Paul Kens, in his book Lochner v. New York: Economic Regulation on
Trial, makes the case that Lochner, and the Lochner era of the Supreme
Court, forms the foundation of ideological battles between economics and
personal liberty and rights. The court found, in that case, that the state
of New York had violated due process and the "right of contract between
employers and employees." (Kens, 1998)
That was part and parcel of a concept of the legal system Kens said
was employed to good effect as far as creating an economic powerhouse.
The most important function of the American legal system in the
nineteenth century was to foster the growth of an ever-expanding
national economy. The federal judiciary in the late nineteenth
century participated in this project by using the powers that
the 14th Amendment gave it to protect the economic rights of
American citizens. The most important of these rights was the
right to enter freely into contracts. Freedom of contract
allowed Americans to use efficiently the various factors of
production to create an industrial economy that was the most
productive in the world by the middle of the twentieth century.
The successful creation of this economic juggernaut validates
the turn-of-the-century court's decision to use the 14th
Amendment to protect economic rights at the expense of other
civil and individual rights. (Kens, 1998)
The editors of the series in which this Kens' book appears also
noted, however, that the case raised a "host of significant questions
regarding the impetus of state legislatures to enter the workplace" (Kens,
1998) and institute regulations of various sorts, quandaries which continue
The philosophies underlying the Supreme Court's decision in Lochner
v....