How Pro-Market Is the Constitution? A Look Back at the Lochner Era | Continuing Legal Education

with  Dr. Robert Wyllie

How Pro-Market Is the Constitution? A Look Back at the Lochner Era | Continuing Legal Education

Where and when

June 1, 2024 —
8:30 AM - Noon

340 Samaritan Avenue, Ashland, OH 44805

Schar College of Education, Room 203

Space is limited, so register today! Registration is $50.

Approved by the Supreme Court of Ohio Commission on Continuing Legal Education for 3.00 General hours.



Dr. Robert Wyllie: Assistant Professor of Political Science at Ashland University


Course Description

“[A] constitution is not intended to embody a particular economic theory,” Justice Oliver Wendell Holmes asserts in his famous dissenting opinion in Lochner v. New York (1905). On the other hand, at the Constitutional Convention, most of the Framers regarded the protection of private property rights as the first duty of government, and they went on to create the largest contiguous free trade zone in the world. So what, if any, kind of economic order does the U.S. Constitution create? We shall investigate this question by looking back to the Lochner era, when the Supreme Court consistently struck down state-level economic regulations on the view that due process under Amendments V and XIV offers federal protection for individuals’ freedom of contract. Is Lochner v. New York an example of conservative, pro-market activist judges legislating from the bench, as Justice Holmes implies? Or was the majority opinion part of a good-faith effort to carry forward a constitutional tradition going back to Alexander Hamilton and the founding of our “commercial republic”? Lochner and its legacy raises fascinating questions at the intersection of economics and the law, and offers us an opportunity to reexamine the history of American constitutionalism and jurisprudence from a fresh vantage point.

Session 1 – “The Day Is Gone”: The Rise and Fall of Lochner-era Substantive Due Process

Session 2 – Are Economic Freedoms “Deeply Rooted in this Nation’s History and Tradition?”

Readings will be emailed to participants after registration for the course.

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