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The Lochner era and comparative constitutionalism

Abstract

The Lochner era exerts a powerful hold over the American constitutional imagination as an example of the dangers of judicial review. Indeed, much of the edifice of the last fifty years of American constitutional jurisprudence can be viewed as a reaction to, a rejection of, and an attempt to avoid a repetition of, the Lochner era. I want to explore a related phenomenon that has received insufficient attention from students of comparative constitutionalism - namely, the role of the Lochner era in constitutional discourse outside of the United States. My central argument is that instead of serving as a positive model for drafting and construing constitutional provisions, the Lochner era serves as a negative guide to constitutionalism, with respect to both the framing of constitutions and constitutional interpretation. Lochner lurks as a shadow over liberal democratic constitutionalism, a constitutionalism which is framed in part by what it is not. In so doing, the Lochner era stands as perhaps the paradigmatic instance of an "anti-model" of comparative constitutional experience.
ARTICLE
The Lochner era and comparative
constitutionalism
Sujit Choudhry*
We should be careful to avoid the pitfall of Lochner v. New York which has
been described by Professor Tribe. . . as being “not in judicial interven-
tion to protect ‘liberty’ but in a misguided understanding of what liberty
actually required in the industrial age.” The Lochner era gave rise to
serious questions about judicial review and the relationship between the
court and the legislature....
President Arthur Chaskalson, Constitutional Court of South Africa1
I therefore reject the application of the American line of cases that
suggest that liberty under the Fourteenth Amendment includes liberty of
contract. As I stated earlier these cases have a specific historical context,
a context that incorporated into the American jurisprudence certain
laissez-faire principles that may not have a corresponding application to
the interpretation of the [Canadian] Charter [of Rights and Freedoms] in
the present day.
Justice (later Chief Justice) Antonio Lamer, Supreme Court of Canada2
© Sujit Choudhry 2004, 1
I.CON, Volume 2, Number 1, 2004, pp. 1–55
* Faculty of Law, University of Toronto. E-mail: sujit.choudhry@utoronto.ca; website:
www.law.utoronto.ca/faculty/choudhry. I thank Blake Brown, Roy Lee, and Jo-Anne Pickel for excellent
research assistance, Ted Tjaden for invaluable help in securing Supreme Court of Canada facta, Trish
McMahon for helpful information, and Bernadette Mount for superb secretarial support. This work was
financially supported by the Cecil Wright Foundation and the Connaught Foundation. An earlier version
of this paper was presented at the 2001 Annual Meeting of the Law and Society Association in
Budapest, the 2002 Annual Meeting of the Law and Society Association in Vancouver, and to audiences
at the Witswatersrand University School of Law, and the Faculty of Law, University of Cape Town. I thank
Harry Arthurs, Blake Brown, Victor Ferreres Comella, Aeyal Gross, Sarah Harding, Vicki Jackson, Heinz
Klug, Ross Kriel, Dan Markel, Christina Murray, Ira Parghi, Michel Rosenfeld, Theunis Roux, David
Schneiderman, Kevin Stack, Stu Woolman, the audiences at those presentations, and an anonymous
reviewer, for helpful comments, discussions, and questions. All remaining errors are mine. This article
builds upon and extends arguments first presented in Sujit Choudhry, Globalization in Search of
Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 IND. L.J. 819 (1999).
1Ferreira v. Levin NO, 1996 (1) BCLR 1, 308 (CC), quoting LAURENCE H. TRIBE, AMERICAN
CONSTITUTIONAL LAW 769 (Foundation Press, 2d ed. 1988).
2Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123,
1171 (Can.) [hereinafter Prostitution Reference].
The trauma experienced in America as a result of the Lochner case must
not bring Israeli law to a standstill. We must, over the course of the years
to come, adopt a comprehensive constitutional philosophy....
Chief Justice Aharon Barak, Supreme Court of Israel3
1. Introduction
Even in the era of globalization, politics within nation-states is still predomi-
nantly “politics in the vernacular,”4stressing the particular features of
national political communities. But an awareness of the particular can be
sharpened through a process of comparison. In the Indian case, for example,
Amartya Sen observes that many nationalist thinkers have sought to identify
and distinguish the characteristic features of Indian culture from “the West,”
a process that is at once “dialectical and largely negative,” as a mechanism to
strengthen the bonds of the Indian political community.5And the differences
thus identified need not be cultural, reflecting instead deep disagreement over
the fundamental values underlying a basic structure of political and economic
rules and institutions. In this vein, the Federalist Papers argued that some fea-
tures of comparative constitutional experience were to be avoided by the nas-
cent American republic.6And we should expect to find the invocation of
difference, in its various forms, not only across jurisdictions and historical con-
texts but also across a variety of institutional settings. The constructive use of
comparison should figure not just in public debate but in legal argument as
well, as a resource both to frame and to interpret formal sources of law, includ-
ing constitutions.
In this article, I extend this claim by describing a distinctive mode of consti-
tutional argumentation I term “Lochner discourse.” The Lochner era exerts a
powerful hold over the American constitutional imagination as an example of
the dangers of judicial review. As Ronald Dworkin colorfully puts it, Lochner is
2S. Choudhry
3United Mizrahi Bank Ltd. v. Migdal Cooperative Village, 49 P.D. 221, ¶ 102 (1995) (unofficial
translation), reprinted in LORRAINE E. WEINRIB & TSVI KAHANA, GLOBAL CONSTITUTIONALISM 21–102
(Faculty of Law, Univ. of Toronto 1999).
4WILL KYMLICKA, POLITICS IN THE VERNACULAR: NATIONALISM, MULTICULTURALISM, AND CITIZENSHIP
(Oxford Univ. Press 2001).
