Lochner Anniversary

According to Robert Bork, the Supreme Court's opinion in Lochner v. New York is one "whose name lives in the law as the symbol, indeed the quintessence, of judicial usurpation of power." (From Bork's The Tempting of America...available here for the low price of $10.88.)

Sunday was the 100th anniversary of that decision, in which the Court used "substantive due process" to strike down a New York state law limiting the work hours of bakery employees. (Hat tip: Howard Bashman at How Appealing.)

What is substantive due process? Here's Justice Antonin Scalia:

What substantive due process is is quite simple. The Constitution has a due process clause which says that no person shall be deprived of life, liberty or property without due process of law.

Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed. All three can be taken away. You can be fined. You can be incarcerated. You can even be executed. But not without due process of law. It's a procedural guarantee.

But the court said -- and this goes way back, in the 1920s at least. In fact, the first case to do it was Dred Scott. But it became more popular in the 1920s.

The court said there are some liberties that are so important that no process will suffice to take them away; hence, substantive due process.

Now, what liberties are they? The court will tell you. Be patient.

When the doctrine of substantive due process was initially announced, it was limited in this way. The court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people...

Within the last 20 years, we have found to be covered by due process the right to abortion -- which was so little rooted in the traditions of the American people that it was criminal for 200 years -- the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years.

So it is literally true -- and I don't think this is an exaggeration -- that the court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people.

It is up to the court to say what is covered by substantive due process.