San Diego Law Review

Article Title

Rehabilitating Lochner

Library of Congress Authority File


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This Article examines the background and debates on the framing of the fourteenth amendment, in light of the Supreme Court's decision in Lochner v. New York. The author focuses on the framing of section 1 of the fourteenth amendment, as well as the Civil Rights Act of 1866, and argues that the Thirty-ninth Congress, which framed the amendment, was strongly dedicated to securing the material rights. He further argues that the Framers regarded due process as a general guarantee for natural and fundamental rights, which included liberty of contract and of private ownership, yet, at the time the amendment was framed and ratified, and for some time thereafter, a majority of the U.S. Supreme Court regarded due process as safeguarding vested property interests, but not contractual freedom. The author argues that, by the time of the Lochner case, the Court had erased this distinction and secured liberty of contract, and that this development was consistent with the Framers' meaning of due process.

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