5Amartya Sen, On Interpreting India’s Past, in NATIONALISM, DEMOCRACY AND DEVELOPMENT: STATE AND
POLITICS IN INDIA 10, 17 (Sugata Bose & Ayesha Jalal eds., Oxford Univ. Press 1997). Later in this
essay, Sen points to the contrast employed by Indian nationalists between Western “materialism”
and Indian “spirituality.” Id. at 35.
6THE FEDERALIST No. 10 (Alexander Hamilton).
the “whipping boy” of American constitutional law.7Indeed, much of the
edifice of the last fifty years of American constitutional jurisprudence is a reac-
tion to, a rejection of, and an attempt to avoid a repetition of, the Lochner era.
I want to explore a related phenomenon that has received insufficient atten-
tion from students of comparative constitutionalism—namely, the role of the
Lochner era in constitutional discourse outside of the United States. Instead of
serving as a positive model for drafting and construing constitutional provi-
sions, the Lochner era serves as a negative guide to constitutionalism. Lochner
lurks as a shadow over liberal democratic constitutionalism, an “aversive”
constitutionalism that is framed, in part, by what it is not.8In so doing, the
Lochner era stands as perhaps the paradigmatic instance of an “anti-model” of
comparative constitutional experience.9
I argue that Lochner has three distinct meanings. First, Lochner stands for
judicial activism, understood as the constitutionalization of judicial policy
preferences; this is the meaning ascribed to Lochner by President Arthur
Chaskalson of the Constitutional Court of South Africa, in the context of the
interpretation of the constitutional right to liberty. Second, Lochner is synony-
mous with economic libertarianism; this is the meaning given to Lochner by
Chief Justice Antonio Lamer of the Supreme Court of Canada, in a case involv-
ing the interpretation of the Canadian analogue of the due process clause.
Finally, Lochner represents constitutional crisis. This image of Lochner is
invoked by Chief Justice Aharon Barak of the Supreme Court of Israel, on the
occasion of that court’s assertion of the power of constitutional judicial
review. As an illustrative case study, I focus on the interpretive work done by
the image of the Lochner era in Canada, during the debates surrounding the
adoption of the Canadian Charter of Rights and Freedoms,10 and in the
jurisprudence and critical commentary that has arisen under that document.
Not only has each of Lochner’s three meanings figured prominently in
Canadian constitutional thought; additionally, Canadian constitutional actors
have differed over which aspects of Lochner’s legacy are to be avoided.
The Lochner era and comparative constitutionalism 3
7RONALD DWORKIN, FREEDOMSLAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 82 (Harvard
Univ. Press 1996).
8Kim Lane Scheppele, Aspirational and Aversive Constitutionalism: The Case for Studying Cross-
Constitutional Influence Through Negative Models, 1 INTLJ. CONST. L. (ICON) 296 (2003).
9Heinz Klug, Model and Anti-Model: The United States Constitution and the “Rise of World
Constitutionalism,” 2000 WIS. L. REV. 597 (2000). Bruce Ackerman’s recent argument that the
American approach to the separation of powers should not be relied on by constitutional framers
in other jurisdictions is a case in point of this mode of comparative constitutional analysis. Bruce
Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633 (2000).
10 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as
Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [hereinafter Charter].
Although I focus on Canada, Lochner discourse is also present in
the constitutional discourse of other jurisdictions, as the introductory quo-
tations make clear. Because of the prevalence of Lochner discourse, the
Canadian experience offers lessons for the study of the globalization of the
practice of modern constitutionalism. In this context, globalization does not
simply mean that the commitment to constitutionalism is now widespread.
Rather, it implies, in addition, the reliance on comparative material at all
stages in the life cycle of modern constitutions, be it comparative jurispru-
dence in constitutional interpretation or foreign constitutional texts and
experiences in the process of constitution making.
The globalization of the practice of modern constitutionalism has had a
dramatic impact on the legal academy, reinvigorating the study of comparative
constitutional law. However, despite a burgeoning literature, students of com-
parative constitutional law have largely failed to address, systematically, ques-
tions of methodology—that is, to ask the basic questions of what the point of
comparative inquiry is, and how that enterprise is to be undertaken. My strat-
egy in answering these questions is, first, to describe the practice of constitu-
tional actors themselves and, second, to identify the reasons they give for
engaging in comparative constitutional argumentation. Lochner discourse
illustrates that comparative constitutional experiences can function dialogi-
cally, by furnishing narratives of constitutional failure that facilitate and
enable constitutional choice. Thus understood, learning across jurisdictions
does not simply mean the transplantation and/or adaptation of positive con-
stitutional models. Rather, it further entails the avoidance of negative models
or constitutional pathologies, which can serve as foils to highlight the poten-
tially worrisome implications of certain institutional, textual, and interpretive
options.
2. The meaning of the Lochner era in American
constitutional thought
Although Lochner v. New York11 involved the invalidation of a rather narrow
piece of legislation—a state law setting the maximum hours of work for
bakers—the case has come to define a forty-year period of American constitu-
tional jurisprudence, from 189712 to 1937.13 During this period, the U.S.
Supreme Court struck down close to two hundred state and federal laws
regulating a wide variety of market relationships. The most infamous of these
4S. Choudhry
11 198 U.S. 45 (1905).
12 Allgeyer v. Louisiana, 165 U.S. 578 (1897).
13 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
cases concerned laws regulating labor relations.14 To be sure, we must be
mindful of Charles Warren’s well-known and provocative observation that the
Lochner-era Court also rejected constitutional challenges to a great deal of
socioeconomic legislation.15 However, putting this point to one side, the
Lochner era was characterized by a judicial resistance to the regulatory,
redistributive, and activist state the likes of which the American constitutional
system has not since seen.
