Russell and Duenes

The Problem with Lochner v. New York is the Problem with Roe v. Wade

with 2 comments

In Lochner v. New York, the Supreme Court held that the 14th Amendment’s guarantee that no State shall “deprive any person of life, liberty, or property without due process of law,” included “[t]he right to purchase or to sell labor . . . unless there are circumstances which exclude the right.” In other words, according to the Court, the Constitution guarantees “the right of contract between employer and employees, concerning the number of hours in which the latter may labor.” Thus, “[t]he general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution.” Of course, in guaranteeing this “freedom of contract,” the Court did not appeal to anything actually written in the Constitution. Rather, the Court believed that this right was something implicitly protected by the Due Process Clause, and thus, did not need to be spelled out in the actual text of the Constitution. This is Substantive Due Process.

Yet Lochner is no longer binding law. It’s holding has subsequently been overruled, and, as my Constitutional Law casebook states: “Notwithstanding the support of a few hearty commentators, Lochner has been subject to virtually universal condemnation.” Yet my textbook goes on to pose the question: “But what exactly was wrong with the decision and the approach that it embodied?” And here’s where Roe v. Wade comes in.

In Roe, the Court, in finding a constitutional right to abortion through all nine months of pregnancy, used the exact same approach that the Court used in finding a constitutional right to freedom of contract in Lochner. There’s absolutely no difference whatsoever, for neither the words “freedom of contract,” nor “abortion,” nor “right to privacy” are found anywhere in the Constitution. So why the universal condemnation of Lochner and, at least among political liberals, the near universal approval of Roe? I’m left to conclude that the only difference is that, modern liberals like unfettered access to abortion, but they don’t like laissez-faire capitalism. It’s as simple as that, for there is absolutely no constitutional grounds for holding one to be a right and the other not.

But the larger problem here is the problem of standards. As Justice Thomas points out in his concurring opinion in McDonald v. City of Chicago, “[T]he Court has determined that the Due Process Clause [not only incorporates ‘fundamental’ rights mentioned in the Bill of Rights but also] applies rights against the States that are not mentioned in the Constitution at all…All of this is legal fiction…Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not.” (emphasis mine). That’s it in a nutshell. The Court wanted to find a right to abortion, and they don’t want to find a right to freedom of contract. They can jazz it up with a bunch of legal mumbo-jumbo, and bogus ramblings about “reproductive freedom,” and they have, but ultimately it comes down to raw judicial will.

An employer paying an employee $4 an hour because that’s the wage the employee freely agreed to work for? Forget about it! Mother’s having their own babies put to death? OK.



Written by Michael Duenes

September 6, 2012 at 7:38 pm

2 Responses

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  1. Roe doesn’t find a constitutional right to abortion through all nine months of pregnancy. There is total autonomy in the first trimester, an exception for the mother’s life in the second, and it’s up to the states for the third.


    March 7, 2017 at 8:06 pm

    • I’m afraid you haven’t read Roe. Thanks.

      Michael Duenes

      April 25, 2017 at 4:00 am

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