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Lochner Under Lockdown

In 1905, the Supreme Court rendered two landmark decisions on the scope of individual liberty—Jacobson vs. Massachusetts and Lochner v. New York. The first denied a substantive due process claim and has become the go-to citation in COVID-19 cases. The other upheld a substantive due process claim—but was later overruled and thrown in the dustbin of constitutional history. Yet to address the broad restrictions on liberty caused by current and foreseeable pandemic responses, it is worth noting that the Lochner Court is the Jacobson Court and that the cases were decided within months of each other. The latter’s broad deference to public health authority lived side-by-side with a broader conception of individual liberty. At a time when state police power has imposed unprecedented limitations on individuals’ ability to provide for themselves in dignity, Lochner should be brought out of lockdown. 
 
This Essay argues that whatever Lochner’s failings, the rationales for its overruling subsequent are largely inapplicable to the current COVID-19 restrictions. Unlike the laws occasionally struck down by the Lochner Court, shut down orders and the like have an economic effect, but are not economic policy. They regulate people's ability to make a living even more than most economic laws. Lockdown measures are accompanied by a governmental power to determine, often on inscrutable grounds, what callings are sufficiently important or "essential" to some undefined notion of social good to be carried on. This may be one of the broadest assertions of sovereign authority in peacetime. Yet in a post-Lochner world, we lack the constitutional language to deal with the potential danger to liberty implicated by such measures. At the same time, the Jacboson/Lochner juxtaposition demonstrates that taking work-related liberties seriously does not mean jettisoning deep deference to public health measures, especially in infectious emergencies. 
 
Lochner is often criticized as an attempt by the Court to second-guess legislative judgements about economic policy and redistribution. This Essay shows that a more modest, focused version of the Lochner doctrine is much better suited to traditional police power measures (such as health and safety) that nonetheless have significant effects on people’s ability to pursue their callings and support themselves. (Lochner itself was the opposite—an economic regulation dressed up as public health measure.) This Essay presents a model for a "little Lochner" that would allow for constitutional scrutiny of unprecedented non-economic policies that broadly interfere with people's ability to pursue their callings, while taking seriously courts' limited expertise and society's need to protect itself for virological externalities.