The Lochner Era and Comparative Constitutionalism

“The Lochner era and comparative constitutionalism” (2004) 2 International Journal of Constitutional Law 1-55.

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The Lochner era exerts a powerful hold over the American constitutional imagination. 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. Instead of serving as a positive model for drafting and construing constitutional provisions, the Lochner era serves as a negative guide to constitutionalism. I argue that Lochner has three distinct meanings. First, Lochner stands for judicial activism, understood as the constitutionalization of judicial policy preferences. Second, Lochner is synonymous with economic libertarianism. Finally, Lochner represents constitutional crisis. Lochner discourse illustrates that comparative constitutional experience can function dialogically, by furnishing narratives of constitutional failure that facilitate and enable constitutional choice. Learning across jurisdictions does not simply mean the transplantation and/or adaptation of positive constitutional models. Rather, it further entails the avoidance of negative models or constitutional pathologies, which can serve as foils to highlight the potentially worrisome implications of certain institutional, textual and interpretive options.