Even a casual observer of American constitutionalism is struck by the dom-
inant place the Lochner era occupies within contemporary American constitu-
tional thought. There is a massive literature on Lochner and its meaning. Legal
historians debate the place of the Lochner era within the evolving practice of
American constitutionalism, examining the extent to which it marked a depar-
ture from or built upon preexisting constitutional doctrine and discourse, the
degree to which the Lochner Court was in keeping or out of step with prevail-
ing political ideologies, and the plausibility of the claim that the post-1937
constitutional settlement marked a return to the principles of the pre-Lochner
Court instead of a revolutionary transformation of American constitutional
law.16 With a handful of exceptions, normative constitutional theorists take
the wrongness of Lochner as a fixed point in their accounts of constitutional
interpretation and feel compelled to explain why exactly Lochner was in error,
and how their theories of judicial review would avoid altogether, or minimize
the prospects of, a return to Lochner. It is a standard argumentative trope, for
The Lochner era and comparative constitutionalism 5
14 See, e.g., Adkins v. Children’s Hospital of the District of Columbia, 261 U.S. 525 (1923) (finding
a minimum wage law unconstitutional). Other cases involved, for example, laws that laid down
professional licensing requirements in connection with the sale of goods (see, e.g., Louis K. Liggett
Co. v. Baldridge, 278 U.S. 105 (1928)) and that regulated contracts of insurance (see, e.g., Allgeyer,
165 U.S. 578).
15 2 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY, 1836–1918 (Little, Brown, and
Co. 1926).
16 For recent discussions, see, e.g., Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation
of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LAW & HIST. REV. 293 (1985); 8 OWEN
M. FISS, HISTORY OF THE SUPREME COURT OF THE UNITED STATES: TROUBLED BEGINNINGS OF THE MODERN STAT E,
1888–1910 (Macmillan 1993); HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF
LOCHNER ERA POLICE POWERS JURISPRUDENCE (Duke Univ. Press 1993); MORTON J. HORWITZ, THE
TRANSFORMATION OF AMERICAN LAW, 1870–1960: THE CRISIS OF LEGAL ORTHODOXY (Oxford Univ. Press
1992); Paul Kens, Lochner v. New York: Rehabilitated and Revised, but Still Reviled, 20J. SUP. CT. HIST.
31 (1995); Mary Cornelia Porter, Lochner and Company: Revisionism Revisited, in LIBERTY, PROPERTY,
AND GOVERNMENT: CONSTITUTIONAL INTERPRETATION BEFORE THE NEW DEAL 11 (Ellen Frankel Paul &
Howard Dickman eds., State Univ. of New York Press 1989); Gary D. Rowe, Lochner Revisionism
Revisited, 24 LAW & SOC. INQUIRY 221 (1999); G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL
(Harvard Univ. Press 2000). Bruce Ackerman addresses these historical questions in the context
of constructing a theory of the American Constitution in which he emphasizes the revolutionary
nature of the turn away from Lochner in 1937. 1 BRUCE ACKERMAN, WE THE PEOPLE, FOUNDATIONS
(Harvard Univ. Press 1991); 2 BRUCE ACKERMAN, WE THE PEOPLE, TRANSFORMATIONS (Harvard Univ.
Press 1998).
example, for constitutional theorists to proceed from two fixed points: that
Brown v. Board of Education17 was right, but that Lochner was wrong.18 And
although Lochner has been long discredited, justices of the U.S. Supreme Court
continue to refer to it.19 Lochner has been invoked to justify the refusal to rec-
ognize certain privacy rights20 or to explain that the recognition of certain pri-
vacy rights does not raise Lochner’s specter.21 Indeed, the delegitimization of
Lochner is so deeply entrenched that it was explicitly invoked by a plurality of
the Court as a reason to scrutinize a redistributive scheme under the takings
clause, as opposed to the due process clause, of the Fifth Amendment.22 And
even in the post-Lochner federalism jurisprudence, members of the Court have
cited Lochner to argue that judicial limits on the commerce clause would be
unmanageable.23
If we sift through American constitutional discourse, though, we find that
Lochner entails at least three different meanings, as mentioned earlier. First and
foremost, Lochner is synonymous with judicial activism. The focus here is on the
Lochner Court’s theory of constitutional adjudication, rather than on the sub-
stantive theory of political economy animating the Court’s jurisprudence.
6S. Choudhry
17 347 U.S. 483 (1954).
18 See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 65 (Harvard Univ.
Press 1980). However, some normative constitutional theorists embrace Lochner (see infra text
accompanying notes 61–66).
19 In the context of post-Lochner substantive due process, the Lochner era has been referred to as
“deviant” (Washington v. Glucksberg, 521 U.S. 702, 761 (1996) (Souter, J., concurring) ), “a
treacherous field” (Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977)), and even “threat-
ening . . .[to] the tranquility and stability of the Nation” (Griswold v. Connecticut, 381 U.S. 479,
522 (1965) (Black, J., dissenting)).
20 See, e.g., Justice Black’s dissent in Griswold, 381 U.S. at 514–15 and 522–24 (charging that the
recognition of the right to privacy under a “natural rights” theory of the due process clause
amounted to a reinstatement of Lochner-era jurisprudence, because it raised the specter of courts’
substituting their own judgments of the wisdom or fairness of public policies for that of legisla-
tures); Justice Rehnquist’s dissent in Roe v. Wade, 410 U.S. 113, 174 (1973) (use of compelling
state interest in due process clause of the Fourteenth Amendment requires courts to second-guess
legislatures in manner of Lochner Court); and Justice Souter’s concurrence in Glucksberg, 521 U.S.
at 755–89 (rejecting the Lochner Court’s “absolutist” protection of liberty under substantive due
process in favor of an approach that determines whether the legislature has arrived at a “reason-
able resolution of the contending positions,” and holding that the criminalization of assisted
suicide passed constitutional muster).
