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By John David Dyche WDRB Contributor

Speaking at the Heritage Action Conservative Policy Summit in Washington earlier this month, Kentucky's junior U.S. Senator and likely presidential candidate Rand Paul said, "I'm a judicial activist when it comes to Lochner. I'm a judicial activist when it comes to the New Deal."

In so doing, he joined a growing and impressive group of conservative and libertarian thinkers, including the influential columnist George Will, who embrace a concept long criticized by conservatives.

In the 1905 Lochner case, the Supreme Court struck down a state law limiting weekly hours of bakery employees. The high court held that the law violated "the liberty of the individual protected by the 14th Amendment of the Federal Constitution."

Lochner and its progeny limited the so-called "police powers" of states to interfere "with the general right of an individual to be free in his person and in his power to contract in relation to his own labor."

For the following three decades, this doctrine, referred to as "substantive due process," blocked not only lots of state laws regulating economic matters, but also federal laws proposed by Franklin D. Roosevelt as part of his New Deal response to the Great Depression.

Justice Oliver Wendell Holmes famously dissented in Lochner. He wrote that the "Constitution is not intended to embody a particular economic theory," but was "made for people of fundamentally differing views."

Holmes contended that "the word liberty,' in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion" unless "a rational and fair man" would find that the statute in question "would infringe fundamental principles as they have been understood by the traditions of our people and our law."

In its famous "Switch in Time That Saved Nine," the Supreme Court adopted the Holmes position, perhaps to prevent Roosevelt from "packing" that tribunal with new justices to end its obstruction of his progressive proposals. Even most conservative judges eventually came around to that way of thinking and repudiated Lochner and substantive due process as judicial activism.

Indeed, when this columnist was in law school in the 1980s, he had the opportunity to ask conservative Chief Justice William Rehnquist if Lochner-style substantive due process was fully, finally, and forever dead. Rehnquist replied that he thought it was.

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DYCHE | Rand Paul, Judicial Activist