I:\28962 Indiana Law Rev 47-2\47masthead.wpd


LOCHNER, LIBERTY OF CONTRACT, AND PATERNALISM:
REVISING THE REVISIONISTS?

REVIEW ESSAY:
DAVID N. MAYER, LIBERTY OF CONTRACT:

REDISCOVERING A LOST CONSTITUTIONAL RIGHT1

HARRY G. HUTCHISON*

INTRODUCTION

“Given the principle of freedom, as active freedom of association, the
notion of scientific control of society is a palpable contradiction. . . .”2

More than “[o]ne hundred years after the Supreme Court invalidated a law
regulating bakers’ working hours as a violation of liberty of contract in Lochner
v. New York,3 the case and its legacy are at the forefront” of constitutional
debates.4  Liberals and conservatives continue to gain tenure by condemning
controversial decisions that fail to reify their preferences as nothing more than a
form of Lochnerian analysis.5  The demonization of Lochner and its
corresponding substantive due process6 doctrine is built on the foundational claim

1. DAVID N. MAYER, LIBERTY OF CONTRACT:  REDISCOVERING A LOST CONSTITUTIONAL
RIGHT (2011).

* Professor of Law, George Mason University School of Law.  For helpful comments on
earlier drafts, I am grateful to Elizabeth McKay, David Bernstein, Nathan Drake, and Logan
Sawyer.  The theme of this Article benefited from Nelson Lund’s comments as well as a
conversation with the members of the Joseph and Linda Cadariu Trust.  © Copyright Harry G.
Hutchison.

2. PETER J. BOETTKE, LIVING ECONOMICS:  YESTERDAY, TODAY, AND TOMORROW 42 (2012)
(quoting Frank H. Knight, The Role of Principles in Economics and Politics, SELECTED ESSAYS OF
FRANK H. KNIGHT 361-91 (Ross Emmett ed., vol. 2, 1999)).

3. 198 U.S. 45 (1905).
4. David E. Bernstein, Lochner v. New York:  A Centennial Retrospective, 83 WASH. U.

L.Q., 1469, 1469 (2005) [hereinafter Bernstein, Lochner:  A Centennial Retrospective].  See also
Harry G. Hutchison, Achieving Our Future in the Age of Obama?:  Lochner, Progressive
Constitutionalism, and African-American Progress, 16 J. GENDER RACE & JUST. 483, 485 (2013)
[hereinafter Hutchison, Achieving Our Future in the Age of Obama].

5. See, e.g., Robert P. George, Judicial Usurpation and the Constitution:  Historical and
Contemporary Issues, 871 HERITAGE FOUND. LECTURES, Apr. 11, 2005, at 5 (characterizing the
Court’s decision in Lawrence v. Texas, 539 U. S. 558 (2003) as a form of ‘Lochnerizing’); Cass
R. Sunstein, What if Bush Wins?  Hoover’s Court Rides Again, WASH. MONTHLY, Sept. 2004, at
27, 35-36 (warning that a nascent conservative movement that aims to revive Lochner is on the
horizon).

6. For a definition of substantive due process, see, e.g., Timothy Sandefur, In Defense of
Substantive Due Process, or the Promise of Lawful Rule, 35 HARV. J.L. & PUB. POL’Y 283, 314
(2012) (defining substantive due process as follows: “In short, a lawful act is one the ruler is
authorized to adopt or enforce.  One must therefore inquire into the lawmaker’s authority and the



422 INDIANA LAW REVIEW [Vol. 47:421

that the New York law at issue protects vulnerable people.7  Demonization is not
new.8

According to the prevailing myth propagated by Progressives and New
Dealers—and widely accepted today—Supreme Court Justices of the Lochner
period, influenced by pernicious Social Darwinist ideology, sought to impose
their laissez-faire views on the American polity through a tendentious
interpretation of the Due Process Clause of the Fourteenth Amendment.9
Condemning what they perceived as an egregious instance of “judicial activism,”
the doyens of the Progressive Movement asserted that judges, driven by their own
policy preferences, made “new law rather than interpreting and applying existing
rules of law.”10

In reality, a skeptical examination of the period from Plessy v. Ferguson to
New Deal Labor Law shows that Social Darwinism originated within the domain
of progressive thought itself.11  Consistent with anti-creedal trends emerging
during the latter half of the nineteenth century and surfacing during the twentieth
century, “Progress,” on this view, was “not an accident, but a necessity. Surely
must evil and immorality disappear; surely must men become perfect.”12 Hence,
the cultural conversion of a society that featured natural rights13 into one that
fostered a new social and moral imperative grounded in science appeared both
unstoppable and desirable.14  Consistent with legal theories emanating from the
early part of the nineteenth century and later amplified by legal positivists such
as Hans Kelsen, this “new” state would not be susceptible to any limitation not
imposed by itself, and, hence, any restriction upon it could not be derived validly
from an external source since this would imply a diminution of its authority.15 

limits on that authority, both procedural and substantive, to determine whether an act satisfies the
due process of law guarantee.  When a government act exceeds the government’s authority—due
to a procedural shortcoming, a substantive violation, a logical contradiction, or any other flaw—that
act cannot qualify as law, and thus any attempt to enforce it constitutes arbitrary or lawless
action.”).

7. See, e.g., Louise Weinberg, Holmes’ Failure, 96 MICH. L. REV. 691, 714 (1997)
[hereinafter Weinberg, Holmes’ Failure].

8. Bernstein, Lochner: A Centennial Retrospective, supra note 4, at 1470.
9. Id. at 1470-71.

10. MAYER, supra note 1, at 2.
11. See, e.g., Harry G. Hutchison, Waging War on the “Unfit”?  From Plessy v. Ferguson

to New Deal Labor Law, 7 STAN. J. C.R. & C.L. 1, 5 (2011) [hereinafter Hutchison, Waging War
on the “Unfit”].

12. PHILLIP RIEFF, THE TRIUMPH OF THE THERAPEUTIC: USES OF FAITH AFTER FREUD, 5 (40th
Anniversary ed. 2006) (quoting Herbert Spencer in HERBERT SPENCER, SOCIAL STATICS 32
(London, 1892)).

13. See, e.g., Randy E. Barnett, Does the Constitution Protect Economic Liberty?, 35 HARV.
J.L. & PUB. POL’Y 5, 6-7 (2012) (claiming that the original public meaning of the Constitution
suggests that people have certain natural rights).

14. RIEFF, supra note 12, at 5-6.
15. Bruce P. Frohnen, Is Constitutionalism Liberal?, 33 CAMPBELL L. REV. 529, 539 (2011)



2014] REVISING THE REVISIONISTS? 423

Signifying their commitment to quasi-science and its consequent mandate
favoring the elimination of all forms of imperfection in society, Progressives of
various stripes16 were at the forefront of a reform movement infected with
biological determinism that gave rise to a variety of abhorrent developments, as
richly illustrated by the life and times of Carrie Buck.17  On one hand, progressive
believers in Social Darwinism foresaw the future as inevitably governed by the
laws of evolution and heredity.18  “On the other, they worried whether the
inevitable outcome of history that they foresaw could come about without their
intervention.”19  Primed to facilitate this preordained outcome, members of the
progressive vanguard denigrated the economic and social liberties of women,
blacks, and immigrants as groups that were seen as unworthy of uplift.20  Rightly
appreciated, the demonization of Lochner has often supplied a convenient trope
that has sheltered progressive paternalism and its consequences from critical
review.

Bruiting below the surface of constitutional debates is the noticeable fact that
we live in a “late modern, post-secular world.”21 Late modern post-secularity
finds expression through an intensifying and unstable pluralism that signifies a
dazed, confounding, and confused cultural milieu.22  “This pluralism is
particularly challenging and unsettling because it not only raises the specter of
difference, but deep ‘moral and metaphysical differences’ that implicate how
communities understand the nature of humanity and indeed the cosmos.”23  This
claim signifies that radical differences within the community of scholars about the

(suggesting such currents are supported by Supreme Court decision-making during the early
nineteenth century).

16. It is worth pointing out though that there was a significant difference between being
someone whose political views were in line with at least the more conservative aspects of the
Progressive movement, which after all dominated American politics in the early twentieth century,
and being someone who wholeheartedly adopted the Progressive vision of constitutional law, which
involved replacing the natural rights tradition of inherent limits on government power with the
“Living Constitution.”  I am indebted to David Bernstein for this clarification.  See Email from
David E. Bernstein, George Mason Univ. Found. Professor, to Harry G. Hutchinson, October 29,
2012 (on file with the author).

17. Hutchison, Waging War on the “Unfit,” supra note 11, at 3-6 (describing the state-
sponsored effort to remove Carrie Buck’s reproductive capacity as an appropriate way to eliminate
“unfit” people).

18. Id. at 5.
19. Id. at 5-6.
20. David E. Bernstein & Thomas C. Leonard, Excluding Unfit Workers:  Social Control

Versus Social Justice in the Age of Economic Reform, 72 LAW & CONTEMP. PROBS. 177, 177-80
(2009).

21. James Davison Hunter, Law, Religion, and the Common Good, 39 PEPP. L. REV. 1065,
1069 (2013).

22. Id. at 1068-69; see also Zachary R. Calo, Faithful Presence and Theological
Jurisprudence:  A Response to James Davison Hunter, 39 PEPP. L. REV. 1083, 1083-84 (2013).

23. Calo, supra note 22, at 1084.



424 INDIANA LAW REVIEW [Vol. 47:421

meaning of Lochner and its progeny may be difficult to resolve, which gives rise
to a quandary that “tests ‘the limits of tolerable diversity’” of opinion.24 
Correspondingly, attaining a consensus about the meaning of liberty of contract
as an aspect of basic liberty and as a fundamental right derived from the Due
Process Clauses of the Fifth and Fourteenth Amendments25 that is restrained by
a valid exercise of the police power may be impossible.26  Indeed, even if one
accepts the proposition that “the due process of law guarantee is an effort—one
with deep roots in the history of western civilization—to reduce the power of the
state to a comprehensible, rational, and principled order, and to ensure that
citizens are not deprived of life, liberty, or property except for good reason[,]” it
is probable, nonetheless, that this claim gives rise to all sorts of normative
questions, not least being the contested possibility that courts and legal scholars
are willing to take seriously the idea that there are real answers to such normative
questions.27  These various contentions reverberate within the legal academy,
irrespective of whether or not the Lochner decision can be defended as a valid
exercise of judicial discretion28 that safeguarded a constitutional rule securing the
rights of individuals to freely enter into contracts against attempts by government
to arbitrarily exercise its power.  The domain of government has ballooned as
human selfishness and solipsism have waxed, and self-control, community, and
self-reliance have waned.29  This gives rise to a nation of narcissists who are
unable to control their own impulses and desires, either individually or
collectively.30  “A nation of narcissists turns out to be a nation of gamblers and
speculators . . . and Ponzi schemers, in which household debt rises alongside
public debt, and bankers and pensioners and automakers and unions all compete
to empty the public trough.”31 This formulation yields a nation wherein limitless
appetites spur unlimited government.

Given the resilience of the opposition to liberty of contract, a doctrine that is
epitomized by Lochner, and in light of a renaissance in revisionist scholarship
that defends the Lochner Court, a development that coincides with a sharp rise in
America’s public debt, it is an opportune time to review David Mayer’s
contribution to the literature surrounding Lochner.  In his new book, Liberty of
Contract:  Rediscovering A Lost Constitutional Right, Mayer maintains that the
Court during the Lochner era was protecting liberty of contract as a fundamental
right rather than enacting laissez-faire constitutionalism, as Justice Holmes and

24. See id. (quoting Hunter, supra note 21, at 1077).
25. MAYER, supra note 1, at 1.
26. See Calo, supra note 22, at 1087.
27. Sandefur, supra note 6, at 285.
28. See Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of

Powers, 121 YALE L.J. 1672, 1793-94 (2012) (showing that neither the Lochner majority nor the
dissent “squares with anything resembling the original understanding of due process”).

29. ROSS DOUTHAT, BAD RELIGION:  HOW WE BECAME A NATION OF HERETICS 235 (2012). 
30. Id.
31. Id.



2014] REVISING THE REVISIONISTS? 425

his intellectual heirs supposed.32  Coherent with David Bernstein’s mettlesome
scholarship, Mayer unravels the myth of “laissez-faire constitutionalism,” a fable
that has often contaminated critiques of Lochner era Supreme Court decisions that
nullified various state and federal laws that abridged the liberty of contract.33  The
Court’s respect for the jurisprudential doctrine of liberty of contract made
possible the invalidation of laws that abridged individuals’ “freedom to bargain
over the terms of their own contracts—maximum-hours laws, minimum wage
laws, business licensing laws, housing-segregation laws, and compulsory
education laws.”34  At the same time, this form of jurisprudence could not be
isolated from its cultural milieu, and, hence, it often proved thoroughly
ineffective when it came to protecting women from state-ordered sterilization35
or African Americans from New Deal innovation that expunged them from the
workforce.36  On this score, Mayer neglects to adequately explain the Court’s
failure to consistently apply liberty of contract jurisprudence. Regardless of how
defensible liberty of contract may be, and no matter how under-theorized the
opposition to substantive due process may seem, it is possible that decisions seen
as part of the freedom of contract canon were actually not inconsistent, on close
inspection, with more moderate forms of progressive thought that, nonetheless,
cultivated paternalism.37  Consequently, neither the demonization of Lochner nor
its path-breaking defense by revisionist scholars prevents this decision and its
offspring from being seen as part of a global progressive consensus that led to the
expansion of the modern regulatory state at both the state and federal levels.38

Part I of this Article sets forth Mayer’s elucidation of the liberty of contract
doctrine and his effort to distinguish Lochner from laissez-faire constitutionalism. 
This section also considers the efficacy of liberty of contract dogma in the context
of progressive reform efforts.  Part II examines the meaning and durability of this
disputed doctrine, which protected individualism against its mortal enemy:
majoritarian paternalism.39  Building upon Professor Sawyer’s exposition of
Hammer v. Dagenhart and the Court’s application of the harmless items doctrine,

32. MAYER, supra note 1, at 115.
33. Id. at 1.
34. Id.
35. See, e.g., Buck v. Bell, 274 U. S. 200, 207 (1927) (agreeing that the state had the right

to eviscerate the reproductive capacity of certain women that the state arbitrarily classified as
defective).

36. See generally Hutchison, Waging War on the “Unfit,” supra note 11, at 1-46.
37. See, e.g., Logan E. Sawyer III, Creating Hammer v. Dagenhart, WM. & MARY BILL RTS.

J. 67, 110-17 (2012). 
38. See id. at 93-123 (elaborating on Knox’s effort to create and defend the federal police

power and the harmless items limit as the best way to allow the federal government to “solve
problems created by the increasing integration of the national economy”).

39. DAVID E. BERNSTEIN, REHABILITATING LOCHNER:  DEFENDING INDIVIDUAL RIGHTS
AGAINST PROGRESSIVE REFORM 44 (2011) [hereinafter BERNSTEIN, REHABILITATING LOCHNER]
(explicating the intense opposition to individualism expressed by leading progressives and
explaining progressives equally intense support for majoritarian paternalism).



