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The 'Lochner' litmus test

George Will wants to make a century-old Supreme Court case a 2016 litmus test. That's actually a pretty good idea, but not for the reasons Will thinks.
George Will, a Pulitzer Prize-winning conservative American newspaper columnist, journalist, and author.
George Will, a Pulitzer Prize-winning conservative American newspaper columnist, journalist, and author.
When the Washington Post's George Will writes a conservative column promoting conservative ideas, it's ordinarily about as common as the sunrise. But Will's latest piece, identifying what he described as "today's most interesting debate about governance," is actually pretty important.
Indeed, the columnist concludes with a sort of litmus test for the 2016 presidential campaign.

The next Republican president should ask this of potential court nominees: Do you agree that Lochner correctly reflected the U.S. natural rights tradition and the Ninth and 14th amendments' affirmation of unenumerated rights?

At issue is an old Supreme Court case called Lochner v. New York, decided in a 5-4 ruling in 1905, which has been a popular topic of conversation in fringe, far-right circles for a long while. But Will's column suggests that as Republican politics becomes even more radical, obscure ideas that had been relegated to the margins are suddenly front and center.
And that may very well make Lochner a national, front-burner issue for the first time in about a century.
So, what in the world is Lochner? I'm glad you asked.
The case dealt with a New York law, approved in 1895, that sought to protect bakery workers by establishing a maximum number of hours (10) they could work on a given day. The court's majority ruled that the law was unconstitutional -- the relationship between businesses and workers, the court said, was effectively outside the reach of government regulators.
The "Lochner era," spanning roughly the first third of the 20th century, was born. In the process, the Supreme Court struck down practically every public policy, including minimum-wage laws, intended to protect workers from private-sector excesses. There was a "liberty of contract," the justices said, and labor laws were an unconstitutional interference.
Fortunately, the court's radicalism didn't last. FDR began filling the court with more progressive justices in the 1930s; the "New Deal" eventually survived court challenges; and the Lochner era became known as an unfortunate fluke of history.
At least, it did. Back in 2005, the New York Times Magazine published a striking piece on the so-called "Constitution in Exile movement," which believes, among other things, that the Lochner ruling was right and that the Lochner era never should have ended.
Justice Clarence Thomas' opinions, for example, have placed him squarely in the middle of this "movement." Other notable jurists, including Federal Appeals Court Judge Janice Rogers Brown and Texas Supreme Court Justice Don Willett, have also endorsed the original Lochner ruling.
Away from the judiciary, Republican presidential hopeful Rand Paul (R-Ky.) has also made clear that he longs for the Lochner era -- he's called the ruling a "wonderful decision" -- and if elected, he intends to appoint Supreme Court justices who agree.
George Will, meanwhile, also appears to be comfortable with the radicalism, arguing in his column that the original Lochner ruling "affirmed the United States' foundational doctrine: Majorities cannot legislate away individuals' constitutional rights for preposterous or protectionist reasons."
As a practical matter, the modern American mainstream simply wouldn't recognize a society shaped along these lines. A return to the Lochner era would mean an end to minimum-wage laws, an end to laws prohibiting discrimination in the workplace, and the elimination of practically all legally mandated workplace benefits, even related to hazardous working conditions.
Some employers would probably honor these norms anyway, but some wouldn't, and there would be nothing state and/or federal policymakers could do about it. Decisions would be voluntary and left entirely to the private sector.
And with this in mind, George Will wants Republican presidential candidates to take a stand, one way or the other. Given the circumstances, I'd love to hear their answers, too.