21 See, e.g., Griswold, 381 U.S. at 482 (recognition of a right to privacy does not require the court
to sit as “a super-legislature to determine the wisdom, need, and propriety of laws that touch eco-
nomic problems, business affairs, or social conditions” in the manner of the Lochner Court); Moore,
431 U.S. at 502–3 (distinguishing between the Lochner Court’s illegitimate “drawing [of ] arbitrary
lines” under substantive due process and the reliance on “history” and society’s “basic values”).
22 Eastern Enterprises v. Apfel, 524 U.S. 498, 537–38 (1998).
23 United States v. Lopez, 514 U.S. 549, 604–7 (1995) (Souter, J., dissenting).
Crudely put, the central claim is that the transgression of the judges of the
Lochner Court was that, under the guise of constitutional interpretation, they
did little more than to impose their own policy preferences on democratically
elected legislatures. The Lochner Court, for example, generally held that redress-
ing inequality of bargaining power in labor relations was an impermissible end
of governmental regulation.24 The interpretation of “liberty” to encompass
freedom of contract was also an important doctrinal move.25 But the principal
tool for the Lochner Court was substantive due process, a constitutional doctrine
that American courts fashioned out of the due process clauses of the Fifth and
Fourteenth amendments.26 Those clauses expressly provide for procedural pro-
tection to persons deprived of life, liberty, and property but were interpreted to
impose substantive limits on legislation that deprived persons of those inter-
ests.27 Moreover, as students of comparative federalism are well aware, a nar-
row interpretation of the commerce clause28 played an important supporting
role.29 The hero for opponents of Lochner’s judicial activism is Justice Oliver
Wendall Holmes, who famously argued in dissent that “the accident of our find-
ing certain opinions natural and familiar or novel and even shocking ought not
to conclude our judgment upon the question whether statutes embodying them
conflict with the Constitution.”30 The identification of Lochner with the consti-
tutionalization of judicial policy preferences is so complete that John Hart Ely
coined the term “Lochnering” to capture this idea.31 For a judge, “to Lochner” is
to commit a cardinal sin.
The Lochner era and comparative constitutionalism 7
24 See, e.g., Coppage v. Kansas, 236 U.S. 1 (1915). However, the Lochner Court did not apply this
principle uniformly. See, e.g., Holden v. Hardy, 169 U.S. 366 (1898); Muller v. Oregon, 208 U.S. 412
(1908).
25 Allgeyer, 165 U.S. 578 (1897).
26 U.S . CONST. amends. V, XIV.
27 See, e.g., Lochner, 198 U.S. 45 (1905) (U.S. CONST. amend. XIV); Adkins v. Children’s Hospital of
the District of Columbia, 261 U.S. 525 (1923) (U.S. CONST. amend. V). The origins of substantive
due process predate the Lochner era. See, e.g., Dred Scott v. Sanford, 60 U.S. 393 (1856).
28 U.S . CONST. art. I, § 8, cl. 3.
29 See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918); Carter v. Carter Coal Co., 298 U.S. 238
(1936); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
30 Lochner, 198 U.S. at 76 (emphasis added). This passage was quoted with approval by the Court
in Ferguson v. Skrupa, 372 U.S. 726, 729–30 (1963), where the Court went on to state:
The doctrine that prevailed in Lochner .. . and like cases—that due process authorizes
courts to hold laws unconstitutional when they believe the legislature has acted
unwisely—has long since been discarded. We have returned to the original constitutional
proposition that courts do not substitute their social and economic beliefs for the judgment
of legislative bodies, who are elected to enact laws.
31 John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 944 (1973).
The intellectual source of the critique of Lochner’s activism was Legal
Realism. A central Realist tenet is rule scepticism. The strong version of rule
scepticism claims that formal sources of law (texts, precedents) can never yield
determinate answers to particular questions that arise in individual cases
before courts of law because of the inherent ambiguities of legal language.
The weak version, by contrast, focuses instead on conflicts, gaps, and ambigu-
ities in the system of rules, raising in many cases the basic question of which
rule to apply. On either version, the Realists argued that legal forms create the
space in which judges may rely on their own preferences, while concealing this
possibility from public view by creating the illusion of logical necessity and
mechanical application. The result in the Lochner-era case law, as Karl
Llewellyn put it, was that “[t]he whole expansion of the due process clause has
been an enforcement of the majority’s ideal of government-as-it-should be.”32
The relevant judicial predilection was described variously as involving per-
sonal allegiances of class33 or substantive views on impugned public policies,
the former view being shared by Progressive historians critical of the Lochner
Court.34 At a descriptive level, the Realist critique culminated in an attack on
the distinction between adjudication and legislation and claimed that judges
had engaged in the latter under the guise of the former—the claim of “judicial
legislation.”35 And as Barry Friedman has vividly demonstrated, the work of
Realist academics tracked the broader public criticism of the Lochner Court.36
This strand of the Realist critique of Lochner is fundamentally a critique
regarding judicial method, and it produced a broad variety of responses.
Judicially, the Realists’ positive account of the phenomenology of adjudication
was married to a normative critique that the Lochner Court had usurped the
role of legislatures, which fare far better, both on the dimensions of institu-
tional competence and legitimacy, at determining the substance of socioeco-
nomic regulation. For example, the Lochner Court routinely second-guessed
legislative determinations of the costs and benefits of legislation, leading
8S. Choudhry
32 K. N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 40 (1934).
33 See, e.g., Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809,
845 (1935) (“judges usually reflect the attitudes of their own income class on social questions”).
