul but also an awful lot of Christian Right people. And indeed, a lot of Con Cons believe that the Constitution (as informed by the Declaration of Independence) ensrhined private property rights beyond the reach of any president or Congress as a matter of natural and divine rights–along, BTW with a “right to life” that means Roe is an abomination. This last point is worth emphasizing: there’s more than one way to skin the abortion rights cat, and I suspect a lot of the legal thinkers Beutler’s writing about would not just overturn Roe but support a sort of counter-Roe that bans abortion as a matter of constitutional law.

In any event, there’s a broad constituency on the Right for neo-Lochnerism, and yes, it’s reasonable to expect it to become loud and proud the next time a Republican president has an opening on the Supreme Court to fill.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.