426 INDIANA LAW REVIEW [Vol. 47:421

a guideline conceived by one of America’s most influential lawyers, Philander
Knox, Part III offers a non-orthodox conception of the Lochner Court.  This
contrasting viewpoint suggests that the Court’s Lochner era decision-making
correlates with the nation’s and the Court’s capitulation toward paternalism and
progressive values rather than with a firm defense of liberty.  Despite the
Hammer Court’s application of the harmless items doctrine to constrain
Congress’s police power, this decision, regardless of its critics’ claims, was part
of a shrewd calculus that ultimately subordinated individual liberty to the needs
of an increasingly interconnected nation.  Thus appreciated, Hammer implicates
any principled understanding of Lochner.  This Article shows that;
notwithstanding the elegance of liberty of contract jurisprudence and quite apart
from whether Lochner squares with anything resembling an originalist
understanding of due process, a proposition that Chapman and McConnell deny;40
the emergence of today’s welfare state, which resembles a dystopian reality richly
symbolized by the manifestation of legions of “one percenters” who insist on
occupying America’s capital city,41 was an unfortunate but predictable outcome.

I.  LIBERTY OF CONTRACT:  REDISCOVERING A LOST CONSTITUTIONAL RIGHT?

Mayer argues that 

For a period of exactly 40 years, from 1897 until 1937, the Supreme
Court protected liberty of contract as a fundamental right, one aspect of
the basic right to liberty safeguarded under the Constitution’s due process
clauses, which prohibits government—the federal government, under the
Fifth Amendment, and states, under the Fourteenth Amendment—from
depriving persons of “life, liberty, or property without due process of

40. Chapman & McConnell, supra note 28, at 1793-94; see also Frohnen, supra note 15, at
531 (suggesting the contention that the Constitution necessarily protects natural rights to “life,
liberty and the pursuit of happiness” as a Lockean formulation that is highly protective of property
rights, constitutes an un-nuanced view of the origins and purpose of American constitutionalism). 
But see Barnett, supra note 13, at 5-12 (defending Lochner through an application of the Privileges
or Immunities Clause); and Barry Cushman, Ambiguities of Free Labor Revisited:  The Convict-
Labor Question in Progressive-Era New York, in MAKING LEGAL HISTORY:  ESSAYS ON THE
INTERPRETATION OF LEGAL HISTORY IN HONOR OF WILLIAM E. NELSON 117 (R. B. Bernstein &
Daniel J. Hulsebosch eds., 2013) [hereinafter Cushman, Ambiguities of Free Labor] (indicating that
“late-nineteenth century jurists viewed the inherent right of freedom of contract as embracing ‘the
right to use and dispose of property’”).  More generally, questions arise as to whether the original
public meaning of the Constitution can be defended as a sufficient for human flourishing.  See, e.g.,
Patrick McKinley Brennan, Two Cheers for the Constitution of the United States:  A Response to
Professor Lee J. Strang, 80 FORDHAM L. REV. RES GESTAE 104, 104-05 (2012) (expressing only
qualified supported for the focus on original intent, original meaning). 

41. John H. Fund, The One Percenters’ Fortress City, THE AMERICAN SPECTATOR, June
2012, available at http://spectator.org/articles/35535/one-percenters-fortress-city, archived at
http://perma.cc/A33B-WJDW (the top one-half of one percent of counties in the United States, two-
thirds of the total, is dominated by counties surrounding Washington, D.C.).



2014] REVISING THE REVISIONISTS? 427

law.”42

Professor Mayer considers a number of important questions.  Is a bakery
employee free to work as many hours as he and his employer agree to in order to
earn more money to support his family?43  Does a homeowner have the right to
sell her home to whomever she wishes despite a city ordinance precluding the
sale to someone of a different race?44  Can an owner of a new business enter a
market in order to compete with established companies?45  Are parents free to
send their children to private schools, and are private schools free to compete
with government-funded schools?46  Mayer demonstrates that, “[a]t one time in
American history, the Supreme Court answered yes to each of the above
questions” premised on an individual’s “liberty of contract” interest.47  In
addition, Mayer examines the philosophical underpinnings of liberty of contract
and the conflict between economic substantive due process and the goals of
progressive reformers, particularly in the economic arena, in order to dispute the
dominant narrative regarding the “lost constitutional right.”48

A.  Historical Foundations of Liberty of Contract
It is possible that economic substantive due process can be “grounded in such

antebellum ideological concerns [such] as the aversion to factional politics” and
“class legislation” or the free labor ideology that is traceable to both the anti-
slavery movement, and the notion of “self-ownership, and particularly ownership
of one’s own labor.”49  In any case, this doctrine and its corresponding liberty of
contract rule have sparked a blizzard of claims and counter-claims regarding the
identification of this principle as a legitimate right that deserves judicial
protection.  Among the many contentions are claims suggesting that the framers
of the Fourteenth Amendment anticipated that economic liberties should be
protected under the Privileges or Immunities Clause of the Fourteenth
Amendment rather than the Due Process Clause,50 that post-Reconstruction cases

42. MAYER, supra note 1, at 1.
43. Id.
44. Id.
45. Id.
46. Id.
47. Id.
48. Id. at 1-2.
49. See, e.g., Barry Cushman, Ambiguities of Free Labor, supra note 40 (quoting Revisited:

The Convict-Labor Question in Progressive-Era New York (abstract)), forthcoming in MAKING
LEGAL HISTORY: ESSAYS ON THE INTERPRETATION OF LEGAL HISTORY IN HONOR OF WILLIAM E.
NELSON (R. B. Bernstein & Daniel J. Hulsebosch eds., 2012), available at http://ssrn.com/
abstract=1807114 [hereinafter Cushman, Ambiguities of Free Labor].  Evidently, factional politics
and class legislation generate unjustified special benefits for favored groups and individuals.  See
id. 

50. See, e.g., Kurt Lash, The Constitutional Convention of 1937:  The Original Meaning of
the New Jurisprudential Deal, 70 FORDHAM L. REV. 459, 464 (2001).



428 INDIANA LAW REVIEW [Vol. 47:421

may exonerate Lochner of the charge of being unprecedented,51or that New Deal
Justices appointed to end liberty of contract jurisprudence did so by emphasizing
the constitutional text, and an interpretive method based upon the original
meaning of the Constitution.52  Nevertheless, the prevailing narrative emphasizes
more orthodox claims.  Although it is true that some members of the Progressive
vanguard, such as Roscoe Pound, disagreed with the orthodox position that
liberty of contract analysis arose from the desire of individual judges to project
“their ‘personal, social and economic views into the law,’”53 they nonetheless
presumed the correctness of the equally orthodox view that liberty of contract
analysis was simply a new doctrine that appeared suddenly in late-nineteenth
century jurisprudence.54  Mayer shows that these claims were mistaken.55 

First, Mayer densely examines the history of liberty of contract in order to
illustrate that the application of this doctrine to state and federal legislation was
not a newfangled effort.  He demonstrates that substantive due process originated
in two well-established precedents in American constitutional law:  “the
protection of economic liberty and property rights through . . . the U.S.
Constitution’s due process clauses or equivalent provisions in state constitutions”
and “the limitation of state police powers through the enforcement of certain
Constitutional rules . . . .”56  What was novel during the latter part of the
nineteenth century was the judicial identification of these doctrines as the right
of “liberty of contract” and the protection of this right through the Due Process
Clauses of either the Fourteenth57 or the Fifth Amendment.58 

Fourteenth Amendment due process cases raised three primary issues: 
whether the party challenging government regulatory authority had
identified a legitimate right deserving of judicial protection; the extent to
which the court should or should not presume that the government was
acting within its inherent “police power”; and, finally, taking the
decided-upon presumption into account, whether any infringement on a
recognized right protected by the Due Process Clause was within the
scope of the states’ police power, or whether instead it was an arbitrary,
and therefore unconstitutional, infringement on individual rights.59

Evidently, “[t]he concept of liberty thus was central to Anglo-American
constitutional thought during the era of the American Revolution; indeed, it was

51. Chapman & McConnell, supra note 28, at 1794 (noting that the existence of post-
Reconstruction cases is irrelevant to any argument that Lochner was consistent with the original
public understanding of the Constitution, whether in 1791 or in 1868).

52. Lash, supra note 50, at 478-80.
53. MAYER, supra note 1, at 11.
54. Id. at 11-12.
55. Id. 
56. Id. at 11.
57. Id.
58. Id. at 3.
59. BERNSTEIN, REHABILITATING LOCHNER, supra note 39, at 3-4.



2014] REVISING THE REVISIONISTS? 429

central to early American law.”60  Hence, constitutional protection of individual
liberty, including economic liberty and the protection of private property rights,
drew on cultural and legal currents percolating through the nation that predated
the Constitution itself.61  Congruent with these insights, and contrary to modern
scholars who assert that substantive due process did not originate until the middle
of the 19th century with the Dred Scott case,62 the record suggests that American
courts began to apply substantive due process shortly after the adoption of the
Constitution itself.63 

Second, featuring far-reaching limits on public or state power, and putatively
rejecting paternalism,64 the implementation of doctrines that favored the interests
and pursuits of happiness by individuals became the paramount goal of the
nation.65  Largely influenced by English radical Whig opposition during the
Revolution, liberty was theorized as something more than mere freedom to do
what the law allows.66 Rather, Patriot leaders perceived that liberty is a natural
right of individuals to do what they will, provided they do not violate the equal
right of others.67 This intuition signifies that “what was truly radical about the
American Revolution was that it made the protection of individual rights
(including liberty in this broader sense as well as property rights) the test for
government’s legitimacy.”68  Unquestionably, early American law diverged from
the ideals envisioned by late nineteenth century classical liberals or modern
libertarians.69 Nonetheless, advanced by the idea that allowing an individual to
live upon one’s own terms (as opposed to the state of “‘[s]lavery’, which is ‘to
live at the mere [m]ercy of another’”),70 and consistent with Thomas Paine’s
freedom agenda,71 it appears that early American law “deviated radically from the
British paternalistic system by the degree to which it . . . promoted individual
freedom.”72  Rather than reflecting the preferences of a compliant judiciary that

60. MAYER, supra note 1, at 12.
61. Id.
62. Id. at 22 (disputing this view). 
63. Id. at 20.
64. Id. at 13 (“The rejection of paternalism was manifest in many developments in

Revolutionary-era society, among them the rise of contract law and even the ever-growing
popularity of laissez-faire economics, perhaps best illustrated by the Philadelphia merchants’
opposition to price controls in 1777-78.”). 

65. Id.
66. Id. at 12.
67. Id. (Apparently, the framers of early American constitutions “understood two critically

important foundational principles: first, that the essential function of government was to protect the
rights of individuals (including their right of liberty); and second, that the essential function of a
constitution was to limit or control government power”).

68. Id.
69. Id. at 13.
70. Id. at 15.
71. Id. at 14.
72. Id. at 13.



430 INDIANA LAW REVIEW [Vol. 47:421

favored entrenched interests, this deviation from paternalism and the
accompanying preference for liberty were deeply conceptualized so as to
encompass the right to property consistent with the notion that, for eighteenth-
century Americans, property and liberty were inseparable companions.73  Without
security for one’s property, one could only live on the basis of another’s
sufferance.74  When liberty of contract was applied, courts were prepared to
dismiss deceptive attempts to shelter legislation under the guise of promoting
public health or some other aspect of a jurisdiction’s police power,75 and this is
so despite an apparent lack of explicit evidence that Lochner and its correlative
substantive due process doctrine were consistent with the original public
understanding of the Constitution, both in 1791 or when amended by the
Fourteenth Amendment in 1868.76 

B.  Economic Substantive Due Process in the Mirror of Progressive Reform
Modern scholars repeatedly return to the contention that Lochner represents

the promulgation of judicial policy preferences as part of the commitment of
judges to “laissez-faire” constitutionalism and to the advancement of the interests
of rich capitalists.77  This perspective, “originat[ing] in the legal scholarship . . .
[of] the Progressive Era”, led to the emergence of Progressivism, a moderate-to-
radical reform movement involving a diverse collection of Americans who shared
the conviction that government at all levels should play a more active role in
regulating the economic and social life of the nation.78  Although Progressives
saw themselves as leaders of a novel movement, Mayer verifies that
“Progressivism was itself based on the paternalistic and collectivist threads that
ran deeply through the Anglo-American common-law tradition.”79  

Like the Fabian socialists, their counterparts in Britain, who harkened
back to the “Tory paternalism” of the 18th century, American
Progressives championed various “protective” labor laws (particularly
regarding women, children, and other supposedly vulnerable classes of
workers), liquor prohibition and other forms of morals legislation, and in
general a category of laws called ‘social legislation’ by modern
scholars.80

Social progress legislation posed a challenge to individuals who asserted that
government regulation infringed upon their legitimate liberty rights.

Since liberty of contract was largely attached to the concept of economic

73. Id. at 16.
74. Id. at 16-17.
75. Id. at 22-23.
76. Chapman & McConnell, supra note 28, at 1794.
77. MAYER, supra note1, at 2-3.
78. Id. at 3.
79. Id. at 55.
80. Id.



2014] REVISING THE REVISIONISTS? 431

liberty, conflict between this right and the tenets of both the Progressive
Movement and the New Deal was inevitable.  Mayer shows that economic liberty
could be broken down into the following categories:

[F]irst, freedom of labor (including the freedom of both employers and
employees to bargain over hours, wages, and other terms of their labor
contracts); second, freedom to compete (including the freedom to pursue
a lawful trade or occupation and to compete with others already in the
market); and third, freedom of dealing (including the right of refusal to
deal . . .).81

Identification of one or more these rights might be sufficient to limit government
police power.  Although Mayer neglects to sufficiently emphasize the highly
paradoxical effects of Progressive reform efforts, it is important to establish such
effects for the purposes of this Article.  Notably, some Progressive scholars,
taking their cues from prominent Fabians such as Sidney and Beatrice Webb,
were provoked by the claim that “workers who received less than the ‘living
wage’ and employers who paid less, were parasites.”82 Progressive leaders
surrendering to the enticing deduction that “social progress is ‘a higher law than
equality,’” “proposed the ‘eradication of the vicious and inefficient’”83 in order
to further society’s advance.  In concert with the paternalistic and social progress
inclinations that prompted them to act, many Progressives followed the
exclusionary direction supplied by eugenics, race science, and the pursuit of
perfection.84  Congruent with the observation that “the scientistic path led not
only to a false picture of man and society, but also gave the impressions that
social science could be an effective tool for social control,”85 Progressive experts
sought ways to regulate immigrant groups that they perceived to be hereditarily
predisposed to low standards of living, as well as schemes to mitigate the
possibility that Anglo-Saxon males, who they saw as more productive, would
otherwise be displaced by “less productive” Chinese, African-American, and
Jewish workers who they saw as racially inferior.86  Embracing this tempting
illogical position, as well as the interpenetration of scientism and paternalism,
Progressives were goaded by the presumption that large numbers of inferior
people might outbreed superior races.87 

Social progress reformers sought to expand the size and scope of government
by coupling blithe self-confidence in their own capacity to design effective

81. Id. at 70.
82. Harry G. Hutchison, Waging War on “Unemployables”? Race Low-Wage Work, and

Minimum Wages: The New Evidence, 29 HOFSTRA LAB. & EMP. L.J. 25, 41 (2011) [hereinafter
Hutchison, Waging War on “Unemployables”].