34 See, e.g., ALFRED H. KELLY & WINFRED A. HARBISON, THE AMERICAN CONSTITUTION: ITS ORIGINS AND
DEVELOPMENT 515 (W. W. Norton 1948); CHARLES G. HAINES, THE REVIVAL OF NATURAL LAW CONCEPTS:
A STUDY OF THE ESTABLISHMENT AND OF THE INTERPRETATION OF LIMITS ON LEGISLATURES WITH SPECIAL
REFERENCE TO THE DEVELOPMENT OF CERTAIN PHASES OF AMERICAN CONSTITUTIONAL LAW 207, 230–31
(Russell & Russell 1965); ARNOLD M. PAU L, CONSERVATIVE CRISIS AND THE RULE OF LAW: ATTITUDES OF THE
BAR AND BENCH, 1887–1895 233–37 (Cornell Univ. Press 1960); ARTHUR S. MILLER, THE SUPREME
COURT AND AMERICAN CAPITALISM 58 (Free Press 1968).
35 BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 115 (Yale Univ. Press 1921) (describing
judicial legislation).
36 Barry Friedman, The History of the Countermajoritarian Difficulty, Part Three: The Lesson of
Lochner, 76 N.Y.U. L. REV. 1383 (2001).
Justice John Marshall Harlan, in his dissent in Lochner, to argue that the Court
lacked the competence to conclude that the health benefits of the challenged
law were outweighed by freedom of contract.37 Analytically, the move from
description to prescription proceeded through an appreciation that judicial
“policy analysis” entailed little more than the balancing of competing interests
(e.g., rights, welfare, administrative concerns) by courts, in a manner indistin-
guishable from that undertaken by legislatures. The culmination of the judi-
cial critique of Lochner was a radical restructuring of judicial review, which
initially adopted a stance of deference to all government measures not just the
socioeconomic policies that were the focus of Lochner-era activism, and predi-
cated judicial review on “a specific prohibition of the Constitution.”38 This atti-
tude of extreme deference was endorsed and defended by the Progressive
critics of the Lochner Court.39
Intellectually, the Realist critique of constitutional adjudication spawned a
variety of contradictory movements. In the postwar era, its principal home in
the United States has migrated from law schools to departments of political sci-
ence. To a generation of political scientists, the Lochner era shattered forever the
pretense of an adjudication not influenced or guided by judicial policy prefer-
ences. Lochner irreversibly and irredeemably destroyed the boundary between
legal and political decision making, thereby throwing into disrepute the very
project of constitutional judicial review. Most recently, the Realist torch has
been taken up by the behavioralist school of public law scholarship.40 These
scholars take as their premise the Realist assumption that judges’ political pref-
erences, not legal materials, are the best predictor of judicial outcomes, and
thus they largely devote their empirical work almost entirely to the former,
regarding the study of the latter, for the most part, as a fruitless distraction.41
The Lochner era and comparative constitutionalism 9
37 Lochner, 198 U.S. at 68–72. The framework employed by the Lochner Court actually made no
explicit reference to the weighing of the costs and benefits of government regulation. Rather, the
Court stated that what was required was the existence of a “real and substantial” (id. at 64) con-
nection between the objectives of a statute and the means chosen to vindicate those objectives,
known as rationality review. However, as Michael Perry has persuasively demonstrated, cost/ben-
efit analysis, as well as the failure of governments to opt for regulatory means that were less intru-
sive on freedom of contract, were relied on as reasons by the Lochner Court to find that laws failed
rationality review. MICHAEL PERRY, THE CONSTITUTION IN THE COURTS: LAW OR POLITICS? 162–64 (Oxford
Univ. Press 1994).
38 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).
39 LEARNED HAND, THE BILL OF RIGHTS (Harvard Univ. Press 1958); LEARNED HAND, Chief Justice Stone’s
Concept of the Judicial Function, in THE SPIRIT OF LIBERTY 201, 204 (Knopf 1952).
40 The leading text is JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL
MODEL (Cambridge Univ. Press 1993).
41 But see HAROLD J. SPAETH & JEFFREY A. SEGAL, MAJORITY RULE OR MINORITY WILL: ADHERENCE TO
PRECEDENT ON THE U. S. SUPREME COURT (Cambridge Univ. Press 1999).
In the legal academy, the Realist analysis of constitutional adjudication
sparked a variety of responses. One was Herbert Wechsler’s attempt to identify
normative criteria for judicial decision making “that can be framed and tested
as an exercise of reason and not merely as an act of willfulness or will,” and
that also delineate a distinction between legislation and adjudication, his so-
called “neutral principles.”42 Another set of responses can be grouped under
the heading of what James Fleming aptly terms the “flight from substance,”43
which, I think, refers to two different, but overlapping, strands of theoretical
work. One strand consists of accounts of judicial review that require courts to
secure the preconditions of representative or deliberative democracy. Ely’s
representation-reinforcing judicial review is the most famous example of a
theory of this sort.44 A second strand purports either to deny courts a role, or
to minimize their role, in judging the substantive merits of public policy deci-
sions. Well-known examples of these views are Henry Hart and Albert Sacks’s
Legal Process, with its emphasis on the appropriate institutional division of
labor between courts and legislatures;45 Alexander Bickel’s passive virtues,
principally designed to place constitutionally controversial questions before
politically accountable decision makers before the questions even come before
the courts;46 and Cass Sunstein’s judicial minimalism, aimed at limiting both
the breadth and depth of constitutional judgments.47
Finally, the self-proclaimed descendant of Realism is critical legal studies
(CLS). In dramatic contrast to behavioralist political science, CLS takes Realism
to task for not taking its descriptive project seriously enough, rather than for
taking it too seriously, as the behavioralists have concluded. Instead of termi-
nating the analysis in questions of policy, CLS strives to go further and to iden-
tify the conflicting ideologies within which particular policy preferences are
nested.48 Indeed, both Mark Tushnet and Duncan Kennedy argue that ideology
may operate as a real sociological or psychological constraint on judicial policy
10 S. Choudhry
42 Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 11, 16
(1959).
