Document Type

Article

Publication Date

1-31-2010

Abstract

Lochner v New York and Roe v Wade are often linked together as substantive due process decisions Since Roe was decided 1973 critics and defenders have been dancing a wellpracticed minuet critics charging that Roe is Lochner all over again defenders distinguishing the two cases castigating Lochner while celebrating Roe This Article argues that this entire dance is out of beat with the historical music The analogical link between Lochner and Roe is ahistorical and misleading The key to understanding the relationship or lack of relationship between Lochner and Roe is not the definition of substantive due process In fact no Supreme Court justice even used the phrase ÔÇÿsubstantive due process' until 1948 when Justice Wiley B Rutledge used it in dissent To understand Lochner and Roe correctly one must understand that each was decided under a different democratic regime Lochner under republican democracy and Roe under pluralist democracy Because of the distinctive characteristics of republican and pluralist democracies the practices of judicial review starkly differed under each Put in different words Lochner and Roe were decided within distinct paradigms of democracy and constitutional law and as such the cases are largely incommensurable

First Page

47

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