83. Bernstein & Leonard, supra note 20, at 183-84 (quoting Simon N. Patten).
84. Hutchison, Waging War on the “Unfit,” supra note 11, at 21.
85. BOETTKE, supra note 2, at 177 (discussing F. A. Hayek’s criticism of scientism Hayek). 
86. Hutchison, Waging War on the “Unemployables,” supra note 82, at 41.
87. Id. at 41-42.



432 INDIANA LAW REVIEW [Vol. 47:421

programs with a “dangerous faith in the benevolence of the state and its agents.”88 
Straying from concepts such as the invisible hand or the insight that voluntary
human exchange leads to a spontaneous, durable, and defensible social order,89
the reformers’ faith in the benevolence of the state was reinforced by a rising
hostility toward “the individualist philosophy that [Progressives] perceived in the
courts’ protection of liberty of contract.”90  Learned Hand, a true believer in the
Progressive Movement, was so distressed by judicial decisions that invalidated
maximum-hours and minimum-wage legislation that he advocated the total repeal
of the due process provisions of the Fifth and Fourteenth Amendments in order
to deny courts the power to protect liberty of contract.91  

Contempt for Lochner era jurisprudence was catalyzed by Justice Holmes’s
dissent in Lochner.92  According to Holmes, the Lochner majority’s decision was
driven simply by their prior surrender to laissez-faire ideology, quite apart from
the Constitution itself.93  Per Holmes’s account, 

[t]he word ‘liberty,’ in the 14th Amendment, is perverted when it is held
to prevent the natural outcome of a dominant opinion, unless it can be
said that a rational and fair man necessarily would admit that the statute
proposed would infringe fundamental principles as they have been
understood by the traditions of our people and the law.94

A principled reading of Holmes’s claim indicates that even he agreed with the
proposition that there must be some limitation on majoritarian paternalism
embedded in the contested maximum-hours legislation at issue in Lochner.95 
Still, in Holmes’s defense, it can be argued that “[t]he liberty of contract on which
the [Lochner] majority relies is not set forth anywhere in the Constitution and
contradicts the uniform understanding from the Founding era through
Reconstruction that legislatures have the authority to pass prospective and general
legislation affecting contracts.”96  If this claim is correct, few constitutional limits
on paternalism exist.  Similarly, a principled reading of the majority’s reasoning
in Lochner supports elements of the paternalist agenda.97 

Nevertheless, it is essential to isolate Holmes’s Lochner dissent as a critical
element in the perpetuation of the fable that laissez-faire constitutionalism and

88. Andrew Scull, Progressive Dreams, Progressive Nightmares: Social Control in 20th
Century America, 33 STAN. L. REV. 575, 577 (1981) (reviewing DAVID J. ROTHMAN, CONSCIENCE
AND CONVENIENCE: THE ASYLUM AND ITS ALTERNATIVES IN PROGRESSIVE AMERICA (1980)). 

89. BOETTKE, supra note 2, at 43-45.
90. MAYER, supra note 1, at 3.
91. Id.
92. Id. at 3-4.
93. Id. at 4.
94. Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting).
95. MAYER supra note 1, at 4.
96. Chapman & McConnell, supra note 28, at 1793.
97. Nelson Lund, & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 MICH.

L. REV. 1555, 1565 (2004); see also infra Part IV B.



2014] REVISING THE REVISIONISTS? 433

liberty of contract are associated with legal formalism98 and, as such, mandated
judicial intervention grounded on the observation that “law [was] frozen, with its
principles and values set and its rules determined for all time.”99  Legal
formalism, so the story goes, operated in stark contrast with sociological
jurisprudence, which Progressives saw as a more “realistic, democratic, and
humane” theory of law.100  Law, according to this viewpoint, was “not a body of
immutable principles and rules” but rather a constantly changing and perpetually
evolving “institution shaped by social pressures.”101 This scientistic view of
law—as constantly changing and evolving—reified presumptions enunciated by
Woodrow Wilson, who believed that “[g]overnment was not a machine but a
living thing . . . [that] falls not under the Newtonian theory of the universe, but
under the Darwinian theory of organic life.”102  Presumptively, the “ever-
expanding power of the state was entirely natural”; correspondingly,
constitutional limits on governmental power were a mere momentary phase in an
irresistible evolutionary movement that would see individual citizens exchange
their own sense of personal achievement for the greater good, as divined by
Progressive experts who strove to submerge individuated human identity into an
ever-growing collectivity.103  Quaint principles, such as hostility to “class”
legislation, “free labor” ideology in the antislavery movement, or liberty of
contract (whether or not tied to the original meaning of the Fifth and Fourteenth
Amendment’s Due Process Clauses),104 could not stand in the way of sociological
jurisprudence or the intelligentsia’s pseudo-scientific commitment to the
evolutionary process.  In contrast, building on a foundation provided by
revisionist scholarship challenging the dominant, neo-Holmesian view of the
Lochner era,105 Mayer argues that the “orthodox view is wrong in virtually all of
its assumptions, which were based on myths originally propounded by
Progressive-Era scholars that have been perpetuated by modern scholars who
similarly defend the policies of the modern regulatory state.”106 

The most important of these myths concerns the conflation of liberty of
contract, as a possible defense against arbitrary government action, with laissez-
faire constitutionalism.107 Reacting furiously to a few successful legal challenges

98. MAYER, supra note 1, at 4.
99. Id. at 4-5.

100. Id. at 5.
101. Id.
102. JONAH GOLDBERG, LIBERAL FASCISM:  THE SECRET HISTORY OF THE AMERICAN LEFT

FROM MUSSOLINI TO THE POLITICS OF MEANING 86 (2007).
103. See id. at 83-93.
104. MAYER, supra note 1, at 5; see also Barnett, supra note 13, at 9 (defending the passage

of the Civil Rights Act of 1866 on grounds that by abolishing the economic system of slavery, the
Thirteenth Amendment empowered Congress to protect the system of free labor and the underlying
rights of property and contract that defined that system).

105. MAYER, supra note 1, at 5. 
106. Id. at 6.
107. Id.



434 INDIANA LAW REVIEW [Vol. 47:421

to federal and state police power, Progressives engaged in a sustained and
sedulous effort to confuse liberty of contract with laissez-faire.108  On the other
hand, building on the historical109 and philosophical foundations110 of substantive
due process, Mayer contends that “the Court was not engaged in judicial activism
when it protected liberty of contract as a fundamental right during the 40-year
period prior to 1937.”111  He avers instead that “the Court was simply enforcing
the law of the Constitution, specifically the right to liberty as protected
substantively under the Fifth Amendment’s or the Fourteenth Amendment’s due
Process clause.”112  Although this claim is contestable as a matter of adjudication
grounded in the original public meaning of the text of the Constitution,113 per
Mayer’s account, the rights associated with liberty of contract were moderate if
not modest, and they could not stand in the way of “laws that legitimately fit
within one of the traditional exercises of the police power, for the protection of
public health, safety, order, or morals.”114  While there are obvious dangers to this
rather constrained construal of contract rights,115 a construal that limits liberty
rather than expanding it, Bernstein verifies “that the liberty of contract doctrine
was grounded in precedent and the venerable natural rights tradition.”116 Taken
as a whole, revisionist scholarship supports the impression that the Supreme
Court viewed liberty of contract as a form of jurisprudence, which differs
substantially from mythic accounts that suggest this doctrine: (1) was merely a
convenient cover for judicial preferences favoring the rich and (2) appeared
suddenly.117

108. See, e.g., Sawyer, supra note 37, at 1-3; see also EDWARD S. CORWIN, THE COMMERCE
POWER VERSUS STATES RIGHTS: “BACK TO THE CONSTITUTION” 18, 253 (1936) (asserting that
decisions such as Hammer v. Dagenhart are “as lacking in precedential antecedents” while placing
the case in the “era of laissez-faire-ism on the Bench”); Kent Greenfield, Law, Politics, and the
Erosion of Legitimacy in the Delaware Courts, 55 N.Y.L. SCH. L. REV. 481, 487 (asserting that the
reasoning in Hammer was  “incoherent, unworkable, and transparently political”). 

109. MAYER, supra note 1, at 11-42.
110. Id. at 43-67.
111. Id. at 66.
112. Id. at 66-67.
113. Chapman & McConnell, supra note 28, at 1794 (suggesting that revisionists who contend

that the Lochner decision rested on sound principles of economics and liberty, that concepts of
natural rights and liberty of contract had deep roots in political theory, and that the bakers’ hours
legislation struck down in the case was a disguised  scheme to favor entrenched and well-heeled 
special interests, which may mean that conventional  attacks on the underlying ideology of the
decision may well be unfounded but any claim that  the decision rested on sound legal principles
is unpersuasive, at least as an originalist  matter since the “liberty of contract idea” did not come
to contract law until the 1870s, and was adopted by the Supreme Court as a constitutional right only
in the 1890s). 

114. MAYER, supra note 1, at 67.
115. See infra Part IV. 
116. BERNSTEIN, REHABILITATING LOCHNER, supra note 39, at 3.
117. See, e.g., id. at 8-23 (dispelling myths); see also RICHARD A. EPSTEIN, HOW



2014] REVISING THE REVISIONISTS? 435

II.  THE MEANING AND DURABILITY OF LIBERTY OF CONTRACT
JURISPRUDENCE

Determining that liberty of contract analysis differs in substantial respects
from the realm of myth gives rise to questions and confusion regarding the actual
content and meaning of economic due process and liberty of contract as practiced
by courts during the Lochner era.  Confusion arises first because substantive due
process and liberty of contract have been deployed to sort out the limits of both
the state and federal police power,118 as well as limits on the power of state
governments to interfere with voluntary agreements negotiated by individuals and
firms.  Second, even if the liberty of contract doctrine was not issued by judges
projecting their own personal preferences into law, and even if it was grounded
in widely accessible precedent,119 questions arise regarding the standards used by
courts in applying this disputed doctrine.  The following subsections address such
questions. 

A.  The Police Power and Liberty of Contract?
To be clear, the police power is virtually indefinable, but “had its origins in

the English common-law concept that one ought to use one’s property in such a
way as not to injure that of another.”120  Today, the police power encompasses the
authority of state and federal legislatures to protect public health, safety, and
morals121 against contrary claims by individuals asserting that such regulation
infringes upon legitimate rights.  The deployment of the federal police power has
the added complication that its use has often been intertwined with questions
about the reach and content of the Commerce Clause, which raises questions
regarding the extent of Congress’s power to regulate interstate commerce and
limit freedom of contract.122  During the nineteenth century, courts, particularly

PROGRESSIVES REWROTE THE CONSTITUTION 14-51 (2006) (suggesting that courts during the period
before the New Deal and long before Lochner, evinced a deep respect for classical liberal values
including competition and individual choice).

118. Barry Cushman, Doctrinal Synergies and Liberal Dilemmas:  The Case of the Yellow-
Dog Contract, 1992 SUP. CT. REV. 235, 241 [hereinafter Cushman, Doctrinal Synergies] (arguing
that since the federal government, as a government of enumerated powers, did not have residuary
police powers, but that Congress did possess a power analogous to the police powers of the state
legislatures enabling it to protect the free flow of interstate commerce).

119. MAYER, supra note 1, at 11 (describing two lines of precedents that were well established
in early American constitutional law).

120. Id. at 25.
121. Id.
122. See Cushman, Doctrinal Synergies, supra note 118, at 238-43 (examining the idea of

liberty of contract in the context of Congress’ power to regulate interstate commerce and suggesting
judicial support for the notion that the Fifth Amendment may constitute an independent limitation
on the federal power to regulate commerce but also admitting that a legitimate basis for regulating
contractual relations of businesses affected with the public interest may exists).



436 INDIANA LAW REVIEW [Vol. 47:421

state courts, recognized several limits on the police power.123
One limit of particular note regarding state legislative power was the

prohibition against the enactment of any law that impaired the obligations of
contract.124  In addition, the police power was subject to unwritten limits that
required equal treatment under the law, meaning that a law could not single out
specific groups or classes for special treatment.125  On the other hand, Mayer
argues that Lochner and other liberty of contract decisions were based on
substantive due process protection of liberty and property considerations that are
independent of police power questions.126  Whether or not this claim is correct
exceeds the scope of this Article.  In any case, what emerges from this confusion
is the possible argument that 

a false dichotomy has been created by those modern revisionist scholars
who debate Lochner era jurisprudence as an either-or alternative between
the prohibition on class legislation [often used to limit the boundaries of
a state’s police power] and substantive due process protection of liberty
[often deployed to protect what came to be known as liberty of
contract].127

In reality, limits on either the police power or on liberty of contract became a
tangled web that may be difficult to unravel. 

In practice, state courts were principally focused on limiting police powers
by enforcing prohibitions on class legislation (i.e., legislation granting particular
benefits to some or imposing peculiar burdens on others).128  Assertions of state
police powers were met with skepticism, leading one court to invalidate a statute
offered under the guise of advancing the public health, because the legislature had
arbitrarily interfered with personal liberty and private property.129  On the other
hand, when and if the Supreme Court deployed liberty of contract and substantive
due process analysis, it did so to prohibit a wide range of behavior, including
English-only laws passed by the legislature of Nebraska130 and the enforcement
of a Louisville, Kentucky ordinance designed to interfere with the freedom of
African-Americans to purchase homes in Caucasian neighborhoods.131 

In considering the distinction between, if not the intersection of, police power
limits and the prophylactic effects of liberty of contract, it is useful to note that
Mayer refrains from defending a more robust conception of liberty, one that is

123. MAYER, supra note 1, at 26 (“Ordinarily, courts were willing to declare invalid statutes
that directly conflicted with positive constitutional prohibitions, including general protections of
liberty and property rights under due process of  ‘law and the land’ provisions.”).

124. Id.
125. Id.
126. Id. at 30.
127. Id. at 32.
128. Id. at 28-29.
129. Id. at 23.
130. Id. at 89 (discussing Meyers v. Nebraska, 262 U. S. 390 (1923)). 
131. Id. at 92 (discussing Buchanan v. Warley, 245 U. S. 60 (1917)). 



2014] REVISING THE REVISIONISTS? 437

conclusively grounded in the notion of higher law principles and, if applied,
would prevent the exercise of the police power, except in cases that invoke the
sic utere doctrine, which supports laissez-faire constitutionalism.132  The sic utere
approach would preclude all police power regulation unless the actor used her
freedom to inflict harm on the person or property of another.133  As advanced by
Christopher G. Tiedeman’s police power analysis, enforcement of the sic utere
doctrine would condemn as unconstitutional laws that regulate hours and wages
of workers, usury laws, anti-miscegenation laws, and gambling laws.134  It is
relatively easy to deduce that such laws might be precluded by liberty of contract
jurisprudence as well.  One needs to look no further than Lochner itself, where
the Supreme Court used liberty of contract analysis to invalidate New York’s
maximum hour law. Contrary to Tiedeman’s view, “neither in Lochner nor in any
of its other liberty-of-contract decisions did the Court follow any sort of laissez-
faire ideology.”135  However, if the goal is liberty per se, then Mayer’s analysis
begs the question: what is wrong with the doctrine of laissez-faire?  Rather than
answer that question or make the normative case for laissez-faire and a more
robust conception of liberty, Mayer shows that courts refused to honor the limits
of the sic utere approach.  Instead, the Supreme Court was prepared to rupture
this doctrine premised on the reasonableness of police power that the legislative
body asserted.  This profoundly-weakened conception of liberty was consistent
with the view that an individual’s freedom was not unlimited.136 

Nevertheless, in a police power context, when protecting an individual’s
liberty through a general rule that forbade legislative interference with freedom
of contract, the Court, in effect, applied a general presumption in favor of
liberty.137 Of course, this presumption could be overcome rather easily by a
judicial finding that the law in question was a legitimate exercise of one of the
many recognized functions of the police power.138  Parenthetically, this approach
was also consistent with the philosophical underpinnings of Hammer v.
Dagenhart, which enabled courts to constrain liberty premised on a reasonably
broad conception of the federal police power so long as Congress did not breach
the harmless items limit on its authority.139  Still, legislative attempts to overcome
the general presumption in favor of liberty were made more difficult by virtue of
the fact that courts during the Lochner era did not always accept at face value the

132. Id. at 60-61.
133. Id.  As formulated by leading legal scholar Christopher G. Tiedeman, not only would the

sic utere doctrine preclude the radical experimentation of social reformers, it would prevent
virtually all forms of legal paternalism.  See id. at 60.  As used by Tiedeman, the doctrine of sic
utere obliged everyone to use his own property to exercise his own liberty so as not to harm the
property or liberty of another; the police power was limited to enforcing this principle.  Id. at 61.

