William & Mary Bill of Rights Journal
Abstract
The Lochnerism thesis is among the most influential constitutional theories to emerge in recent years. It argues that the judiciary increasingly protects private business from public regulation by enshrining and expanding liberty of contract rights under the First Amendment. Using 303 Creative LLC v. Elenis as a case study, this Essay explores the limits of Lochnerism as a theoretical framework. It argues that, while productively illuminating the judiciary’s attack on the administrative state and democratic processes, the theory may also displace concerns over the concrete harms experienced by vulnerable communities. To bring these harms back into view, this Essay suggests a theoretical reorientation: a shift in perspective from concerns over regulation to a more traditional point of focus—the distribution of property rights.
Repository Citation
Lucien Ferguson, The Limits of Lochnerism, 32 Wm. & Mary Bill Rts. J. 929 (2024), https://scholarship.law.wm.edu/wmborj/vol32/iss4/4Included in
First Amendment Commons, Property Law and Real Estate Commons, Supreme Court of the United States Commons
Comments
Part of a collection of essays stemming from the 2024 AALS Hot Topic Program on Judicial Rights and Legislative Equality: The Future of Public Accommodation and the Polycentric Constitution After 303 Creative v. Elenis.