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(p.105) Chapter Five Lochnering
The Democratic Constitution
Brian E. Butler
University of Chicago Press

In this chapter the Key United States Supreme Court antiprecedent decision Lochner v. New York is analyzed. “Lochnering” is, in US constitutional law an almost universal term of derision. For instance, in dissent, Roberts critiques the Obergefell decision by showing how he believes it replicates the mistakes of Lochner. Via critical literature on the case, it is argued in this chapter that Lochner highlights how conceptions of law and democracy inextricably implicate each other. The theories of Richard Epstein and Ronald Dworkin are emphasized. Ultimately, the conclusion is that the jurisprudential theories of both Ronald Dworkin and Richard Epstein replicate the undesirable antidemocratic features of Lochner. The important dissents in Lochner written by Holmes and Harlan, on the other hand, exemplify democratic virtues that foreshadow the jurisprudence of democratic experimentalism.

Keywords:   Lochner, lochnering, Epstein, Dworkin, Holmes, Harlan, constitutional law, democracy

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