134. Id.
135. Id. at 67.
136. Id. at 64.
137. Id. at 65.
138. Id.
139. See infra Part IV.



438 INDIANA LAW REVIEW [Vol. 47:421

government’s rationale for a challenged law.140  Mayer maintains that courts
followed Justice Harlan’s injunction to look at the substance of things:  “that is,
to critically examine whether ‘a statute purporting to have been enacted to protect
the public health, the public morals, or the public safety’ had ‘a real or substantial
relation to those objects’ or instead was ‘a palpable invasion of rights secured by
the fundamental law.’”141  In protecting liberty of contract against the state’s
intersecting claim of police power legitimacy, Justice Peckham in his opinion for
the Court in Lochner,142 articulated the following test of statutory validity:  

Is this a fair, reasonable, and appropriate exercise of the police power of
the State, or is it an unreasonable, unnecessary, and arbitrary interference
with the right of the individual to his personal liberty, or to enter into
those contracts in relation to labor which may seem to him appropriate
or necessary for the support of himself and his family?143

The Court answered this question by determining that courts must apply a means-
ends test.144   The mere assertion that the subject relates to the public health or to
some other legitimate exercise of the police power does not render the enactment
valid; rather, the statute must have a more direct relation as a means to an end,
and the end itself must be appropriate and legitimate before an act can be held
valid, particularly when it interferes with the general right of an individual to be
free in his person and in his power to contract with relation to his own labor.145

B.  The Doctrine and Its Scope
As advanced by Professor Mayer, liberty of contract jurisprudence was

simply a moderate paradigm centered on a presumption in favor of liberty.146  The
precise boundaries of this approach meant that courts protected liberty in a
limited context—freedom to make contracts—rather than protecting, in all its
aspects, a general and absolute right to liberty limited only by the definitional
constraints imposed on liberty itself (i.e., doing no harm to others).147 Second, the
courts protected this freedom under a standard that permitted the government to
restrict its application through various exercises of the police power by creating
a rebuttable presumption that the challenged law exceeded the government’s
legitimate police power.148 As an illustration of the scope of liberty protected by
the Fourteenth Amendment’s Due Process Clause, Mayer cites with approval the

140. See MAYER, supra note 1, at 65.
141. Id.
142. Id.
143. Id.
144. Id.
145. Lochner v. New York, 198 U.S. 45 (1905).
146. MAYER, supra note 1, at 63.
147. Id. at 63-64.
148. Id.



2014] REVISING THE REVISIONISTS? 439

Supreme Court’s opinion in Allgeyer v. Louisiana149: 
The liberty mentioned in that Amendment means not only the right of the
citizen to be free from the mere physical restraint of his person, as by
incarceration, but the term is deemed to embrace the right of the citizen
to be free in the enjoyment of all of his faculties, to be free to use them
in all lawful ways; to live and work where he will; to earn his livelihood
by any lawful calling;  to pursue any livelihood or avocation, and for that
purpose to enter into all contracts which may be proper, necessary and
essential to his carrying out to a successful conclusion the purposes
above mentioned.150

“[R]egarded as the Supreme Court’s first unequivocal ‘substantive due process’
case,”151 Allgeyer  held “for the first time held that the Due Process Clause
invalidated a prospective statute that prohibited entering into certain contracts.”152
 Although Allgeyer has been criticized as a novelty and a break from the original
meaning of the Fourteenth Amendment, the case offers, by its own terms, a
strained conception of liberty that protects an individual’s freedom to use her own
faculties in all lawful ways to earn a livelihood by any lawful calling.153  This
formulation is coupled with one’s right to realize one’s freedom through legally
enforceable contracts that were proper and necessary for one’s purpose.154  Mayer
intuits that Allgeyer’s emphasis on freedom of contract meant that this liberty
right was necessarily subject to certain legal constraints.155  Yet what precise
limits actually pertain to the liberty of contract doctrine?  Evidently the
constraints that emerge from duties owed by the individual to society, to the
public, or to the government supply the appropriate boundary.156  The internal
logic of this claim implies that liberty is meaningless unless a principled
conception of duties owed is on offer.  Similarly, in Adkins v. Children’s
Hospital,157 Justice Sutherland, while agreeing that freedom of contract is the
general rule, added that freedom could be abridged by exceptional
circumstances.158  American history is rich in allegedly exceptional
circumstances.  Taken together, this analysis shows that only a minimal
commitment to flexible language signals that doctrinal limitations—premised on
the duties owed by an individual or, alternatively, the meaning of exceptional
circumstances—in the hands of elites committed to regulatory encroachment

149. Allgeyer v. Louisiana, 165 U.S. 578 (1887).
150. MAYER, supra note 1, at 64 (quoting Allgeyer, 165 U.S. 578).
151. Chapman & McConnell, supra note 28, at 1733.
152. Id.
153. MAYER, supra note 1, at 64.
154. Id.
155. Id.
156. Id.
157. 261 U.S. 525 (1923) (invalidating a Washington, D.C. minimum wage for women as a

violation of liberty of contract).
158. Id. at 546.



440 INDIANA LAW REVIEW [Vol. 47:421

gives rise to the probability that liberty of contract will be the subject of ruthless
restrictions.  In the hands of judges and legislators committed to expanding the
perimeters of paternalism and postmodern language, these supposed limitations
on freedom of contract are more accurately understood as an invitation to expand
the size and scope of government. 

C.  Shrinking the Liberty of Contract Doctrine During the Lochner Era
Ample case law indicates just how fragile the liberty of contract doctrine was

in protecting the rights of flesh and blood individuals against state legislatures. 
An excellent place to begin is “with the well-known decision of Muller v.
Oregon, which sustained the constitutionality of a statute that limited female
laundry workers to a maximum of 10 hours per day.”159  Evidently, assaults on
the Oregon statute at issue rested on one simple proposition:  that women are
persons and citizens and, as such, are as competent to contract as men.160  Despite
its undeniable appeal, this claim was no match for the state’s argument in favor
of paternalism and the need to compensate for women’s “obvious” inferiority by
including additional protection for them.  Writing securely within the Progressive
tradition, and seduced by presumptive force of sociological jurisprudence, Louis
Brandeis deployed detailed sociological studies to justify this differential
legislation.161 Muller was later reinforced by the Court’s opinion in West Coast
v. Parrish, overruling Adkins v. Children’s Hospital’s liberty of contract holding. 
In upholding the State of Washington’s enactment of a minimum wage for female
workers in West Coast, Justice Hughes agreed that the Constitution does not
speak of freedom of contract; rather, it speaks of liberty.162  Liberty, as viewed by
Hughes is necessarily subject to the restraints of due process and regulation; a
statutory enactment, which is reasonable in relation to its subject and adopted in
the interest of the community, is indeed due process.163  In answering the question
of whether it is reasonable to provide a minimum wage for women, Justice
Hughes deliberated over whether the wage regime serves the community’s
interests as opposed to the interests of individual women before determining that
nothing could be closer to the public interest than protecting the health of women
from unscrupulous and overreaching employers.164  Contrary to the paternalism
residing at the heart of Justice Hughes’s opinion, at the core of prior minimum
wage decisions was a commitment to freedom of contract, long held to reside in
the Due Process Clause of the Fourteenth Amendment.165  Nonetheless, no matter
how defendable freedom of contract may have been, it could not stand in the way

159. EPSTEIN, supra note 117, at 90.
160. Id.
161. Id.
162. West Coast v. Parrish, 300 U. S. 379, 391 (1937).
163. Id.
164. JEFF SHESOL, SUPREME POWER:  FRANKLIN ROOSEVELT V. THE SUPREME COURT 406

(2010).
165. Id.



2014] REVISING THE REVISIONISTS? 441

of protecting the “weaker sex” from exploitation.166
This outcome exploits the vulnerability of an already disadvantaged class and

indicates that liberty of contract could be constrained, regardless of whether the
Court is dealing with state police power pleadings or adjudicating the federal
police power within the parameters of the Commerce Clause.  Evidently, the
Court was persuaded that liberty of contract could be restricted without a
substantive investigation of the merits of the legislation at issue so long as the
unit of government proffers the claim that it acts in “public interest.”  Hinting at
the Court’s increasing dependence on flexible language, such reasoning
anticipates the Court’s complete withdrawal of substantive scrutiny from
legislative enactments within the domain of economics and labor, and its
comprehensive surrender to state and federal legislatures, which it announced one
year later in Carolene Products.167  Still, it is remarkable that the West Coast
Court’s ostensible solicitude for the position of women, even if allowable based
on an originalist reading of the text of the Constitution, is subject to the same
objection that may be lodged against the statute in Muller:  it diminishes the
contractual rights of women by excluding them from jobs that they would most
prefer over any other available.168  Hence, neither Lochner nor liberty of contract
dogma was available to prevent paternalism from proceeding apace as the Court
failed to notice that the laws designed to protect women served as a central means
of oppressing them.169

Similarly, Epstein indicates that when President Woodrow Wilson
resegregated the U.S. Civil Service, premised on a capacious conception of the
federal government’s police power and a restricted view of the contract rights of
African Americans, the National Association for the Advancement of Colored
People chose not to make a constitutional challenge to the government’s
decision.170  Evidently, a deadly combination of a narrow conception of individual
liberty and a broad conception of government police power ensured that attacks
on this policy would have proved hopeless under Plessy.171 

Coherent with the ideals that infected the Progressive Era, an argument was
made that “if blacks lived close to whites, they would eventually cause the
downfall of white civilization through race mixing.”172  The preferred solution
required that African Americans be kept in a subservient role and denied political

166. Id.
167. Louise Weinberg, Unlikely Beginnings of Modern Constitutional Thought, 15 U. PA. J.

CONST. L. 291, 292 (2012) [hereinafter, Weinberg, Unlikely Beginnings] (stating that Carolene
Products formalized that Supreme Court’s acquiescence in the will of Congress and by extension,
the will of state legislatures) (copy on file with the author).

168. EPSTEIN, supra note 117, at 93.
169. Id. at 90.
170. Id.
171. Id. at 102-03.
172. CAMERON MCWHIRTER, RED SUMMER:  THE SUMMER OF 1919 AND THE AWAKENING OF

BLACK AMERICA 63 (2011).



442 INDIANA LAW REVIEW [Vol. 47:421

rights.173 Fearing that African Americans carried contagious diseases and,
secondarily, moved by the opinion that blacks had become disrespectful to their
white superiors, President Wilson made an appeal to the broad police power that
Progressives championed as a basis for this new policy.174  Substantive due
process review was rarely applied leaving the nation safe for President Wilson’s
subordinating maneuvers; therefore, it is no surprise that, between Reconstruction
and the New Deal, African American workers viewed Lochnerism as “much too
timid and ineffectual [as] courts gave far too much leeway to the regulatory
powers of government, allowing powerful interest groups to profit from labor
regulations at the expense of African Americans.”175  Although Court decisions
that vindicated the right to freedom of contract often had ambiguous or even clear
“pro-poor” distributive consequences, the Court nonetheless “upheld the vast
majority of the laws that had been challenged as infringements on liberty of
contract.”176  As a result, it is impossible to claim that liberty of contract
consistently protected anyone, least of all those most in need of such protection.

It is true that before issuing its Carolene Products decision177 and
accompanying principles,178 the Court, at times, protected liberty of contract by
assessing whether the substance of challenged legislation limited a person’s
liberty in contradistinction to the procedures by which the law was enacted or
enforced.179  In addition, the Court placed some limits on the power of Congress
and state legislatures in the realm of economic regulation.180  Still, it is clear that
substantive due process and the embedded doctrine of liberty of contract, even

173. Id.
174. EPSTEIN, supra note 117, at 102.
175. DAVID E. BERNSTEIN, ONLY ONE PLACE OF REDRESS:  AFRICAN AMERICAN, LABOR

REGULATIONS, & THE COURTS FROM RECONSTRUCTION TO THE NEW DEAL 7 (2001).
176. BERNSTEIN, REHABILITATING LOCHNER, supra note 39, at 3.
177. United States v. Carolene Prods., 304 U. S. 144 (1938).
178. The opinion contains two well-known principles:  (1) the presumption of constitutionality

accorded legislation regulating economic activity when challenged under the Due Process Clauses
and (2) the creation of Footnote Four, which indicated that deferential review would be
inappropriate “when legislation appears on its face to be within a specific prohibition of the
Constitution, such as those of the first ten Amendments, which are deemed equally specific when
held to be embraced within the Fourteenth.”  Nor should such a robust presumption of
constitutionality be warranted with regard to “legislation which restricts those political processes
which can ordinarily be expected to bring about repeal of undesirable legislation” nor with respect
to “statutes directed at particular religious,” “national,” “racial” or other “discrete and insular
minorities.”  Id. at 152 & n.4 (citations omitted); see also Barry Cushman, Carolene Products and
Constitutional Structure, SSRN, at 1 (Mar. 2012) [hereinafter Cushman, Carolene Products],
available at http://ssrn.com/abstract=2030439 (explaining the two above-referenced principles
associated with Carolene Products).

179. MAYER, supra note 1, at 2.
180. State and federal regulatory power within the realm of health, safety, morality, and

general welfare was limited largely to the question whether the product in question was intrinsically
harmful or not.  See Sawyer, supra note 37, at 1 (discussing the Hammer case).



2014] REVISING THE REVISIONISTS? 443

during the Lochner era, often proved to be an unreliable defense against
regulatory encroachment.  

Regardless of how constrained and unreliable liberty of contract was in
practice, this doctrine was also diminished by the fact that it was a short-lived
constitutional right.181  Mayer offers three factors to explain this development: 
first, as leading libertarian justices left the bench, the Court transitioned away
from dominance by moderate Lochnerians;182 second, despite the doctrine’s
general presumption in favor of liberty, the standard of review used by the
justices to protect liberty of contract was riddled with exceptions;183 and third,
significant changes in the law, both in constitutional law principles and in
theories of jurisprudence, as illustrated by the development of legal realism and
the justifications for expanding the scope of the police power, took hold during
the first few decades of the twentieth century.184  Although this explanation may
be apt, it seems unduly epigrammatic.

