Liberty of Contract: Rediscovering a Lost Constitutional Right

Alarmed by the explosive growth of government, Americans today are more interested than ever in the U.S. Constitution and the limits it places on government power. Liberty of Contract powerfully illuminates a key limit: the right of individuals to enter into contracts with one other.

This fundamental right was protected by the Supreme Court in the early 20th century, from 1897 until the New Deal, during what is called the “Lochner era.” Named after the historic liberty-of-contract decision by the Supreme Court, the Lochner era saw the Court strike down laws that interfered with the freedom of people to bargain over the terms of their own contracts. These included minimum-wage and maximum-hours laws, housing segregation laws, licensing laws and laws interfering with the freedom of parents to determine what kind of schooling their children receive. Then in 1937, as part of the “New Deal revolution,” the Court abandoned its protection of these vital economic and personal liberties, contributing significantly to the tremendous growth in the nation’s regulatory and welfare state over the past several decades.

In this first comprehensive treatment of one of the most misunderstood and underestimated chapters in U.S. constitutional law, legal scholar David Mayer explores this lost right, identifying the foundations and nature of the Court’s Lochner-era jurisprudence. In doing so, he shatters myths that scholars have created about this era, including the notion that the Court was reading a “laissez-faire” ideology into the Constitution–as Justice Oliver Wendell Holmes asserted in his Lochner dissent. Mayer demonstrates that the old Court thus was less guilty of judicial activism than the modern Court, with its inconsistent protection of individual rights. Modern constitutional law owes much to the Lochner era, including protection of the “right to privacy,” the last remaining vestige of liberty of contract.

Read an interviewwith the author from Reason Magazine.

“This deeply researched and thoughtful study vigorously challenges the enduring myths that distort our understanding of constitutionally protected contractual freedom. Combining legal analysis with attention to the intellectual and political environment, David Mayer offers an insightful reading of the rise and fall of the liberty-of-contract doctrine. For anyone interested in economic rights, this volume is necessary reading.”

—JAMES W. ELY JR., Vanderbilt University, author of The Guardian of Every Other Right: A Constitutional History of Property Rights

“As students of constitutional history know, the Lochner era (1897–1937) is typically vilified as a time when judges imposed their personal opinions to invalidate laws that regulated the economy. Professor Mayer offers a far more complex and nuanced view of that era as a time when judges often, but not always, invoked a presumption of liberty. He shows that Lochner-era justices protected not only economic but personal rights as well, such as the right of parents to teach their children in a foreign language or to send their children to a private school, whereas anti-Lochner justices like Oliver Wendell Holmes rejected such a presumption. To know where the modern Court will go, we have to know from where it came, and for that, Professor Mayer’s book is invaluable.”

—RONALD D. ROTUNDA, Chapman University School of Law, author of Modern Constitutional Law

“David Mayer has emerged as one of the most insightful constitutional scholars on the scene today. In this superb new book, he rescues the constitutional value of liberty of contract. This book will take its place as one of the most important works on constitutional history in the early 21st century.”

—STEPHEN B. PRESSER, Northwestern University School of Law, author of Law and Jurisprudence in American History

David N. Mayer is professor of law and history at Capital University and author of the book The Constitutional Thought of Thomas Jefferson. He earned a Ph.D. in history from the University of Virginia and a law degree from the University of Michigan.