He attacked the underlying premise of the decision, saying that, “A constitution is not intended to embody a particular economic theory It is made for people of fundamentally differing views” (Paul 74). He viewed the Courts opinion in a dangerous light because it represented the infusion of a fundamental right into the Constitution.
Modern commentators who agree with Justice Holmes dissenting position face a problem as it relates to more modern Supreme Court decisions, such as Roe v. Wade. If the position is held that Holmes was correct in his opinion, then the same position must also be held that the Supreme Courts Roe v. Wade decision is incorrect. In the Roe V. Wade case, the Court ruled that a womans right to have an abortion is based upon the development of the fetus in her womb. In the first trimester, the state cannot restrict a womans right to have an abortion; in the second trimester, the state can only restrict a womans right in ways that are reasonably associated to the womans health; in the third trimester, the state can restrict the womans right as it sees fit, except in the case of the preservation of the life of the woman.
In a manner similar to the Lochner case, the Roe v. Wade decision represents the infusion of judicial activism into the law. The Lochner case deals with an issue that is economic in nature; the nature of such a case is beyond the purview of the Court in the eyes of the Justice Holmes and those who agree with him. In the same way, the Roe v. Wade decision deals with an issue that is potentially beyond the purview of the Court.
The issue of whether or not a fetus is viable is a medical issue, not a judicial one. It is not up to the Court to determine whether or not a fetus is a living human being before birth, it is up to the medical establishment to make this determination. A criticism targeting the economic due process approach used by the Lochner justices is a double edged sword for those who are in favor of cases such as Roe v. Wade. If the Lochner decision is considered a judicial misuse of power, then so should the Roe v. Wade decision.
The Supreme Court case of Joseph Lochner stands as one of the more controversial decisions in the history of the United States. Although the decision to allow employers to set their own standard of fair working conditions has essentially been overturned, the issue of whether or not the Courts always operate within the limits of the law and the Constitution has not been exhausted.
Paul, Kens. Lochner v. New York:.