Jump to ContentJump to Main Navigation
The Democratic ConstitutionExperimentalism and Interpretation$
Users without a subscription are not able to see the full content.

Brian E. Butler

Print publication date: 2017

Print ISBN-13: 9780226474502

Published to Chicago Scholarship Online: January 2018

DOI: 10.7208/chicago/9780226474649.001.0001

Show Summary Details
Page of

PRINTED FROM CHICAGO SCHOLARSHIP ONLINE (www.chicago.universitypressscholarship.com). (c) Copyright University of Chicago Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in CHSO for personal use.date: 24 May 2022



(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

Chicago Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs, and if you can't find the answer there, please contact us.