Som den redigerende Punditokrat Peter Kurrild-Klitgaard har skrevet tidligere, er det lidet sandsynligt, at Janice Roger Brown bliver udnævnt som ny associate justice ved den amerikanske Højesteret (USC), dertil er hun for kontroversiel. Browns synd består bl.a.i, at hun har udtalt sig positivt om USC's afgørelse i Lochner v. New York. I denne afgørelse fra 1905 erklærede USC en lov der fastsatte et maksimum på bagere i New Yorks arbejdstid for forfatningsstridig. Afgørelsen er blandt både liberale (i ordets amerikanske betydning) og konservative jurister anset som en rædselsfuld dom, hvor aktivistiske dommere tiltog sig magt, der rettelig tilhørte den lovgivende (og udøvende) magt. Dommen lagde navn til en periode, hvor et flertal i USC erklærede en række love a la den i Lochner for forfatningsstridige. Lochner æraen førte til åben konflikt med Præsident Roosevelt, hvis "New Deal" reformer også blev invalideret af USC. Lochner æraen varede indtil 1937, hvor USC, nu med nye dommere udpeget af Roosevelt, afveg fra Lochner i dommen West Coast Hotel v. Parish.
Men var Lochner nu så forfærdelig en dom? Her er nogle nøglepræmisser:
In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor[…]
The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the state, interfering with their independence of judgment and of action. They are in no sense wards of the state. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals, nor the welfare, of the public, and that the interest of the public is not in the slightest degree affected by such an act. The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker. It does not affect any other portion of the public than those who are engaged in that occupation. Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. The limitation of the hours of labor does not come within the police power on that ground.
It is a question of which of two powers or rights shall prevail,-the power of the state to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes [198 U.S. 45, 58] with the general right of an individual to be free in his person and in his power to contract in relation to his own labor[…]
It is also urged, pursuing the same line of argument, that it is to the interest of the state that its population should be strong and robust, and therefore any legislation which may be said to tend to make people healthy must be valid as health laws, enacted under the police power. If this be a valid argument and a justification for this kind of legislation, it follows that the protection of the Federal Constitution from undue interference with liberty of person and freedom of contract is visionary, wherever the law is sought to be justified as a valid exercise of the police power. Scarcely any law but might find shelter under such assumptions, and conduct, properly so called, as well as contract, would come under the restrictive sway of the legislature. Not only the hours of employees, but the hours of employers, could be regulated, and doctors, lawyers, scientists, all professional men, as well as athletes and artisans, could be forbidden to fatigue their brains and bodies by prolonged hours of exercise, lest the fighting strength [198 U.S. 45, 61] of the state be impaired. We mention these extreme cases because the contention is extreme. We do not believe in the soundness of the views which uphold this law. On the contrary, we think that such a law as this, although passed in the assumed exercise of the police power, and as relating to the public health, or the health of the employees named, is not within that power, and is invalid. The act is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts. Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual, and they are not asved from condemnation by the claim that they are passed in the exercise of the police power and upon the subject of the health of the individual whose rights are interfered with, unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health, or to the health of the employees, if the hours of labor are not curtailed. If this be not clearly the case, the individuals whose rights are thus made the subject of legislative interference are under the protection of the Federal Constitution regarding their liberty of contract as well as of person; and the legislature of the state has no power to limit their right as proposed in this statute.
USC fastslog med andre ord, at aftalefrihed var en personlig frihedsret på linje med andre fundamentale personlige frihedsrettigheder, samt at den amerikanske forfatning indeholdt en generel ret til frihed, som staten kun kan indskrænke, såfremt den løfter en tung bevisbyrde. Lochner er derfor, set med mine øjne, et højdepunkt i USCs historie, ikke en skamplet. Reaktionerne på Janice Roger Browns udtalelser viser dog desværre, at det er mere end usandsynligt, at en ny Lochner æra opstår indenfor den overskuelige fremtid.