43 See generally James E. Fleming, Constructing the Substantive Constitution, 72 TEX. L. REV. 211
(1993); James E. Fleming, Fidelity, Basic Liberties and the Specter of Lochner, 41 WM. & MARY L. REV.
147 (1999).
44 ELY, supra note 18.
45 HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND
APPLICATION OF LAW (Foundation Press 1994).
46 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (Yale
Univ. Press, 2d ed. 1986).
47 ELY, supra note 18; CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT
(Harvard Univ. Press 1999).
48 Mark Tushnet, Critical Legal Studies and Constitutional Law: An Essay in Deconstruction, 36 STAN.
L. REV. 623 (1984).
choice, because it defines the range of acceptable and unacceptable argument,
with Kennedy going so far as to argue that ideology might actually prevent a
judge from realizing her preferred policy outcome.49 But in a deeply important
way, the CLS elaboration of the Realist analysis of adjudication did much more
than offer a new perspective on the initial critique of the Lochner Court’s
activism. It reflected a shift in the very nature of the question raised by
Lochner—away from the extent and sources of its alleged activism and toward
the identification of the ideology underlying its judgments.
To be sure, this shift predated the rise of CLS. The recasting of Lochner’s
error was, to a considerable extent, precipitated by a fundamental transforma-
tion in the pattern of judicial review in American constitutional law in the
1950s. After a period of deference, not only on matters of socioeconomic pol-
icy but also with respect to civil and political liberties, the Court departed from
the post–Lochner settlement and began to take an aggressive approach to the
protection of the latter. The first flagship decision of the Court’s renewed,
albeit selective, activism was Brown. This ruling was condemned by the
Progressive advocates of judicial deference on the ground that a principled
basis could not be found for the selective reinvigoration of judicial review that
conferred on some categories of rights a preferred status; the decision was seen
as heralding the rebirth of the Lochner era.50 As Morton Horowitz wrote, “lim-
iting property rights ...was achieved only through a kind of quid pro quo, in
effect an agreement on across-the-board constitutional disarmament of the
Supreme Court.”51 The challenge for Brown’s defenders, as Owen Fiss put it,
was how to “remain attached to Brown and its robust use of the judicial power
to further the ideal of equality, yet be happy that Lochner lies dead and
buried.”52 Over a decade later, the site of contestation had shifted to substan-
tive due process itself, which had survived outside the realm of economic
rights to protect rights to privacy and decisional autonomy. The case that pro-
voked the most controversy was Roe, with Ely famously equating that decision
with the worst excesses of the Lochner period and denouncing the Court for
“indulging in sheer acts of will, ramming its personal preferences down the
country’s throat.”53 As with Brown, Roe required a recasting of Lochner’s
wrongness.
The Lochner era and comparative constitutionalism 11
49 Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,
96 HARV. L. REV. 781, 825 (1983); DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION: FIN DE SIÈCLE
(Harvard Univ. Press 1997).
50 See, e.g., HAND, THE BILL OF RIGHTS, supra note 39.
51 HORWITZ, supra note 16, at 263.
52 FISS, supra note 16, at 21.
53 Ely, supra note 31, at 944. See also Richard A. Epstein, Substantive Due Process by Any Other Name:
The Abortion Cases, 1973 SUP. CT. REV. 159.
Herein, then, lies Lochner’s second meaning—economic libertarianism, or
what we would now term, in the context of economic globalization, neoliber-
alism. The focus of this line of criticism is not Lochner’s theory of constitu-
tional adjudication, but Lochner’s substantive political theory. This description
of the Lochner era posits that the doctrinal categories employed by the Lochner
Court reflected and furthered a normative commitment to the principles of
freedom of contract and property, and to strict limits on the scope of state
intervention in market relations. This is the philosophy of laissez-faire. To
reject Lochner, then, is to fight for the ability of the state to redress the
inequities and exploitation that arise from the unregulated marketplace.
Again, the principal villain is substantive due process, coupled with the inter-
pretation of the liberty interest in the due process clauses to encompass liberty
of contract. It was the libertarianism of Lochner that presented significant con-
stitutional obstacles to Roosevelt’s New Deal. And the component of the post-
Lochner constitutional settlement of greatest importance has been the decisive
and explicit repudiation of the aggressive protection of economic rights, dilut-
ing substantive due process protection by recasting rationality review so that
socioeconomic legislation almost always passes constitutional muster.54
For normative constitutional theorists who are critical of Lochner’s eco-
nomic libertarianism, Lochner’s error lay not in its judicial activism but rather
in the values with respect to which the Lochner Court was activist. Lawrence
Tribe, Michael Dorf, and Ronald Dworkin, for example, have argued that what
was wrong with the Lochner Court was not its appeal to political philosophy per
se to aid in the construction of the Bill of Rights, but rather its appeal to the
wrong political philosophy.55 Indeed, these theorists hold that substantive
value choice by the judiciary is not only desirable, but, in fact, an inescapable
feature of constitutional interpretation. Such a position reveals a distinctly
postrealist response to “[t]he dilemma of liberal legalism” created by the
revival of judicial activism under the Warren Court.56 Thus, these scholars
have argued that Lochner was wrong, while the post-Lochner Court’s substan-
tive due process jurisprudence (Griswold and Roe) is correct because it is based
on the right conceptions of individual freedom. The link between constitu-
tional and political theory is most fully worked out in the work of Dworkin,
who draws no firm distinction between the two enterprises. Viewed through
the lens of anti-Lochnerism, Dworkin’s claim is that Lochners mistake was
that it endorsed a libertarian, as opposed to an egalitarian, conception of
liberalism.