Since many explanations abound regarding the demise of freedom of
contract, in addition to Mayer’s elucidation, one ought to first reconsider David
Bernstein’s analysis. Bernstein shows that, in theory, sociological jurisprudence
constituted a coherent philosophy of law that was independent of political
considerations.185  In practice, of course, it justified Progressive advocates’
political and ideological commitments.186  Bernstein confirms that “[m]ost
advocates of sociological jurisprudence were primarily motivated by their desire
that reformist legislation, especially legislation regulating the labor market, have
a near-absolute presumption of constitutionality.”187  Secondly, Bernstein
demonstrates the importance of Holmes’s reasoning in Lochner as a spark toward
the fulfillment of the dreams of the progressive vanguard, dreams that substituted

181. MAYER, supra note 1, at 97.
182. Id. at 98.
183. Id. at 99-103 (conceding that a majority of the justices during the period between the two

world wars were unwilling to question (a) any exercises of the police power that seemed to protect
workers’ health, even if the legislation at issue effectively barred certain classes of person from
particular occupations; (b) statutes relating to the performance of public work and statutes
prescribing the character, methods, and time for payment of wages; (c) statutes regulating a
business affected with the “public interest”; (d) statutes fixing the hours of work; and lastly (e)
statutes involving matters within the traditional exercises of the police power including the
protection of public morality).

184. Id. at 103-05 (describing (a) a fundamental shift in the way the American legal culture
defined the police power from the well-defined categories of protecting the public health, safety
and morality toward a looser, less well-delineated approach that include the notion of the promotion
of the public welfare; and (b) a movement within the American legal culture from legal formalism
to legal realism that was made possible by the acceptance of sociological theories of jurisprudence
that extolled the notion that law should be seen as pragmatic and based on subjective principles as
opposed to being based in natural law and natural rights and on objective principles).

185. BERNSTEIN, REHABILITATING LOCHNER, supra note 39, at 44.
186. Id.
187. Id.



444 INDIANA LAW REVIEW [Vol. 47:421

evolutionary flux for natural law188 and exchanged the notion of the common law
based on natural rights and some form of higher law for an identifiable sovereign
as an instrument for the institution of society’s pragmatic will.189  These dreams
materialized in the form of Holmes’s much belauded dissent in Lochner, which
made him the intellectual leader of Progressive reformers regarding constitutional
law190 and an important legal theorist in the strategy to remove barriers to the
elevation of dominant opinion.191 Charles Beard, Benjamin Cardozo, and the New
Republic chimed in to proclaim that Holmes’s opinion was a “flash of lighting
[in] the dark heavens” enabling Holmes to become the voice of a new
dispensation in the realm of law.192  Although it has been argued that Holmes’s
dissent did not really separate him from his fellow justices’ methods, values, and
jurisprudence,193 widespread approval of Holmes’s views by members of the
social progress movement was grounded in distinct devotion to majoritarian
paternalism.194 Such devotion was fortified by escalating contempt for the natural
law tradition, which was already in remission, and, as such, was seen as nothing
less than a brooding omnipresence in the sky.195  Approbation and contempt
combined to reach their apotheosis in Justice Holmes’s lecture in Buck v. Bell,
which endorsed the advantages of majoritarianism, scientism, and human
exclusion.196 

“Operating in stark contrast to Lochnerian liberty-of-contract jurisprudence,
which was [occasionally] invoked to justify expanding constitutional protection
of African Americans and women,” 197 the combination of the social progress
movement, Holmes’s dissent in Lochner, and his crushing rhetoric in Buck
conforms to the jurisprudential path inaugurated by the Supreme Court in
Plessy.198 Established on a foundation fashioned by the observation that the

188. See, e. g., Bradley C. S. Watson, Oliver Wendell Holmes, Jr. and the Natural Law, THE
WITHERSPOON INSTITUTE, available at http://www.nlnrac.org/critics/oliver-wendell-holmes,
archived at http://perma.cc/8AZ8-4WGN (“Among [Holmes’] many accomplishments as a member
of the Court was to help eradicate judicial reasoning based on principles of natural law or natural
right. . . .  For Holmes, law and society are always in flux, and courts adjudicate with an eye to
law’s practical effects.  Morality has nothing to do with law; it amounts to little more than a state
of mind.  There are no objective standards for determining right and wrong and therefore no simply
just answers to legal questions.”).

189. See, e.g., S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J. dissenting) (“The
common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign
or quasi sovereign that can be identified.”).

190. BERNSTEIN, REHABILITATING LOCHNER, supra note 39, at 45.
191. Hutchison, Waging War on the “Unfit,” supra note 11, at 29.
192. BERNSTEIN, REHABILITATING LOCHNER, supra note 39, at 45.
193. Gerald Leonard, Holmes on the Lochner Court, B.U. L. REV. 1001, 1003 (2005). 
194. See BERNSTEIN, REHABILITATING LOCHNER, supra note 39, at 44.
195. Jensen, 244 U.S. at 222 (Holmes, J. dissenting).
196. Hutchison, Waging War on the “Unemployables,” supra note 82, at 42-43.
197. Id. at 42.
198. Hutchison, Waging War on the “Unfit,” supra note 11, at 21-26, 28 (demonstrating the



2014] REVISING THE REVISIONISTS? 445

Framers offered a mechanical, natural law theory in contradistinction to the
recognition by members of the intelligentsia that society was a living organism
that must obey the law of life and not mechanics, Progressives believed that the
Constitution ought to be interpreted according to evolving Darwinian principles
and standards.199   Yet in order to effectuate Progressive polices as a vehicle to
achieve societal transformation, Progressives sought judicial and legislative
compliance with their highly paternalistic goals.200 The bold effort to achieve a
paternalistic future sparked the development of an intriguing scheme.  Before
being deployed, this scheme—a broad conception of the state or federal
government’s police power coupled with an equally broad conception of
Congress’s commerce power—required a constitutional champion, one who was
willing to eviscerate the retrograde forces that continued to ascribe to the natural
law and natural rights tradition.  This is where Justice Holmes’s audacious
inclinations favoring deference to majoritarian pragmatism and paternalism took
center stage.201   The next section of this Article indicates that Holmes was not
alone in defending paternalism. Instead, his inclinations, if not his language,
accurately anticipated the subordination of liberty of contract and individualism
to the forces of progress.

III.  SHRINKING THE FORCE OF LOCHNER BY RECONSIDERING HAMMER AND
PHILANDER KNOX?

Professor Sawyer’s recent scholarship202 reconsiders the limits placed on
Congress’s power to regulate interstate commerce in order to promote the health,
safety, morality, and general welfare of the nation.203 His work offers a valuable
perspective on Professor Mayer’s spirited efforts.  First, Sawyer points out that
the federal police power was seen as a vehicle to diminish the power of individual
actors by turn-of-the-century Progressives who were increasingly looking to the
national government to address social welfare problems, particularly those
created by degenerative competition among the states.204 After celebrating a
number of early triumphs, progressive hierarchs found that Congress’s authority
to exercise its federal police power was significantly limited by the Supreme
Court in Hammer v. Dagenhart.205  Although the Court “disclaimed any inquiry
into the purpose or intent of Congress, in enacting the statute,”206 Hammer would
only allow Congress to prohibit the interstate shipment of intrinsically harmful
goods, like immoral lottery tickets, or impure food, but not items that were in and

biological connection between Plessy v. Ferguson and progressive thought).
199. Id. at 26-27.
200. Id. at 27.
201. Id.
202. See generally Sawyer, supra note 37, at 1-63.
203. Id. at 1.
204. Id.
205. Id.
206. Cushman, Carolene Products, supra note 178, at 9 (citing Justice Day).



446 INDIANA LAW REVIEW [Vol. 47:421

of themselves harmless, like the products of child labor.207  This meant that the
liberty of contract doctrine would not apply to protect the free movement of
goods or otherwise constrain federal police power if the item at issue was
inherently harmful.  Hammer limited the exercise of Congress’s police power to
the regulation or prohibition of harmful, as opposed to harmless, items.  This
limit, adopted for purposes of Commerce Clause adjudication, has been subject
to withering criticism, as inconsistent with precedent, incoherent as policy and the
product of a backward-looking commitment to a laissez-faire economy.208

It is possible that the critics are wrong.  Yet why might Hammer be relevant
for purposes of grasping the parameters of liberty of contract as a constitutional
right?  A principled understanding of Hammer is crucial not only because of its
prominent place in the canon of constitutional law but, more importantly, due to
the central role it plays in (a) supporting a contested understanding of the Lochner
Court, (b) appreciating the increasing inability of the liberty of contract doctrine
to preclude the exercise of arbitrary government power,209 and (c) defining the
parameters of the police power itself.  Hammer and its social welfare
antecedents210 indicate that the intentional effort made to diminish liberty of
contract was part of a lengthy and culturally-conspicuous process that preceded
Lochner, which implies that the Lochner opinion may well have been the end
rather the beginning of the Court’s commitment to liberty of contract.

The following subsections demonstrate that Hammer and its harmless items
limit represented the culmination of a remarkable doctrinal evolution that helped
to shape the federal police power,211 influenced future interpretations of the states’
police power, and helped to delineate liberty of contract jurisprudence.  In all
likelihood, an expansion of the domain of police power, either at the state or
federal level, correlates with a consequent reduction in the scope of the liberty of
contract doctrine as a bulwark against paternalism and accretions in government
power.  Sawyer’s analysis provides a foundation to substantiate this probability.212 
In erecting this foundation, Sawyer concentrates his scholarship on the public
career and rich private papers of the lawyer primarily responsible for establishing,
propagating, and defending both the federal police power and the harmless items
limit: Philander Knox.213

207. Sawyer, supra note 37, at 1.
208. Id. at 1-2.
209. Id. at 2-3.
210. Id. at 1 (describing decisions that recognized the federal police power and included Hoke

v. United States, 227 U.S. 308 (1913); Hipolite Egg Co. v. United States, 220 U.S. 45 (1911); and
Champion v. Ames, 188 U.S. 321 (1903)); see also Cushman, Carolene Products, supra note 178,
at 9 (adverting to Justice Holmes’ dissent in Hammer pointing out that Congress had been expressly
granted the power to regulate interstate commerce and, as such, “the exercise of its otherwise
constitutional power by Congress” could not be “unconstitutional because of its possible reaction
upon the conduct of the States in a matter upon which . . . they are free from direct control.”).

211. Sawyer, supra note 37, at 3.
212. Id.
213. Id. (reconsidering the life’s work of Philander Chase Knox).  Mr. Knox was the leading



2014] REVISING THE REVISIONISTS? 447

A.  The Harmless Items Limit as a Vehicle to Adjust Constitutional Doctrine?
Sawyer shows that the harmless items limit was not invented in Hammer by

a Supreme Court dedicated to promoting a laissez-faire economy; rather, the limit
was invented by political moderates to reform the Commerce Clause doctrine
well before Hammer and other Lochner era cases were decided.214  Acting as a
gap-filler within the realm of the Dormant Commerce Clause that prevented states
from acting to preclude social evils,215 the invention was designed to address the
challenges of a new century while preserving what political moderates viewed as
a valuable existing doctrine.216  Inherent in any effort to address new challenges
is the risk that such challenges will overwhelm any pre-existing doctrinal limits
that might otherwise constrain the application of government power to individual
citizens.  Equally true, is the fact that the ongoing effort to address new
challenges, a maneuver led largely by Progressives, may expose substantive due
process as a rather impotent doctrine, in light of the nation’s growing dependence
on expertise.

Adverting to the nation’s focus on collective action problems created by an
increasingly integrated national economy,217 and elevating human experience and
the belief that government needed to play a dynamic role in ensuring that
monopolies did not destroy functioning markets,218 the record, per Sawyer’s
account, shows that the doctrine adopted in Hammer was not an ideological
“attempt to return America to an imagined laissez-faire past, but was a half-way
house on the road to the modern Commerce Clause doctrine” 219 and its corollary,
the modern bureaucratic state.  Sawyer’s contribution to the literature
simultaneously accomplishes two things:  (1) it undermines the dominant
contention that Lochner era judges who favored liberty of contract jurisprudence
were engaged in a retrograde abuse of judicial power, and (2) it destabilizes the
contention of revisionists scholars who maintain that Lochnerian jurisprudence
can be separated from the legal and cultural currents of the day that favored
progressivism, the regulatory state, and paternalism itself.220  Consistent with the

lawyer of his day; he was asked three times to join the Court by the same two Presidents who
appointed all five members of the Hammer majority.  Id.  “As Attorney General, he shaped the
establishment of the federal police power when he oversaw the litigation in Champion v. Ames; as
a United States Senator, he helped define the limits of the doctrine in debates over the legislation
that led to the decision in Hipolite Egg; and as a Presidential candidate and a nationally respected
lawyer he defended the doctrine’s limits in the legal literature.”  Id. 

214. Id. (discussing the litigation in Champion, 188 U.S. 321, and opining that the harmless
items limit was invented well before Hammer was decided).

215. Id. at 39 (citing Justice Harlan’s majority opinion in Champion).
216. Id. at 3.
217. Id.
218. Id. at 23 (primarily discussing the views of Philander Knox).
219. Id. at 3.
220. See, e.g., id. at 5-8 (discussing the advent of case law establishing a federal police power).



448 INDIANA LAW REVIEW [Vol. 47:421

latter claim, Sawyer demonstrates that, in a number of decisions, the Court
fortified the progressive agenda and the tenets of paternalism by expressly and
substantially, weakening its commitment to substantive due process.221  He
demonstrates that in Champion v. Ames, a 1903 decision, the Court upheld a
federal prohibition on the interstate movement of lottery tickets because it
threatened the nation’s morality.222  In Hipolite Egg Co. v United States, a 1911
decision, the Court upheld the prohibition of impure or adulterated food and
drugs in order to achieve federal police power ends;223 and in 1913, in Hoke v.
United States, the Court stated that Congress could prohibit the movement of
anything in interstate commerce if the prohibition ultimately promoted the health,
safety, morality, or general welfare of the nation.224  On a doctrinal level, these
decisions, which vindicated the police power and shredded freedom to contract,
were coherent with the views of moderate Progressives, who advocated a
comprehensive rejection of laissez-faire economics.225  Notably, this rejection of
laissez-faire economics by members of the progressive or moderately progressive
vanguard including Philander Knox, among others, began as early as 1902,226
three years before Lochner was decided.227  By adopting and affirming moderate
progressive teleology that was fashioned by larger structural forces beyond the
justices’ private preferences,228 the Supreme Court’s capitulation to this approach,
in a number of Lochner era decisions, signals that if Lochner was a great victory
for liberty, then it was an inevitably impermanent one. 

Sawyer’s intuition operates contrary to the dominant narrative, which
stipulates that the Hammer majority simply ignored precedent and established a
nonsensical rule that enabled Congress to prohibit the interstate shipment of
harmful, but not harmless, goods.229  The conventional view of Hammer is
regularly joined with the conventional view of Lochner as grounds for indicting
the early twentieth-century Supreme Court for the crime of “manipulating
meaningless legal forms to protect a laissez-faire economy that privileged
powerful business at the expense of workers, the people, and children.”230  This
indictment has supported a particular view of judicial process as nothing more
than the instantiation of judicial policy preferences, which leads to the
corresponding conclusion that constitutional law is nothing more than preferences

221. Id.
222. Id. at 5-6.
223. Hipolite Egg Co. v. United States, 220 U.S. 45 (1911).
224. Hoke v. United States, 227 U.S. 308 (1913); Sawyer, supra note 37, at 6-7.
225. Sawyer, supra note 37, at 23-29 (describing Knox’s private and public rejection of

laissez-faire economics including his rejection of the notion that the market is “natural” and existed
prior to the creation of government).

