Neo-Lochnerism triggers democratic backsliding by rendering government welfare unconstitutional

Beyond the musings of Thiel and Hoppe, libertarian legal scholars are pushing to use the courts to limit democratic sovereignty over the economy. As Brian Beutler reported in the New Republic last year, conservative legal theory is increasingly being influenced by the work of Georgetown law professor Randy Barnett, a radical libertarian who wants to revive the legal tradition found in cases like Lochner v. New York (1905), which would render much government welfare policy since the late 1930s as unconstitutional.

Lochnerism is a fundamentally anti-democratic legal doctrine rooted in the idea that property rights should override laws made by democratically elected officials. As University of Michigan legal scholar Sam Bagenstos notes, a full embrace of Lochnerism would scuttle Obamacare and much more: “Laws guaranteeing workers the right to join a union without being fired, and the right to earn a minimum wage and receive overtime if working more than 40 hours a week, laws protecting worker safety, and laws protecting workers and customers against discrimination based on race or other protected statuses, just for starters.” Just for starters.