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Boston University Law School




For this symposium on Lochner, I examined the jurisprudence of the man commonly thought to be the Lochner majority's fiercest foe, Justice Oliver Wendell Holmes, Jr. Holmes wrote the famous dissent in Lochner and other cases of the era. But as Barry Cushman notes in his contribution to this symposium, Holmes joined many a Lochner-era majority in striking down any number of economic regulations. Holmes's Fourteenth Amendment opinions suggest: 1) that, while Holmes advocated a somewhat more pointed rule of deference to legislatures than did most of his colleagues, his language in this respect was far less radical than is often supposed; 2) that, while he expressed disgust at the uses to which the language of "liberty of contract" and the like were put, his own deployment of "takings" language manifested values and concerns very similar to those of the other justices; 3) that, in cases that others might decide by reference to unconstitutional conditions, he seized the chance to vindicate a rather extreme version of state autonomy, not so much because state autonomy was a good idea but simply because the Constitution still commanded judges to recognize some such sphere.

For the most part, Holmes really wasn't interested in defending any particular substantive policies of his own. He was far more interested in exposing the political dimension of constitutional law even as he insisted that a legal dimension survived the politics. The substance of his supposedly anti-Lochner constitutional theory actually put him more or less in the mainstream of the Court, but the rhetoric of his opinions made it forever afterwards an embarrassment - even for a judge - to pretend that the language of law could wholly conceal the political dimensions of the Court.


Boston University School of Law Working Paper Series, Public Law & Legal Theory Working Paper No. 06-38

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