I am also grateful for the comments of workshop participants at Columbia Law School, Georgetown University Law Center, Harvard Law School, and Yale Law School and audiences at the American Society for Legal History, the American Historical Association, and the Society for U.S. For conversation and counsel along the way, I thank Jack Balkin, David Bernstein, Vince Blasi, Tomiko Brown-Nagin, Jessica Bulman-Pozen, Dan Ernst, Robert Ferguson, Willy Forbath, Katherine Franke, Rick Garnett, Bob Gordon, Sally Gordon, Michael Graetz, Kent Greenawalt, Jamal Greene, Bernard Harcourt, Aziz Huq, John Inazu, Olati Johnson, Leslie Kendrick, Andrew Koppelman, Sam Lebovic, Marty Lederman, Sophia Lee, Kara Loewentheil, Anna Lvovsky, Ken Mack, Louise Melling, Gillian Metzger, Henry Monaghan, Sam Moyn, Bill Nelson, Luke Norris, Bill Novak, Victor Pickard, Christina Ponsa, Dave Pozen, Jed Purdy, Sabeel Rahman, Aziz Rana, Laura Phillips Sawyer, Micah Schwartzman, Buffie Scott, Liz Sepper, Reva Siegel, Ganesh Sitaraman, Brad Snyder, Karen Tani, Nelson Tebbe, Kendall Thomas, Adam Tooze, Mark Tushnet, Laura Weinrib, John Witt, and Tim Wu. * Associate Professor and Milton Handler Fellow, Columbia Law School. They could then set to work breaking with a legal tradition long insensitive to the deleterious effects of judicial civil libertarianism on political regulation of the economy. Rather than defending an illusory tradition of economically neutral First Amendment enforcement, critics of today’s First Amendment Lochnerism might more accurately and persuasively position themselves as reformers. This argument, in turn, counsels a reorientation of contemporary advocacy. By recovering the origins and sketching the aftermath of the peddling-tax debate, this Article argues that contemporary critics of First Amendment Lochnerism tend to overstate the phenomenon’s novelty and underestimate the difficulty of curing judicial civil libertarianism of its “Lochnerian” tendencies. ![]() ![]() ![]() In contrast, the Justices and scholars who objected to the 1940s peddling-tax decisions perceived an inextricable relationship between judicial civil libertarianism and judicial interference with economic regulation. Yet today’s critics treat recent case law as a novel, economically libertarian co-option of an otherwise progressive project: the judicial enforcement of civil liberties. Justice Jackson’s warnings sound strikingly similar to contemporary critiques of First Amendment Lochnerism. In dissent, Justice Robert Jackson warned that the new “liberal” majority’s expansive conception of First Amendment enforcement repeated the mistakes of the “liberty of contract” jurisprudence of the Lochner era, undermined democratic regulation of the economy, and imposed the beliefs of some on “the rights of others.” They did so in a series of contentious cases involving the Jehovah’s Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith-the mass sale and distribution of religious literature. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. As this Article demonstrates, anxieties about such “First Amendment Lochnerism” date back to the federal judiciary’s initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. ![]() Critics of this trend invoke the specter of Lochner v. From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent.
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