226. Id. at 23.
227. See Lochner v. New York, 198 U.S. 45 (1905).
228. Sawyer, supra note 37, at 63.
229. Id. at 9.
230. Id. at 9-10.



2014] REVISING THE REVISIONISTS? 449

writ large.231  As we have previously seen,232 reality is quite different from this
highly reductionist view of constitutional law.233  Although Sawyer confirms the
revisionist contention that Lochner has been increasingly understood as having
its “roots in an abolitionist concern with free labor and a long-standing judicial
concern with the influence of factions in politics,”234 he also states that the
Lochner era Court justices stirred by the evolving zeitgeist, routinely upheld
significant regulations of the economy that impaired the promotion of a
principled conception of a free market economy.235  Hammer heralds the Court’s
acceptance of moderate progressivism and, as such, was not inconsistent with the
Court’s evolving approach to state and federal regulation.  In order to understand
this, it is necessary to consider Philander Knox’s ideological contributions to this
development.

Focusing on the life and career of Philander Knox, Sawyer shows that
moderate progressive views, as encapsulated by the harmless items limit on
federal police power, were not idiosyncratic,236 nor did they appear suddenly.237 
In 1908, as an active government participant and nationally respected lawyer who
held the trust and admiration of President Taft and President Theodore
Roosevelt,238 Knox argued for a moderate position on the reach of Congress’s
commerce power.239  In essence, Knox maintained that Congress should be able
to use its power to regulate commerce by prohibiting the interstate movement of
goods, regardless of whether or not the goods were harmful, if Congress did so
in order to protect or promote interstate commerce.240  Additionally, Congress
should be able to “prevent the channels of interstate commerce from being used
as a conduit for harmful goods, which meant that it could prohibit goods
recognized as harmful.”241  On the other hand, Congress could not prohibit “the
interstate shipment of intrinsically harmless goods,” thus anticipating the rule that
the Supreme Court adopted in Hammer a decade before the decision was
issued.242  The Knox doctrine provides, “the commerce clause was a judicially
enforceable limit on the ends Congress could pursue, rather than the grant of a
means Congress could use to pursue other ends.”243  More precisely, Knox
asserted that, 

231. Id. at 10.
232. See supra Parts II & III.
233. Sawyer, supra note 37, at 10.
234. Id. at 11.
235. Id. at 10.
236. Id. at 13-14.
237. Id. at 15-16 (discussing Philander Knox’s position in 1907 and 1908).
238. Id. at 15.
239. Id. at 16.
240. Id.
241. Id.
242. Id.
243. Id.



450 INDIANA LAW REVIEW [Vol. 47:421

Congress may employ such means as it chooses to accomplish that which
is within in [sic] power. But the end to be accomplished must be within
the scope of its constitutional powers.  The legislature’s discretion
extends to the means and not the ends to be accomplished by use of the
means.244

If an item inflicted harm in the state of destination,245 then prohibition of
harmful interstate commerce was within the realm of Congress’s authority;
however, Congress could not, under the guise of a commercial regulation, deny
a person the right to engage in interstate commerce for doing that which it could
not prohibit him from doing.246  Congress, accordingly, did not have a general
police power to prohibit the interstate shipment of any goods whenever that
prohibition would advance police power ends.247 

Contesting this view, Justice Holmes rejected virtually all limits on
Congress’s power to regulate interstate commerce.248  While Holmes’s modern
defenders doggedly insist that any opposition to Congress’s power to regulate
interstate commerce amounts to a commitment to a laissez-faire economy,249 in
reality, Holmes’s virtually unconstrained deference to legislative authority was
so broad that it allowed Congress to prohibit the interstate transportation of all
goods from states in which divorce is allowed, or in which a husband was
allowed to abuse his wife.250  Responding to the implications of this distasteful
syllogism, Professor Thomas Reed Powell rejected the suggestion of Holmes’s
dissent in Hammer that any prohibition of movement in interstate commerce
qualified as a “regulation of interstate commerce.”251  The pivotal point in
Powell’s analysis was the claim that in any activity involving the interstate
commerce of intrinsically harmful goods, Congress could still regulate harmless
products if a sufficient nexus could be demonstrated between the harm to be
prevented and the interstate movement itself.252  This reasoning clarifies Knox’s
somewhat narrower view, which would permit Congress to use the federal police
power to prohibit the interstate shipment of harmful goods only.253  Knox offered
“a formal doctrinal rule of the kind then common throughout the Court’s
constitutional jurisprudence that required a tight, rather than loose, connection
between the means of prohibition and the end of regulating interstate

244. Id.
245. Cushman, Carolene Products, supra note 178, at 10.
246. Sawyer, supra note 37, at 17.
247. Id.
248. Id. at 18.
249. Id.
250. Id. at 19 (citing Professor Thomas Reed Powell). 
251. Id.  Equally clear, Professor Powell also rejected the majority’s approach in Hammer. 

Id.
252. Id.
253. Id. at 19-20.



2014] REVISING THE REVISIONISTS? 451

commerce.”254
What does this all mean in the context of intersection of the police power,

liberty of contract, and Lochner?  Among other things, Knox and his enthusiasts
would allow legislative regulatory reform consistent with the harmless items limit
only when the reform efforts resembled something similar but not identical to an
intermediate level of judicial scrutiny rather than a rational basis review.255 
Although the Court eventually migrated from intermediate scrutiny to rational
basis review of economic legislation,256 the harmless item approach signified that
prohibition was allowable “[i]f an article was itself immoral, unhealthy, or unsafe,
[or if] its shipment in interstate commerce would cause real harm in the receiving
state.”257  Hence, prohibition would prevent a harm that was causally related to
the item’s movement in interstate commerce,258 but disguised and deceptive
legislation of the kind later favored by FDR259 could not pass muster.260 Within
this framework, if the means chosen by Congress fit tightly with the end of
regulating interstate commerce, then the law should be upheld.261  On the other
hand, if the article was intrinsically harmless, then the fit was loose, and this
looseness suggested that the law was simply an, “attempt to use the commerce
power to regulate a subject reserved for state authority and should therefore be
struck down.”262  Whether or not the harmless items limit is a doctrinal line that
requires too tight of a connection between interstate commerce and the harm that
Congress sought to prevent is a question beyond the scope of this Article.  What
Sawyer’s analysis demonstrates is that Knox, the Court, and a raft of Progressives
on both sides of the political aisle263 adopted an analytic approach that was
calculated to advance rather than impede a paternalistic agenda.  Although speed
limits were placed on the advance of the progressive reform agenda, Knox, the
Court, and many politicians embraced the harmless items limit, which

254. Id. at 20.
255. Id. (showing that Knox’s harmless items limit was, in some ways, “similar to the same

kind of means-end analysis now common in equal protection jurisprudence requiring a kind of strict
or intermediate level scrutiny rather than rational basis review”).

256. See, e.g., Cushman, Carolene Products, supra note 178, at 1 (explicating Justice Stone’s
rational basis test for regulatory initiatives affecting economic activity); see also Weinberg,
Unlikely Beginnings, supra note 167, at 1-2 (stating that Carolene Products formalized that
Supreme Court’s acquiescence in the will of Congress and, by extension, the will of state
legislatures). 

257. Sawyer, supra note 37, at 20.
258. Id.
259. Ilya Somin, Voter Knowledge and Constitutional Change: Assessing the New Deal

Experience, 45 WM. & MARY L. REV. 595, 652 (2003) (discussing FDR’s deceptive strategy for
eliciting public support for the National Industrial Recovery Act).  

260. See MAYER, supra note 1, at 22-23 (discussing the Jacobs case involving a federal law
and the People v. Marx involving a New York state law).

261. Sawyer, supra note 37, at 20. 
262. Id.
263. Id. at 21.



452 INDIANA LAW REVIEW [Vol. 47:421

successfully married liberty to the regulatory spirit of the age.264  This marriage
implicates our contested understanding of Lochner while simultaneously
suggesting that the liberty of contract doctrine, much like the federal police
power, could be the subject of endless adjustments necessitated by an evolving
economy.

It bears repeating that in Hammer, the Justices did not concoct the distinction
between harmful and harmless items in order to protect a laissez-faire economy,
putatively threatened by the federal police power.265  Rather, this distinction was
designed as a moderately progressive lubricant that would legitimize the
increasingly frequent application of federal regulatory power to the complexities
of a progressively interconnected economy.  Although the formal pedigree of this
approach could be traced back more than a decade to Knox’s 1908 article in the
Yale Law Journal,266 the most disquieting implication is that the effort to advance
paternalism and adjust constitutional doctrine to accommodate the needs of an
increasingly complex society might be traceable back to Lochner itself.

B.  Analysis: Revising the Revisionists?
After the Supreme Court withdrew even mild constitutional protection for

liberty of contract in the 1930s, a hostile perspective inherited from the
Progressives has virtually monopolized scholarly discussion of the Court’s liberty
of contract decisions.267  Although Lochner languished in obscurity for some
time,268 it was rescued from oblivion as its notoriety increased, “when both the
majority and dissent in Griswold v. Connecticut—a high profile, controversial
case decided in 1965—used it as a foil.”269  Ever since, Lochner has been part of
a highly fossilized substrate of the anti-canon in American constitutional
debates.270  Historians have had a rather easy time discrediting some of the
elements of the dominant narrative pursued by the contemporary inheritors of the
progressive movement.271  Revisionist scholarship shows that “the Supreme Court
justices who adopted the liberty of contract doctrine did not have the cartoonish
reactionary motives attributed to them by Progressive and New Deal critics.”272 
Today the Court continues to use substantive due process to protect certain
aspects of liberty, including most of the rights enumerated in the Bill of Rights
as well as other “personal” rights, 273 such as the right to privacy implicated by
Griswold.  However, following the “New Deal Revolution” of 1937, an

264. Id. at 22.
265. Id. at 22-23.
266. Id. at 23.
267. BERNSTEIN, REHABILITATING LOCHNER, supra note 39, at 2.
268. Id. (Lochner’s obscurity commenced during the late 1930s).
269. Id.
270. Id.
271. Id. at 3.
272. Id.
273. MAYER, supra note 1, at 2.



2014] REVISING THE REVISIONISTS? 453

intellectual transformation occurred in relatively obscure cases prefiguring the
advent of tiered scrutiny characteristic of modern rights-based constitutional
litigation;274 the Court “ceased protecting liberty of contract, a right it had first
explicitly recognized merely [forty] 40 years before.”275  This decision led to a
new judicial acquiescence to the will of the legislative branches of both the
federal and state governments276 and a further acceleration in the growth of both
size and scope of government.277 

Whether or not Mayer’s contention that the dominant critique of Lochner era
adjudication was primarily the result of a sustained misreading of liberty of
contract/substantive due process review,278 and whether this misreading
foreshadowed reform efforts of the 1930’s, it must be stressed that his analysis
neglects to satisfactorily explain why the Court’s putative commitment to liberty
of contract during the Lochner era was merely sporadic at best.  As scholars Lund
and McGinnis show, substantive due process led to only occasional decisions to
invalidate statutes and, accordingly, it was less like a hegemonic tool of
constitutional interpretation and more like a “random strike of lighting.”279 
Liberty of contract jurisprudence, regardless of its ostensible appeal as a bulwark
against state or federal interference in the quotidian affairs of citizens, could not
reliably preclude the instantiation of Progressive reforms since it did not provide
a principled basis for doing so.280 More worryingly, it is likely that the liberty of
contract doctrine, when honestly examined, is little more than an intriguing
doctrine that decelerated, albeit while swiftly paving the way forward toward
Progressive paternalism.  This proposition seems particularly true when one
ponders the deliberate attempt by political moderates during the Lochner era to
reform the Commerce Clause doctrine so as to empower Congress to take a more
active role in addressing the problems created by an increasingly integrated
national economy.281  Sawyer’s analysis, which concentrates on Hammer, the
harmless items limit, and the views of one of America’s leading lawyers and

274. Weinberg, Unlikely Beginnings, supra note 167, at 291.
275. MAYER, supra note 1, at 2.
276. See, e.g., Weinberg, Unlikely Beginnings, supra note 167, at 291-92 (suggesting that

Footnote Four of the Carolene Products’s decision “is surely one of the great revolutionary
achievements of the New Deal Court” that marked “a new judicial acquiescence in the will of
Congress”). 

277. This move leads inevitably to a contest to capture government-controlled resources. See,
e.g., JOHN GRAY, POST-LIBERALISM: STUDIES IN POLITICAL THOUGHT 4 (1996).

278. See generally MAYER, supra note 1, at 95. 
279. Lund & McGinnis, supra note 97, at 1565. 
280. See, e.g., id.
281. Sawyer, supra note 37, at 69; see also Samuel Issacharoff & Catherine M. Sharkey,

Backdoor Federalization, 53 UCLA L. REV. 1353, 1354-60 (2006) (suggesting that the Court has
increasingly become a willing partner of Congress in providing federal oversight to state
interference with the national market, and describing the greatly expanded power of Congress in
recognition of the fact that we live in a world with an increasingly interconnected national
commercial market).



454 INDIANA LAW REVIEW [Vol. 47:421

statesmen, Philander Knox, indicates that Court decisions characterized in the
popular imagination as standing for one proposition may be accurately
understood as standing for the opposite.

It bears emphasizing that Knox, perhaps the most influential lawyer of his
era, advanced his commitment to the “pre-historicist and teleological assumptions
of Social Darwinism not to support laissez-faire economic theory, but to
undermine it.”282  Once laissez-faire and its philosophical underpinnings were
vanquished by Social Darwinism, little stood in the way of a determined effort to
destabilize society’s modest commitment to economic liberty; including a
similarly moderate conception of liberty of contract.  In keeping with the early
views of Progressives283 and the contention that “evolutionary pressures driving
social development would ensure that the ‘social tendencies’ that survived would
be those that would be most helpful for future generations,”284 Knox, like many
of his contemporaries, “accepted that the law of the survival of the fittest was ‘as
valid and inexorable among social phenomena and forces as in any other field of
biology.’”285  Competition, in this view, “produced progress in nature and in
society and that iron law of development was largely beyond the control of
mankind.”286  Mankind could resist its consequences; however, society and the
nation’s Constitution ultimately had to accommodate this “iron law.”287  Such
views led to others, including the contention that “uncontrolled competition like
unregulated liberty is not really free.”288

The plausible implication of such Knoxian contentions for democratic
governance, and economic policy is that freedom must be secured through quasi-
scientific control and regulation.289  Although the notion that quasi-science
managed by bureaucrats should control society contradicts the principle of
freedom based on freedom of association,290 it is nevertheless true that Knox’s
views reflecting his explicit commitment to the iron law of evolutionary
development, while moderate in tone, were not dissimilar to the more radical
views of Justice Holmes, whose thinking reflected the notion that legal systems,

282. Sawyer, supra note 37, at 90.
283. Hutchison, Waging War on the “Unfit,” supra note 11, at 22-23 (describing Progressives

as those who subscribed to the notion that government was a living thing freighted by irresistible
impulses requiring ever-expanding power as part of the natural evolutionary process). 

