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(TNS)For many decades, the Supreme Courts 1905 decision in Lochner v. New York has ranked among the most universally despised rulings in the history of American law. In that long-repudiated case, the court struck down a maximum-hours law for bakers.

A week ago, Sen. Rand Paul a likely candidate for president, and among the most influential members of the Republican Party explicitly embraced Lochner, and proudly endorsed the whole idea of judicial activism. That tells us a lot about contemporary law and politics, and probably about the future of conservative thinking as well.

In its ruling inLochner, the court relied on the due process clause of the 14th Amendment, which bars states from deprivingpeople of life, liberty or property without due process of law. In the courts view, liberty includes freedom of contract. The court said that if states cannot offer a strong justification for intruding on that form of freedom, they have violated the Constitution.

Under this approach, a lot of modern legislation could run into constitutional trouble, including minimum-wage laws, rent-control laws, occupational-safety laws, even laws forbidding discrimination on the basis of race, sex and disability and Obamacare as well.

By the late 1930s, however, the Supreme Court repudiated its whole approach in the Lochner case. It embraced instead a version of Oliver Wendell Holmes dissent, which insisted that a constitution is not intended to embody a particular economic theory, and that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.

Ever since the 1930s, there has been widespread agreement that, at least in the economic sphere, Holmes was right and Lochner was wrong. But people have disagreed about exactly why.

In rejecting Lochner, many conservatives have called broadly for judicial restraint. In their view, federal judges should be reluctant to second-guess the judgments of the elected branches, whether the issue involves maximum-hour laws, the criminal justice system, voting rights, school prayer or abortion.

Other conservatives have emphasized that the Lochner Court was unfaithful to the text and original meaning of the Constitution. In their view, the due process clause doesnt give general protection to freedom of contract; it says, much more narrowly, that before states can take your property, your liberty or your life, they have to give you a hearing (due process).

But more recently, conservative constitutional thought has undergone a reversal, even a kind of revolution. The University of Chicagos Richard Epstein and Timothy Sandefur of the Pacific Legal Foundation have argued for a much more aggressive judicial role in protecting private property and freedom of contract. Sandefur himself believes that Lochner was right.

On the Supreme Court, that position has no support, and in Congress, it remains a fringe view. But among a younger generation, conservative judicial activism has unmistakable, and growing, appeal. The fringe seems to be moving toward the center.

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Rand Pauls novel conservative judicial activism