Conservatives are looking for an excuse to adopt neo-Lochnerism, reviving the economic right to freedom of contract and striking down labor regulations

Ergo, Libertarians that still insist on enforcing a liberty to contract may run aground when confronted with age-old questions of employee bargaining power, just as universal healthcare advocates who campaign for a constitutional “right to life” ~ doctrine would risk exposing themselves to charges of hypocrisy on the abortion ~ front. Some Rehabilitationists seem willing to concede this loss and have proactively sought to re-brand its arguments. Sandefur, for example, has long crusaded for the “right to earn a living” as the modern standard for economic liberty,’*® while Bernstein recently unveiled the more wonkish “right to pursue a lawful ~ occupation.”™”

These slogans are packaged as sensible solutions to the oppressive licensing laws currently at issue—the “specific injustices” belying the “categorical abstractions.”?® But, they are mere vessels for the goal of the last thirty years of Lochner revisionism. This is the Trojan Horse through which economic due process enters the city, and it is why Colby and Smith predict that “conservative legal thought will soon gravitate to the view that the Constitution requires judicial protection for economic liberty.”?’ Whether it is initially advanced by the modest proposal of the “rational basis with a bite” concept adopted in the Fifth, Sixth, and Ninth Circuits,** or eventually by the more robust approach of installing Lochner-esque strict scrutiny review for all economic regulation, "[t]he stage is now set for new originalist defenses of economic liberties."

Bernstein inadvertently offers a vision of what the future may hold. "Even if one disagrees with the outcome of some of the liberty of contract era's due process cases," Bernstein argues, "the principle established in those cases-that the police power is not infinitely elastic-is a sound one[.]" 3 32 This jurisprudence, which allowed states to regulate behavior to preserve matters of public health, safety, or morals, 33 is 'preferable to the existing mainstream Progressive alternative emphasizing almost judicial total deference to legislation."33 4

Reviving Lochner means reinstituting the police power as the de facto standard of review for economic regulation, and it requires courts to evaluate laws with a "presumption of liberty' rather than. . . a presumption of deference. "M On its face, this is a reasonable benchmark; the descriptors of health, safety, and morals seem to cover a lot of territory. In reality, they served as a constraint against achieving the sort of reforms that today are so commonplace as to feel institutional. A statute that could not be justified under one of these categories was condemned as a "labor law, pure and simple "'3 6 which could not be deployed to remedy "inequalities of fortune." 3 For this reason, the Court was uniformly hostile towards laws that stipulated wage floors or guaranteed unions the right to organize workers-neither could be externally justified as preserving an inherent communal good.

With rational basis review effectively exiled, what would the police power mean in modern times? Despite Lochner’s infamy having centered around its rejection of a limit upon working hours, maximum working hours regulations would likely pass constitutional muster today due to the abundance of research that connects longer working schedules to health problems.3 But minimum wage laws and bans on yellow-dog contracts lie on shakier ground. What health reasons could justify wage floors, which are enacted specifically to remedy an inequality of fortune? Studies evaluating the efficacy of wage floors in increasing the standard of living often reveal mixed results,'" and some even suggest that they are counterintuitive."

Furthermore, the utility of organized labor is an inherently political debate that would be unlikely to trigger one of the police power's protections. The Lochner Court struck down pro-union laws under the belief that labor unions did not "directly ameliorate working conditions,"34 ' an argument that today's conservatives would likely echo.34 2 In both instances, it is difficult to see a neo-Lochnerist Court ignore the infringement on economic liberty-the liberty that equally guarantees both employer and employee the right to bargain for whatever price and terms they desire 3 4 3-that occurs when a government mandates a certain wage be paid or bans businesses from attaching anti-union terms to its employment contracts.

Less heralded but equally perilous is what such a Court would do to resolve Adams and Ferguson, the cases that dealt with state authority to prohibit "injurious practices" of businesses, such as upfront fees from employment agencies or non- sanctioned debt-adjusting.3 " Restrictive laws like the one in Ferguson could very well be on the chopping block, as they reek of the type of paternalism that legal libertarians are eager to challenge. Why should debt-adjusting be limited to lawyers if citizens wish to contract with experts in other fields? 45 Why should employment agents not ensure themselves payment while providing a service that is "useful, commendable, and in great demand"?" An Adams-esque redux in a Lochner- friendly climate would be unlikely to trigger a morality exception, as the Old Court found "nothing inherently immoral or dangerous to public welfare" in charging immediate fees from people least able to pay them.34 7