Publication Date
3-2009
Document Type
Article
Abstract
Perhaps no aspect of modem American constitutional law is as misunderstood as so-called substantive due process, and no period in American constitutional history is as misunderstood as the early twentieth century, when the United States Supreme Court applied the Due Process Clauses of the Constitution substantively to protect a right known as "liberty of contract." For a forty-year period known as the "Lochner Era" for its best-known Supreme Court decision, the Court declared unconstitutional a variety of state and federal laws that abridged a fundamental right of "liberty of contract" protected under the Due Process Clauses of the Fifth and Fourteenth Amendments. The Court's protection of liberty of contract during the early twentieth century is frequently described as "economic substantive due process," both to emphasize the most famous line of Lochner Era decisions-those protecting economic liberty against labor legislation-and to distinguish the Court's application of substantive due process during that era from its use in the modern, post-New Deal Era.
Recommended Citation
Mayer, David N.
(2009)
"Substantive Due Process Rediscovered: The Rise and Fall of Liberty of Contract,"
Mercer Law Review: Vol. 60:
No.
2, Article 4.
Available at:
https://digitalcommons.law.mercer.edu/jour_mlr/vol60/iss2/4