284. Sawyer, supra note 37, at 90.
285. Id.
286. Id.
287. Id.
288. Id. at 91 (quoting Memorandum of Philander C. Knox, U.S. Att’y Gen., Comment on

“underlying laws” (in all social and industrial movements) as suggested by Kidd’s Principles of
Western Civilisation (1902)). 

289. Id. (quoting Memorandum of Philander C. Knox, U.S. Att’y Gen., Comment on
“underlying laws” (in all social and industrial movements) as suggested by Kidd’s Principles of
Western Civilisation (1902)).

290. BOETTKE, supra note 2, at 42 (quoting Frank H. Knight, The Role of Principles in
Economics and Politics, 1-29 AM. ECON. REV. 42 (1951)).



2014] REVISING THE REVISIONISTS? 455

language, and the cosmos gradually evolve to bring order out of chaos.291  The
convergence of Knox and Holmes’s views was part of a widespread and
infectious consensus compatible with both paternalism and the tendency toward
authoritarianism that is embedded in modern democracies.292  Individual freedom
must surely suffer in the process.  Consequently, and in keeping with arguments
that I have offered elsewhere,293 women, whose reproductive capacity the state of
Virginia saw as an intrinsically harmful attribute, were placed at risk both by
Justice Holmes’s pulverizing rhetoric in Buck and by the Knoxian logic of
Hammer.  All that was necessary for this risk to be realized was for society to see
human reproductive capacity in the same light (i.e., as a harmful attribute) and
then to couple it with the ideology of societal advancement and the willingness
to follow Nietzsche’s example, which is signaled by the will to use power without
moral restraint.294  Consistent with Knox’s perspective, which suggests that law
must learn from biology,295 this capitulation to Social Darwinism unleashed
Progressive reformers to “pursue standards to identify individuals and groups
who were unfit,’ as part of an . . . effort to transform society.”296  Whether
moderately or immoderately Progressive, adherents to this view were unwilling
to allow the text of documents such as the Constitution or antique conceptions of
liberty to stand in the way of a mounting effort to root out harmful products and,
by extension, harmful people.297  Surprisingly, a rigorous examination of the
Lochner opinion suggests potential sympathy with such global views. 
Specifically, while examining the police power and its application to the state of
New York’s legislation, the Lochner majority wrote:

There are, however, certain powers existing in the sovereignty of each
state in the Union, somewhat vaguely termed police powers, the exact
description and limitation of which have not been attempted by the
courts.  Those powers, broadly stated, and without, at present, any
attempt at a more specific limitation, relate to the safety, health, morals,
and general welfare of the public.298

One need not surrender to the language and grammar of postmodernism nor lapse
into a solipsistic spasm in order to understand that relatively minor shifts in
factual assumptions regarding the limits of the state or federal police power can

291. Susan Haack, Pragmatism, Law and Morality: The Lessons of Buck v. Bell, 3 EUROPEAN
J. OF PRAGMATISM AND PHILOSOPHY, 65, 69-70 (2011), available at http://ssrn.com/abstract=
2116371 (describing Holmes’ views).

292. See, e.g., Richard H. Pildes, The Inherent Authoritarianism in Democratic Regimes, in
OUT OF AND INTO AUTHORITARIAN LAW 125-151 (Andras Sajo ed., 2003) (showing that
authoritarianism is “an inherent structural tendency of democratic regimes”).  

293. See generally Hutchison, Waging War on the “Unfit,” supra note 11, at 1-46.
294. See generally id. at 21. 
295. See generally id. at 22.
296. See generally id.
297. See generally id.
298. Lochner v. New York, 198 U.S. 45, 53 (1905).



456 INDIANA LAW REVIEW [Vol. 47:421

produce seismic shifts in adjudicatory doctrine.299  And if the Constitution is
living, then neither living originalism300 nor the text of the Constitution itself
could save Carrie Buck, Buck v. Bell’s tragic victim, or anyone else from
perdition driven by Mankind’s quest to attain perfection.  Perfection, on this
view, is achievable by an ever-expanding regulatory state that operates under a
banner declaring that resistance to progress is pointless.301 

Neither modern critics nor revisionist defenders of Lochnerian jurisprudence
have adequately explained why state and federal police power302 occurred
simultaneously with the Lochner epoch.  Correlatively, the Supreme Court, both
before and during the Lochner era, recognized the “federal police power,”
analogous to the powers of state legislatures,303 to promote the health, safety,
morality and general welfare of the nation,304 as well as the states’ police power
to limit the hours worked by female employees305 on grounds that women were
inferior and, therefore, in need of protection.306  Lund and McGinnis confirm that
the law invalidated by the Lochner majority was no more paternalistic than the
public health measures approved both before and after the Lochner decision.307 
Indeed, it is possible that neither the Lochner majority nor the dissent squares
with anything resembling the original understanding of due process, an outcome
that Chapman and McConnell explain in some depth.308  First, they show that the
New York enactment failed because it was not a “necessary or appropriate” way
to affect the state’s interest in protecting the health of its citizens, and, therefore,
was not a valid exercise of its police powers,309 which implies that a more modest
interference with liberty would have been acceptable to the Court.  Second,

299. See Suzanna Sherry, Foundational Facts and Doctrinal Change, 2011 U. ILL. L. REV.
145, 145 (focusing largely on doctrinal shifts within the judiciary).

300. JACK M. BALKIN, LIVING ORIGINALISM 154-55 (2011) (discussing commerce as
intercourse, which enables the Supreme Court to work around older cases without overruling them
explicitly as part of the federal courts’ evolutionary form of common law decision-making that
enables human progress).

301. See EDWIN BLACK, WAR AGAINST THE WEAK: EUGENICS AND AMERICA’S CAMPAIGN TO
CREATE A MASTER RACE 9 (2003) (describing mankind’s quest for perfection).

302. See, e g., Sawyer, supra note 37, at 67 (citing Hoke v. United States, 227 U.S. 308
(1913); Hipolite Egg Co., v. United States, 220 U.S. 45 (1911); Champion v. Ames, 188 U.S. 32
(1903)). 

303. Cushman, Doctrinal Synergies, supra note 118, at 241.
304. See id. (Hammer allowed Congress to exercise its federal police power by prohibiting the

interstate shipment of harmful goods, but not items that were in themselves harmless, like the
products of child labor).

305. See, e. g., Muller v. Oregon, 208 U. S. 412 (1908).
306. EPSTEIN, supra note 117, at 90-93.
307. Lund & McGinnis, supra note 97, at 1564 (showing that all of the Justices who

participated in the Lochner decision appeared to agree that the legislature was “perfectly free to
regulate the hours of bakers in order to protect their health”).

308. Chapman & McConnell, supra note 28, at 1792-94.
309. Id. at 1793.



2014] REVISING THE REVISIONISTS? 457

Chapman and McConnell show that “[t]hree of the Justices would have watered
down this means-ends analysis, making it easier for the state to comply, and one
Justice would have invalidated the statute only if it interfered with what a
‘rational and fair man’ would have recognized as a ‘fundamental’ right,”310 and
accordingly, “[n]one of these opinions squares with anything resembling the
original understanding of due process, whether in 1791 or in 1868.”311  Third, the
liberty of contract doctrine “on which the majority relies is not set forth anywhere
in the Constitution and contradicts the uniform understanding from the Founding
era through Reconstruction that legislatures have the authority to pass prospective
and general legislation affecting contracts.”312  Fourth, Chapman and McConnell
assert that “[t]he idea that individuals possess a freedom to contract with other
persons to do anything they would be permitted to do individually may be
attractive in the abstract (or not), but it does not appear anywhere in the
Constitution.”313  Fifth, they maintain that liberty of contract “has no basis in the
Due Process Clause, which allows deprivations of natural liberty so long as they
are achieved with due process of law, meaning proper enactment by the
legislature and proper enforcement by the courts.”314  Finally, they show that “the
Court’s limitation of legitimate state legislative authority to ‘police powers’ has
no textual basis.”315  If Chapman and McConnell’s bracing analysis is accurate,
it is doubtful that Lochner provides a secure plinth to advance liberty.  Rather, it
provides a rather limp instrument that is unable to reliably deny states the power
to enact and enforce paternalism borne of Progressive presumptions or any other
forms of majoritarianism.316  Equally ominous, Hammer’s harmless items
limitation on the federal police power and the Commerce Clause can be seen not
as part of an effort to advance liberty, but rather as part of a deliberate strategy
to advance paternalism within Knoxian limits.  This conclusion operates
consistently with the views of “living originalist” scholars who see commerce as
intercourse, and enables the Supreme Court to work around older cases without
necessarily overruling them explicitly as part of the federal courts’ evolutionary
form of common law decision-making that facilitates human progress.317 

Given this record, Professor Mayer’s defense of the inherent value of
Lochner, which incorporates his careful explication of the difference between
liberty of contract jurisprudence and laissez-faire ideology, fails to consider the
probability that the doctrine developed by Lochner and its progeny has always

310. Id.
311. Id.
312. Id.
313. Id.
314. Id. at 1793-94.
315. Id. at 1794.
316. Id. (arguing that the Federal Constitution does not purport to limit the powers of state

government except in specific ways and concluding that the Tenth Amendment guarantees that all
powers not denied to the states by the Constitution are reserved to them, an understanding that
contradicts the Lochner majority opinion).

317. BALKIN, supra note 300, at 154-55.



458 INDIANA LAW REVIEW [Vol. 47:421

been incapable of securing the constitutional right of liberty. Contrary to Mayer’s
claims, skeptical analysis shows that Lochner cannot be separated from a
movement that created statutes consistent with the paternalistic and collectivist
threads that ran deeply through the Anglo-American common law tradition during
the middle of the nineteenth century in Great Britain.318  However contested our
understanding of Lochner may be,319 the Lochner Court’s moderate commitment
to paternalism can be seen as part of process that diminished320 Americans’ liberty
interests and culminated in the contemporary contention that no limits exist on the
federal government’s power to impose its will on individuals who engage in
“harmful” inactivity within the nation’s healthcare market.321  Notwithstanding
its revisionist defenders, the Lochner decision, which evinced a moderate
commitment to liberty and a rather spacious commitment to paternalism,322 can
be convincingly separated from classical Liberalism and the natural rights
tradition; which necessitated limited government in order to protect individual
rights and liberties.323  

Equally plausible is the idea that Lochner, as the life and times of Philander
Knox demonstrate, cannot be fully distinguished from the normative views of
Progressives who justified an expansion in the size and scope of government as
the inevitable consequence of evolution.  Premised on the proposition that society
was one indivisible whole that left no room for individuals or firms who declined
to comply or otherwise consistently evolve with the needs of a modern and
interconnected nation.324  Positing the regulatory state as an ontology of necessity
and the prerogative of scientism, this embryonic cycle gave birth to a predatory
process that repudiated classical liberalism and liberty of contract as static relics.
Thus understood, it appears that Lochner and Hammer were less concerned with
advancing liberty and more concerned with placing speed limits on an already
advancing paternalism.

Whether swift or slow, paternalism’s advance has been richly described by
John Gray, who indicates that the modern state now acts as an instrument of

318. MAYER, supra note 1, at 55 (critiquing this approach).
319. For a discussion of contrasting explanations of the Lochner Court, see, e.g., Sawyer,

supra note 37, at 68-70.
320. Id. (suggesting that the Lochner Court was part of a process that suggested few limits on

government power).
321. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (noting that the

federal government asserts that there is no temporal limit in the Commerce Clause for its power to
dictate the conduct of an individual today because of a “prophesied future activity”).

322. See, e.g., Lund & McGinnis, supra note 97, at 1564 (showing that all of the Justices who
participated in the Lochner decision appeared to agree that the legislature was perfectly free to
regulate the hours of bakers in order to protect their health).

323. Harry G. Hutchison, Employee Free Choice or Employee Forged Choice? Race in the
Mirror of Exclusionary Hierarchy, 15 MICH. J. RACE & L. 369, 381 (2010) [hereinafter Hutchison,
Employee Free Choice].

324. Id.



2014] REVISING THE REVISIONISTS? 459

oppression rather than as an umpire enforcing the rules of civil association.325 
Reflecting the cultural forces that were set in motion during the latter part of the
nineteenth century, forces that ignited the Progressive Era as a tendentious effort
to rid the nation of harmful products and people, as well as “destructive”
competition, the evolution of this highly symbiotic process is explainable:
government power expands in part because of the vast assets it already controls
or owns, but also because no private or corporate asset is safe from invasion or
confiscation by the state.326  This symbiosis correlates with state and federal
legislative behavior, which can be best understood as the quest for the
maximization of individual utilities by politicians rather than the search for
phantom public interest.327  Far from favoring a Madisonian conception of
equality as the basis for every law,328 the promulgation of legal and regulatory
innovation has now become an all-encompassing activity that diminishes liberty
and enables highly organized groups to hijack the political process for their own
benefit.329

History shows that this move (i.e., the initiation of paternal process that aims
to eliminate all sorts of harms) appears to be the central moral and cultural
tendency of modern democratic societies.330  Reflecting a corset of cultural and
social constraints that diminished previously dominant notions associated with
an atomistic classical political economy331 attached to the natural rights tradition,
the liberty of contract doctrine, as transmuted and vitiated by moderate or
immoderate Progressives during the period from 1902 to 1920, was incapable of
stopping this evolving progression.  

Skeptically considered, Lochner, Hammer, and other similar cases signaled
the inevitability of “Progress,” as well as the contention that government has a
duty to protect both the nation and individuals from the risks associated with
harmful products and people, and from the threats posed by collective action
problems arising in an increasingly integrated economy.  Taken together, Lochner
era cases accommodated the nation’s response to such fears while conforming to
Philander Knox’s belief that in a “survival of the fittest” world, resistance to the
forces of progress was futile.332  Despite Mayer’s capable research, it is likely that
his comprehensive defense of liberty of contract jurisprudence is diminished by
analytical gaps that fail to satisfactorily account for the history and potency of the
social, cultural, and quasi-scientific currents permeating the nation before, during,

325. GRAY, supra note 277, at 12.
326. Id.
327. DANIEL T. RODGERS, AGE OF FRACTURE 64 (2011). 
328. MAYER, supra note 1, at 28.
329. GRAY, supra note 277, at 12.
330. Id. at 11-12.
331. See, e.g., RODGERS, supra note 327, at 45 (cultural and social developments conspired

to constrain previously dominant notions associated with an atomistic and individualist classical
political economy).

