The Lochner Era and Comparative Constitutionalism

The Lochner era exerts a powerful hold over the American constitutional imagination as an example of the dangers of judicial review. Indeed, much of the edifice of the last fifty years of American constitutional jurisprudence can be viewed as a reaction to, a rejection of, and an attempt to avoid a repetition of, the Lochner era. I want to explore a related phenomenon that has received insufficient attention from students of comparative constitutionalism - namely, the role of the Lochner era in constitutional discourse outside of the United States. My central argument is that instead of serving as a positive model for drafting and construing constitutional provisions, the Lochner era serves as a negative guide to constitutionalism, with respect to both the framing of constitutions and constitutional interpretation. Lochner lurks as a shadow over liberal democratic constitutionalism, a constitutionalism which is framed in part by what it is not. In so doing, the Lochner era stands as perhaps the paradigmatic instance of an "anti-model" of comparative constitutional experience.