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Rufus W. Peckham and the Pursuit of Economic Freedom
Abstract
It is striking that Rufus W. Peckham has received so little scholarly attention and remains without a biography. He was, of course, the author of Lochner v. New York (1905),1 one of the most famous and contested decisions in the history of the Supreme Court. Moreover, Peckham wrote important opinions dealing with contractual freedom, anti‐trust law, eminent domain, dormant commerce power, and the Eleventh Amendment. Indeed, Owen M. Fiss maintains that Peckham and David J. Brewer were intellectual leaders of the Fuller Court, “influential within the dominant coalition and the source of the ideas that gave the Court its sweep and direction.” Even when they did not prevail, Fiss observed, Peckham and Brewer “set the terms for the debate.”2
... SeeBickel & Brandeis 1957, 164. 38 Three studies will serve as my main guides here: Duker 1980;Ely 2009Ely , 2012; and the sections on Peckham's jurisprudence inMeese 1999. ...
The paper deals with the famous Lochner v. New York (1905) decision from the perspective of the history of economic thought. In Lochner the Supreme Court affirmed freedom of contract as a substantive constitutional right. It is argued that, in writing for the majority, Justice Rufus W. Peckham was heavily influenced by classical political economy. Not, however, in the trivial sense of endorsing pure laissez faire, but in the much deeper sense of applying Adam Smith’s Wealth of Nations recipe for the building of a “system of natural liberty”, viz., a social order founded on justice, private property, and free competition. My interpretation is validated by looking at the economic content of Peckham’s jurisprudence as a judge in the New York Court of Appeals.
This paper deals with the famous Lochner v. New York (1905) decision from the perspective of the history of economic thought. In »Lochner« the Supreme Court affirmed freedom of contract as a substantive constitutional right. It is argued that, in writing for the majority, Justice Rufus W. Peckham was heavily influenced by classical political economy. Not, however, in the trivial sense of endorsing pure laissez faire, but in the deeper sense of applying Adam Smith’s recipe for building a “system of natural liberty”, viz., a social order founded on justice, private property, and free competition. My interpretation is validated by looking at the economic content of Peckham’s jurisprudence as a judge in the New York Court of Appeals. JEL Codes: B12, K21, L40
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