332. Sawyer, supra note 37, at 26.



460 INDIANA LAW REVIEW [Vol. 47:421

and after the onset of the Lochner era.333  Naturally, these currents destabilized
the influence of laissez-faire economics, advanced Social Darwinism, moderated
and then robbed the effectiveness of liberty of contract, and shrunk individual
liberty.  This remains true despite David Bernstein’s contention that, in the 1920s,
the Court became more aggressive about reviewing government regulations in the
economic sphere, as the Justices “began to acknowledge the broader libertarian
implications of Lochner and other liberty of contracts cases” as an enforceable
limit on government authority.334 

While proof of cause and effect remains complex, Mayer’s shortcomings
regarding the potency of the social and cultural currents saturating the nation lead
to other shortcomings.  Toward the end of his book, Mayer appears to confirm
public choice theory’s key insight that people and groups act to further their own
private interest rather than the public interest, whether they do so publicly or
privately.335  Ratifying John Gray’s incisive analysis, and implicating Warren
Samuels’s emphasis on the irreducible embeddedness of all economic processes
in the political and legal nexus,336 Mayer inspects United States v. Carolene
Products Co.,337 a decision that has occupied scholars for decades.  This decision
upheld the federal Filled Milk Act of 1923, a statute that prohibited the interstate
shipment of all skimmed milk compounded with any fat or oil aside from milk
fat.338  Mayer shows that this decision “was ‘an utterly unprincipled example of
special interest legislation’ that mainly targeted skimmed milk laced with coconut
oil, which was cheaper than canned milk containing milk fat.”339  Since the major
force behind the act was a privileged segment of the dairy industry that sought an
economic advantage over its less privileged competitors, the legacy of Carolene
Products is deepened by noting its reification of the primacy of special interest
group politics.340  Mayer reacts to this development by stating that Carolene
Products, along with its Footnote Four dictum protecting certain rights and
minorities from discrimination, establishes a double standard.341  Per Mayer’s
account, the double standard signifies that “the Court . . . gives less constitutional

333. See, e.g., RODGERS, supra note 327, at 4 (“In contrast to mid-nineteenth-century notions
of the self as a free-standing, autonomous production of its own will and ambition, twentieth-
century social thinkers had encircled the self with wider and wider rings of relations, structures,
contexts, and institutions.”).

334. BERNSTEIN, REHABILITATING LOCHNER, supra note 39, at 5.
335. MAYER, supra note 1, at 110-11 (inspecting United States v. Carolene Prods., 304 U.S.

144 (1938)).  Carolene Products upheld the Federal Filled Milk Act of 1923, a law mainly targeting
skimmed milk laced with coconut oil, which was cheaper than canned milk containing milk and
hence the law can be seen as favoring special interest in a process that verifies public choice
theory’s insights.

336. BOETTKE, supra note 2, at 109 (quoting Samuels).
337. 304 U.S. 144 (1938).
338. MAYER, supra note 1, at 110.
339. Id.
340. Id.
341. Id. at 111.



2014] REVISING THE REVISIONISTS? 461

protection to economic liberty and property rights—the rights formerly protected
by its Lochner-era liberty-of-contract jurisprudence—than it gives to other
rights.”342  Given the special interest group legacy of Carolene Products, and in
light of the fact that disadvantaged groups have less access to power and
influence,343 it is possible to dispute this contention on grounds that what the
decision grants in Footnote Four, it takes away within the framework and legacy
of the decision itself.  Rather than truthfully creating a double standard within the
domain of substantive due process jurisprudence,344 which blocks any legislation
disfavoring members of minority groups, Carolene Products, in practice, favors
entrenched groups at the expense of African Americans and other outsiders345
“[s]o long as the government’s action bears some connection to a minimally
rational economic policy . . . .”346 

A rich harvest of toxic fruit has been produced in the pursuit of “Progress”
and the Public Good.  Eschewing the “harmful” and surrendering to a salvific
belief in expertise and social science as instruments of social control, this harvest
signifies paternalism’s deification.  The police power, which is amply armed with
language from Lochner, Hammer, or other cases from the liberty of contract
canon, provides the Supreme Court with a ready justification for minimal
scrutiny:  the protection of the safety, morals, health and general welfare of the
public.347  Although it may be doubtful that the federal government, as a regime
of enumerated powers, ever had residuary police powers,348  Sawyer shows that
a consensus emerged in 1906 regarding freedom of contract and the Commerce
Clause, implying that if a regulation was a legitimate adjustment of interstate
commerce, then, by definition, it was not a violation of freedom of contract.349 
Equally true, state regulations that advanced police power purposes—health,
safety, morality, or general welfare—were legitimate,350 which suggests, but does
not necessarily prove, that substantive due process and liberty of contract were

342. Id.
343. Harry G. Hutchison, Racial Exclusion in the Mirror of New Deal Responses to the Great

Crash, NEXUS: 15 CHAPMAN’S J. L. & POL’Y 5, 13 (2009-2010) [hereinafter Hutchison, Racial
Exclusion] (observing that government intervention disfavors the individuals and groups that lack
political and economic clout).

344.  See MAYER, supra note 1, at 111 (arguing that Carolene Products created a double
standard in the Supreme Court’s modern substantive due process jurisprudence).

345. See Hutchison, Employee Free Choice, supra note 323, at 396-405 (cataloguing statutes
and their consequences on African Americans during the New Deal, a process ultimately approved
by the Supreme Court).

346. MAYER, supra note 1, at 110 (citing Timothy Sandefur).
347. Lochner v. New York, 198 U.S. 45, 54 (1905).
348. Cushman, Doctrinal Synergies, supra note 118, at 241 (showing that Congress did

possess a power analogous to the police powers of the state legislatures, enabling it to protect the
free flow of interstate commerce, which may provide a basis for interfering with the contractual
relations of businesses that are affected with the public interest).

349. Sawyer, supra note 37, at 47-48. 
350. Id. at 48.



462 INDIANA LAW REVIEW [Vol. 47:421

conceptualized as moderate in theory but rather feckless in practice.  This is so
despite the efforts of Lochner’s ablest defender, David Bernstein, who suggested
“that the decision rested on sound principles of economics and liberty, that
concepts of natural rights and liberty of contract had deep roots in political
theory, and that the bakers’ hours legislation struck down in the case was a
disguised scheme to favor entrenched and well-heeled special interests.”351 
Although conventional attacks on the underlying ideology of the Lochner
decision may well be unfounded,352 and while the outcome of the Court’s
adjudication of economic liberty might well have been changed by the discovery
of a robust conception of liberty in the text of the Constitution, today, the mere
assertion that the subject relates even remotely to any of the categories of the
police power pantheon, or alternatively implicates the Commerce Clause, appears
to legitimate a statutory enactment, no matter how noxious the enactment.353 
Although it cannot be argued that any one case alone ensured Progressivism’s
questionable achievements, and while history is inherently agnostic about the
soundness of Lochner354 and Hammer, it is doubtful that either case offers a moral
principle that would necessarily inhibit the advance of majoritarian paternalism. 
Taken together, this tidy paradigm confirms Ralph Inge’s remarkable intuition
that when defenders of liberty marry the regulatory spirit of the age, they
unavoidably become widowers.355  Properly considered, to enshrine the harmless
item limit within the doctrine of liberty of contract is to advance the culturally
potent goals of the regulatory state rather than the rediscovery of a lost
constitutional right.  The widespread acceptance of this Knoxian approach signals
that to the extent that liberty of contract is traceable to Lochner and Lochner-era
cases, this doctrine spent its force ab initio.

Because Americans live in a late modern, post-secular world characterized
by collective and individuated narcissism reinforced by solipsism,356 it would be
naïve to believe that any single book could bridge the differences in tolerable
opinion about deeply contestable matters such as the meaning, scope, and
duration of liberty of contract jurisprudence.  It is doubtful that substantive due
process jurisprudence can be resuscitated by its subversive defense on the part of
revisionist and originalist scholars; and this is true regardless of whether or not
substantive due process is seen as legitimate or if originalism is seen as

351. Chapman & McConnell, supra note 28, at 1794.
352. Id.
353. See, e.g., Brazier Constr. Co. v. Chao, 2002 U.S. Dist. LEXIS 28523 (D.D.C. Apr. 26,

2002) (upholding the Davis-Bacon Act, an act designed to protect white males against a claim that
it was passed with discriminatory intent or purpose in violation of the Equal Protection guarantees
of the Constitution.  In reality, the Davis-Bacon Act and its progeny honor the legacy of Robert
Bacon, co-author of the Act, who denied anti-African American animus but made clear his
discomfort with “defective” workers taking jobs that rightfully belong to white union men); see also
Hutchison, Employee Free Choice, supra note 323, at 412-13. 

354. BERNSTEIN, REHABILITATING LOCHNER, supra note 39, at 6.
355. DOUTHAT, supra note 29, at 106.
356. Id. at 234-35, 240.



2014] REVISING THE REVISIONISTS? 463

wrongheaded.357  Consistent with this deduction, this Article maintains that
Professor Mayer’s endeavor to rediscover a “lost constitutional right” is not fully
tenable.  Although it is true that disadvantaged individuals and groups would
have benefited marginally had the Lochnerian liberty of contract doctrine been
practiced consistently, at the end of the day it is probable that the size and scope
of government would have approached its current apex predicated on the need to
control and regulate an increasingly interconnected country.  The liberty of
contract doctrine, either in the hands of the Lochner Court majority or guided by
the “moderate progressive” preferences of Philander Knox, appears to be
inherently insufficient to preclude the instantiation of the regulatory state and its
consequent subordination of human liberty to the paternal, if not the maternal,
impulse.

The need to protect vulnerable people and markets along with the desire to
ensure the health, safety, morals, and general welfare of society generates a
culturally persuasive approach that glorifies Leviathan and shelters the search for
economic and ideological rents from thorough scrutiny.  Ably assisted by
flexible, if not living language regarding both the notion of harm and the text of
the Constitution, the Supreme Court has had little difficulty in legitimating the
regulatory state.  This maneuver is richly represented by the New Deal and its
dubious achievements.358  Any sustained inspection of the New Deal and its
progeny reveals a paradox: the attempt to attain social justice through government
planning and regulation has often produced the opposite result.359  This irony
appears to be the result of modern humans’ quest for organizational predictability,
predicated on the presumptive viability of social science360 and its correlative
conceit, sociological jurisprudence.  The search for order and certainty as a cure
for human insecurity361 creates a demand not only for law, but a demand for more
precise law.362  Since organizational success and predictability exclude one
another, the project of creating a predictable society through endless quasi-
scientific efforts by government bureaucrats is doomed by the very facts of social
life.363  This is so because humans respond in unexpected ways to new regulatory
thrusts, thus rendering organizational success based on bureaucratic
managerialism and Progressivism as exemplary elements of a totalizing ideology
that describes modern democratic states as nothing less than a factual and moral
fiction.364 

While it is true that after the death camps, the Gulag, and the New Deal slave

357. Chapman & McConnell, supra note 28, at 1675.
358. See, e.g., Hutchison, Racial Exclusion, supra note 343, at 5-13.
359. Id. at 8 (discussing Goldberg’s analysis).
360. ALASDAIR MACINTYRE, AFTER VIRTUE 88-108 (2007) (discussing the human search for

predictability through social science generalizations).
361. Frohnen, supra note 15, at 536.
362. Id. at 537.
363. MACINTYRE, supra note 360, at 106.
364. Id. at 106-07.



464 INDIANA LAW REVIEW [Vol. 47:421

camps,365 it was harder to credit the naïve Progressive belief that the modern
scientistic age, with its deadening focus on technique,366 represented a long march
toward enlightenment and peace;367 and, while the consistent enforcement of the
substantive due process doctrine had, and perhaps still has the potential to curb
the expansion of the regulatory state, the pregnant capacity of this construct has
gone unrealized.  Because the Lochner Court, along with moderate Progressives
of the day, was prepared to embrace as virtuous of a version of paternalism that
differs only in degree from the state of New York’s capitulation to special interest
groups’ pleadings in the form of legislation designed to favor large bakeries at the
expense of small ones,368 it is inconceivable that the rediscovery of a lost
constitutional right purportedly embedded in this case could reliably thwart clear
and present dangers to liberty.  These risks have materialized in a sharp expansion
of the regulatory state, a process that demonstrates that the belief in social control,
as advanced by Philander Knox and embodied in the notion of expertise, is a
masquerade.369 

CONCLUSION

Professor Mayer offers elegant arguments for rehabilitating liberty of contract
that deserve admiration rather than obloquy.  However, a conscientious
assessment of the language and grammar of Lochner, Champion, Hipolite,
Hammer, and Hoke, as well as a portfolio of cases decided during the period from
1897 to1937, in combination with an assessment of the life and times of Attorney
General-turned-Senator Philander Knox, raise doubts regarding the success of this
project.  This Article’s examination of Mayer’s project suggests that neither the
Court nor the nation, at least since the latter part of the nineteenth-century, was
prepared to reliably accept a modest conception of liberty of contract
jurisprudence as a constraint on the government’s reach.  Instead, both the Court
and the nation were primed to embrace majoritarian paternalism all the way
down.  Paternalism and the ever-growing modern state were grounded on legal
positivism and succeeding forms of jurisprudence, which combined to favor the
idea “that we cannot have law without an underived authority.  Law, on this view,
must come from somewhere and is in its nature a command, so a commander

365. See RISA L. GOLUBOFF, THE LOST PROMISE OF CIVIL RIGHTS 1-2 (2007) (richly
documenting the attempts by African American workers to escape the virtual slaves camps that
were established with the approval of the federal government during the early 1940s).

366. BOETTKE, supra note 2, at 176-77.
367. DOUTHAT, supra note 29, at 23.
368. See MAXWELL L. STEARNS & TODD J. ZYWICKI, PUBLIC CHOICE CONCEPTS AND

APPLICATIONS IN LAW 80 (2009) (suggesting that the disputed regulation at issue was designed for
bakers who worked at the larger industrial bakeries that already complied with the various state
safety and hours regulations, as reflected in the New York law, at the expense of small, often
immigrant-owned bakeries that did not).

369. MACINTYRE, supra note 360, at 107.



2014] REVISING THE REVISIONISTS? 465

must issue the laws and to do so must be in a position subservient to no one,”370
or, by extension, no principle.  Representing an immense concentration of power
in the state, this move toward positivism has fatally undermined notions of liberty
and natural law that might otherwise limit the power of government.371 

This trend has been hastened by the increasing inability of Americans to
restrain their appetite for government-supplied goods and services, a development
reflected in the nation’s bloated public debt.  This trend creates an immodest if
not degenerate domestic government at both the state and federal levels “that tries
to be all things to all people no matter which political party is in power . . . .”372 
This progression has been encouraged by partisans who oscillate between
circulating apocalyptic fears regarding harmful people and products and offering
messianic delusions to save us from ourselves without the need for either self-
control or personal sacrifice.373  Rightly deconstructed, the nation’s political and
juridical enterprise, mirroring the moderately Progressive architecture of Knox
and the immoderate ideology of Holmes, shields society from the conclusion that
no human institution can protect us from the unpredictability or the inescapable
disappointments of life lived in the shadow of hope and injustice.

Consequentially, this process evokes Orwell’s admonition that saints should
be judged guilty until they are proven innocent,374 which supplies a suitable
metaphor for measuring judges, politicians, citizens, and claims of constitutional
rights in our current epoch, an era that unfurls under a banner offering new threats
to human contingency, mortality, and the possibility of eternity.  Until citizens,
politicians, and judges display modesty regarding the nation’s capacity to solve
the human problem and immodesty regarding an individual’s right and
responsibility to solve her own difficulties in voluntary communion with others,
it remains doubtful that the rediscovery of liberty of contract, as a lost
constitutional right, can become anything but an attractive anachronism.

370. Frohnen, supra note 15, at 538.
371. Id. at 529.
372. DOUTHAT, supra note 29, at 5.
373. Id.
374. Id. at 229 (citing Orwell).