Book Review

Ever since the passage of the Fourteenth Amendment, its meaning has been highly contested. For example, did the amendment prohibit governmental regulation of economic activity? Although the Supreme Court's decision in the Slaughterhouse Cases (1873) refused to apply the Fourteenth Amendment to local economic regulations that did not explicitly discriminate against African Americans, four justices would have done so. In 1905, the Supreme Court adopted the dissenters' point of view. Lochner v. New York invalidated a law that prohibited bakeries from employing bakers for more than sixty hours a week. From 1905 until 1937, the Supreme Court remained "relatively sympathetic to plaintiffs who challenged government regulations, especially occupational regulations, as violations of the implicit constitutional right to 'liberty of contract.'" As David E. Bernstein demonstrates, however, the notion that the Court rejected all economic regulation until 1937 does not bear scrutiny; indeed, even during the Lochner era, the courts upheld the vast majority of challenged regulations. Bernstein also rebuts the idea that Lochner-era justices simply substituted their policy preferences for those of the legislative branch. Rather, the justices construed the Fourteenth Amendment in terms of the prevailing "free labor" ideology and a suspicion of laws, especially those regulating employment, that appeared to give preference to special interests, as opposed to protecting the health or safety of the general public.

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