12 S. Choudhry
54 For a review of the rejection of economic due process, see Robert G. McCloskey, Economic Due
Process and the Supreme Court: An Exhumation and Reburial, 1962 SUP. CT. REV. 34.
55 LAURENCE H. TRIBE & MICHAEL C. DORF, ONREADING THE CONSTITUTION 66 (Harvard Univ. Press
1991); DWORKIN, supra note 7, at 82.
56 KENNEDY, supra note 49, at 113.
These normative constitutional theorists have been buttressed by recent
work in legal history. This is the so-called literature of “Lochner revisionism,”
whose basic claim is that the Lochner Court was acting not in furtherance of its
class or policy preferences but on the basis of a full-blown constitutional
theory with roots in the American constitutional tradition.57 Howard Gillman
best describes this tradition, depicting it as based on a distinction between class
or factional legislation, on the one hand, and legislation directed at promoting
public welfare, on the other. Thus understood, Lochner was premised on a com-
mitment not to freedom of contract, but to neutrality or equality before the
law. Doctrinally, according to Gillman, the focus was not on the infringement
of constitutionally protected rights of contract and property but on setting
limits on the exercise of public power (e.g., the “police power” of the states).
Sunstein’s normative twist on this historical argument is that the Lochner
Court defined neutrality incorrectly, by taking, as its baseline, common law
entitlements of property and contract without acknowledging the realist
insight that those rights themselves arise from state action, as opposed to being
prepolitical or natural.58
However, these are not the only types of antieconomic libertarian responses
to Lochner. One could reject both Lochner’s political theory and its theory of
constitutional adjudication. Indeed, Justice Felix Frankfurter, both a com-
mitted New Dealer and the leading advocate of judicial deference on the
Warren Court, situated himself with respect to Lochner in this way.59 For him,
inasmuch as Lochner and the modern privacy jurisprudence both rely on polit-
ical theories that do not come from the Constitution itself, Lochner and perhaps
even Roe would be regarded as mistakes. And these are not the only strange
bedfellows that the fear of Lochner has created. Thus, another group of those
opposing Lochner rejects its theory of constitutional adjudication but accepts
The Lochner era and comparative constitutionalism 13
57 For recent examples and discussions of Lochner revisionism, see Benedict, supra note 16; FISS,
supra note 16; GILLMAN, supra note 16; HORWITZ, supra note 16; Kens, supra note 16; Porter, supra
note 16; Rowe, supra note 16; WHITE, supra note 16, at 241–68. For earlier examples of Lochner
revisionism, see LOREN P. B ETH, THE DEVELOPMENT OF THE AMERICAN CONSTITUTION, 1877–1917
(Harper & Row 1971); David M. Gold, Redfield, Railroads, and Roots of “Laissez-Faire
Constitutionalism,” 27 AM. J. LEGAL HIST. 254 (1983); Alan Jones, Thomas M. Cooley and “Laissez-
Faire Constitutionalism”: A Reconsideration, 53 J. AM. HIST. 751 (1967); Charles W. McCurdy, Justice
Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez Faire
Constitutionalism, 1863–1897, 61 J. AM. HIST. 970 (1975). For similar arguments presented dur-
ing the Lochner era, see Max Lerner, The Supreme Court and American Capitalism, 42 YALE L.J. 668
(1933); Edward S. Corwin, Constitution v. Constitutional Theory, 19 AM. POL. SCI. REV. 290 (1925).
For a trenchant critique of Lochner revisionism, see Friedman, supra note 36.
58 Cass R. Sunstein, Lochner’s Legacy, 87 COLUM. L. REV. 873 (1987). Sunstein’s stance is antilibertar-
ian as well, while he seems here (unlike in later work) to endorse Lochner’s theory of adjudication.
59 See, e.g., his concurrence in American Fed’n of Labor v. American Sash & Door Co., 335 U.S. 538
(1949) (upholding a legislative ban on union security clauses in collective agreements).
its political theory. The leading example here is Robert Bork, who has written
that Lochner “lives in the law as the symbol, indeed the quintessence, of judi-
cial usurpation of power,”60 even though he shares, generally, the political
sentiments of the Lochner Court. For Bork as well, then, both Roe and Lochner
are wrong. Clearly, to be a full-blooded Lochner revivalist requires an accept-
ance of both Lochner’s political theory and its theory of constitutional adjudi-
cation. A relatively small group of scholars—Bernard Siegan,61 Richard
Epstein,62 and Steven Macedo63—fall into this last category. Indeed, Epstein is
the purest Lochner revivalist of them all, since he argues against the aggressive
protection of civil and political liberties—that is, Roe is wrong, but Lochner is
right—by giving priority to economic rights in the manner of the Lochner
Court.
Finally, Lochner is associated with the constitutional crisis of Roosevelt’s New
Deal and is synonymous with deep and prolonged conflict between courts and
democratically elected or accountable institutions. There is a familiar story
here.64 The Lochner era came to an end after a clash between the legislative and
executive branches, on the one hand, and the judicial branch, on the other,
over the constitutionality of the New Deal. Faced with the invalidation of a
series of federal New Deal statutes,65 and the prospect of the U.S. Supreme
Court striking down more, Roosevelt proposed his infamous “Court-packing
plan.” Under the plan, the membership of the Court could have been increased
so that the Lochner majority would eventually be outvoted. The plan was even-
tually rejected by the Senate. However, in the midst of the controversy over the
plan and before it was rejected, the Court fundamentally shifted direction and
abandoned much, if not all, of its Lochner-era jurisprudence.66
There is some historical dispute over whether the Court-packing plan was
the cause of the Court’s about face or whether the decision to overrule its ear-
lier case law had been made before the plan was announced, the latter being
14 S. Choudhry
60 ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 44 (Free Press
1990).
