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33 N. Ky. L. Rev. 365 (2006)
First Amendment Lochnerism - Emerging Constitutional Limitations on Government Regulation of Non-Speech Economic Activity

handle is hein.journals/nkenlr33 and id is 395 raw text is: NORTHERN KENTUCKY LAW REVIEW 2006 SPRING SYMPOSIUM FIRST AMENDMENT LOCHNERISM? EMERGING CONSTITUTIONAL LIMITATIONS ON GOVERNMENT REGULATION OF NON-SPEECH ECONOMIC ACTIVITY Symposium Introduction by Kenneth D. Katkin* The subject of today's Symposium is First Amendment Lochnerism?: Emerging Constitutional Limitations on Government Regulation of Non-Speech Economic Activity. In these opening remarks, I will attempt to describe what that obscure title is intended to convey, and also to tell you a little more about today's program. The term Lochnerism refers generally to a now-discredited judicial doctrine often associated with the Supreme Court's 1905 opinion in Lochner v. New York.' In Lochner, the Supreme Court held unconstitutional a New York law that prohibited bakers from working more than ten hours in a day.2 In striking down this law, the Lochner court stated that minimum wage and maximum hour laws tended to interfere arbitrarily with the liberty of contract that, according to the Court, inhered in the Fourteenth Amendment's Due Process Clause. 3 Following Lochner, many courts in the early twentieth century applied the judge-made constitutional doctrine of liberty of contract to strike down numerous attempts by state and local governments to regulate business and economic affairs.4 Dissenting in Lochner, Justice Oliver Wendell Holmes rejected the Court's contention that the Fourteenth Amendment protects any liberty of contract.5 Justice Holmes argued: Associate Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University; J.D., magna cum laude, 1996, Northwestern University School of Law; A.B., 1987, Princeton University. 1. 198 U.S. 45 (1905), overruled by Ferguson v. Skrupa, 372 U.S. 726, 729 (1963). 2. Id. at 64. 3. See id. at 56-57. 4. See, e.g., Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936) (striking down state minimum wage law for women and child laborers), overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); see also Adkins v. Children's Hosp., 261 U.S. 525 (1923) (striking down D.C. minimum wage law for women and child laborers), overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); see also Coppage v. Kansas, 236 U.S. 1 (1915) (striking down state law that prohibited employers from firing employees for joining labor unions), overruled by Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941); see also Adair v. United States, 208 U. S. 161 (1908) (striking down federal law that prohibited railroad companies from firing employees for joining labor unions), overruled by Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941). 5. See Lochner, 198 U.S. at 75-76 (Holmes, J. dissenting).