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Souter, J., dissenting
century the Court should choose to open a new constitutional chapter in confining legislative judgments on these matters by resort to textually unwarranted common-law rules, for it was just this practice in the century's early decades that brought this Court to the nadir of competence that we identify with Lochner v. New York, 198 U. S. 45 (1905).60
It was the defining characteristic of the Lochner era, and its characteristic vice, that the Court treated the common-law background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. See, e. g., Adkins v. Childrens Hospital of D. C., 261 U. S. 525, 557 (1923) (finding abrogation of common-law freedom to contract for any wage an unconstitutional "compulsory exaction"); see generally Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873 (1987). And yet the superseding lesson that seemed clear after West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), that action within the legislative power is not subject to greater scrutiny merely because it trenches upon the case law's ordering of economic and social relationships, seems to have been lost on the Court.
The majority today, indeed, seems to be going Lochner one better. When the Court has previously constrained the express Article I powers by resort to common-law or background principles, it has done so at least in an ostensible effort to give content to some other written provision of the Constitution, like the Due Process Clause, the very object of
60 Cf. United States v. Lopez, 514 U. S. 549, 606 (1995) (Souter, J., dissenting) ("The fulcrums of judicial review in [the Lochner cases] were the notions of liberty and property characteristic of laissez-faire economics, whereas the Commerce Clause cases turned on what was ostensibly a structural limit of federal power, but under each conception of judicial review the Court's character for the first third of the century showed itself in exacting judicial scrutiny of a legislature's choice of economic ends and of the legislative means selected to reach them").
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