Escaping Lochner's Shadow: Toward a Coherent Jurisprudence of Economic Rights

Abstract

This article argues that it is time to rethink the jurisprudence of “economic rights.” For nearly twenty years, the United States Supreme Court has revisited economic rights doctrines that had lain dormant since the end of the Lochner era in the late 1930s. The Court’s renewed concern for in economic rights has come at a time when various political and jurisprudential forces are conducive to a reconsideration of the appropriate role of economic interests in a jurisprudence of constitutional rights. Public distrust of and dissatisfaction with government has run high for a number of years, and tough economic times have focused public attention on the costs of government regulation. Likewise, prominent conservative scholars have argued on behalf of economic rights at the theoretical level, and even liberal scholars have begun to recognize that the total rejection of economic rights is difficult to square with constitutional text and history or with the jurisprudential underpinnings of individual rights doctrine. Against the background of these developments, and to some degree propelled by them, Republican presidents (particularly Presidents Reagan and Bush) have sought to reshape the Court through a series of conservative appointments.

Although the rhetoric surrounding these appointments emphasized “judicial restraint” more than economic rights, some conservative justices appear to look more favorably upon economic interests than their liberal predecessors epitomized by the Warren Court. In a series of striking decisions, the reconfigured Court appeared to endorse enhanced protection of economic interests under a number of constitutional doctrines, including the Contract and Takings Clauses, separation of powers and federalism, and even the Equal Protection Clause. Despite the favorable climate, however, the Court was soon forced to retreat from the implications of these decisions. As a result, the Court has not only failed in its apparent effort to enhance the protection of economic rights, but also has left various economic rights doctrines in a state of total disarray. I believe that the Court has failed because it has been unwilling to address the constitutional position of economic rights in a straightforward and coherent manner.

Resolution of the complex problems associated with balancing constitutional protection for economic interests against the legitimate demands of government requires a solid doctrinal foundation for analyzing specific cases. In the absence of such a foundation, we are left only with ad hoc, value-laden, and at times intellectually dishonest opinions that undermine the legitimacy of judicial review. Restoring coherence to this area of the law is no easy task, however. The problems that beset economic rights doctrine cut across doctrinal lines and reflect deep-seated systemic difficulties, whose roots lie in the Lochner era and the constitutional sea change precipitated by the New Deal. Put simply, the Lochner era has been so thoroughly discredited as improper judicial activism that serious discussion of the appropriate role of economic rights in our constitutional jurisprudence is virtually precluded. Reaction to Lochner distorted constitutional doctrine during the heyday of liberal constitutional jurisprudence, and the resulting doctrinal difficulties have been exacerbated by the political and legal context of recent appointments to the Supreme Court. The pattern of reinvigoration and retreat in economic rights decisions is the product of the tension between two strands of conservative theory: deregulation and judicial restraint. This tension has forced the Court into a misguided search for an “originalist escape” - i.e., an economic rights doctrine whose textual or historical foundations reconcile judicial intervention with principles of judicial restraint.

The search for an originalist escape has distorted the Court’s recent efforts to develop a jurisprudence of economic rights by preventing the Court from integrating economic rights into a comprehensive jurisprudence of individual rights, compelling it instead to maintain an unwarranted dichotomy between economic and other individual rights. The search for an originalist escape has also made it impossible for the Court to identify a constitutional baseline against which to measure economic rights, resulting in three inconsistent and unsuitable approaches to the baseline problem. The problems plaguing the Court in this area can and should be resolved by emerging from Lochner’s shadow and integrating economic interests into a coherent jurisprudence of constitutional rights. A modest, yet significant, reinvigoration of economic rights can and should be accomplished by developing the fundamental rights and political-process reasoning that underlies the liberal jurisprudence of the Due Process and Equal Protection Clauses, which can be used to fashion a broader jurisprudence that encompasses both economic and other constitutionally protected interests. On the other hand, the Contract and Takings Clauses should be confined to their historical meanings because they do not present suitable foundations for a broad economic rights doctrine. Such a jurisprudence would increase protection for economic rights but need not portend a return to the extremes of the Lochner era.