61 BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION (Univ. of Chicago Press 1980).
62 RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER O F EMINENT DOMAIN (Harvard Univ.
Press 1985).
63 STEPHEN MACEDO, THE NEW RIGHT V. THE CONSTITUTION (Cato Institute 1986).
64 For a good account, see WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL
REVOLUTION IN THE AGE OF ROOSEVELT (Oxford Univ. Press 1995).
65 See, e.g., Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A. L. A. Schechter Poultry Corp. v.
United States, 295 U.S. 495 (1935); Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555
(1935); Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935); United States v. Butler, 297 U.S. 1
(1936); Carter v. Carter Coal Co., 298 U.S. 238 (1936).
66 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1 (1937).
consistent with a “legalist” account that explains the “switch in time” as
a consequence of an evolution of legal doctrine that had begun prior to the
Court-packing crisis. Although initial analyses viewed the judgments as a
direct response to the plan,67 Frankfurter produced documentary proof for the
latter position,68 the authenticity of which, however, has recently been chal-
lenged.69 As Friedman notes, “[t]his question is probably unanswerable.”70
Whatever the merits of this historians’ debate, the constitutional crisis of the
1930s was a searing experience, and it is an important part of the image of the
Lochner Court in the American constitutional imagination. Although not
framed by reference to the events of 1937, Bickel’s passive virtues were clearly
designed not only to blunt the countermajoritarian nature of judicial review
but also to protect a Court that was only beginning to rebuild its institutional
legitimacy at a time when the resistance to Brown raised the specter of mass
lawlessness. Writing against the background of the same events, Robert
McCloskey approved of the abandonment of economic due process not on the
basis of some coherent normative constitutional theory regarding the unim-
portance of economic rights, or as a result of limited judicial competence with
respect to economic policy but because of the need for the Court not to squan-
der its diminished political capital after “the delusions of grandeur that
prompted the judicial crusade against the New Deal.”71 Indeed, the link
between Lochner and constitutional crisis has been expressly made by members
of the Court.72 For the Court to repeat the mistakes of the Lochner era is to flirt
with institutional disaster.
3. The Lochner era in Canadian constitutional discourse
3.1. Due process
The Lochner era and its multilayered legacy loom large in the Canadian
constitutional imagination. Not surprisingly, given the centrality of substan-
tive due process to the jurisprudence of the Lochner Court, the principal site of
The Lochner era and comparative constitutionalism 15
67 See, e.g., MERLO JOHN PUSEY, THE SUPREME COURT CRISIS (Macmillan 1937).
68 Felix Frankfurter, Mr. Justice Roberts, 104 U. PA. L. REV. 311 (1955).
69 Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620 (1994).
70 Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four: Law’s Politics, 148 U.
PA. L. REV. 971, 976 (2000).
71 McCloskey, supra note 54, at 60.
72 In National League of Cities v. Usery, 426 U.S. 833, 868 (1976), in warning his colleagues
against imposing restraints on the commerce clause, Justice Brennan stated that the jurisprudence
of the Lochner Court “provoked a constitutional crisis” that was “averted” by the Court’s reversal
of direction. The joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833, 862 (1992) also referred to the Court-packing crisis and the institutional damage that it
did to the Court.
engagement has been the Canadian analogue of the due process clause,
section 7 of the Charter.73 As Michael Stephens has persuasively demon-
strated, the drafting of that provision occurred “very much in the shadow of
American constitutional history.”74 Moreover, the subsequent interpretation
of that provision evinces a similar engagement with America’s constitutional
past. Upon close examination, both the drafting history of section 7 and its
interpretation have invoked the various meanings of Lochner’s legacy, drawing
different lessons from the Lochner era for Canadian constitutionalism.75
3.1.1. Constitutional drafting
The earliest proposals for the Charter demonstrated both an awareness of the
Lochner era and the challenges it posed to the drafting of a constitutional bill of
rights. The origins of the Charter project can be traced to a white paper written
by Pierre Trudeau, published in 1968.76 In examining the merits of a due
process clause for the Canadian Constitution, Trudeau discussed the American
experience with substantive due process in some detail.77 His emphasis was on
the Lochner period of substantive due process, and his analysis negative, refer-
ring with obvious disapproval to “minimum wage legislation, laws against child
labour, and hours-of-work statutes” as examples of laws struck down by the U.S.
Supreme Court and to the use of substantive due process by courts “to review
public utility rates set by legislatures or regulatory agencies.”78 But Trudeau’s
16 S. Choudhry
73 Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accordance with the principles of funda-
mental justice.” Charter, supra note 10, § 7.
74 K. Michael Stephens, Fidelity to Fundamental Justice: An Originalist Construction of Section 7 of the
Canadian Charter of Rights and Freedoms, 13 NATLJ. CONST. L. 183, 218 (2002).
75 The view that section 7 of the Charter was drafted to avoid the dangers of Lochner is supported
by other scholars. IAN GREENE, THE CHARTER OF RIGHTS 146 (James Lorimer & Co. 1989); Robert
E. Hawkins, Interpretivism and Sections 7 & 15 of the Canadian Charter of Rights and Freedoms, 22
OTTAWA L. REV. 275, 290 (1990); Peter W. Hogg, Canada’s New Charter of Rights, 32 AM. J. COMP. L.
283, 290 (1984); Alexander Alvaro, Why Property Rights Were Excluded from the Canadian Charter
of Rights and Freedoms, 24 CAN. J. POL. SCI. 309, 318 (1991); PETER W. H OGG, CONSTITUTIONAL LAW OF
CANADA 655 (Carswell, 2d ed. 1985); PETER W. H OGG, CONSTITUTIONAL LAW OF CANADA 882–83, 886
(Carswell, 3d ed. 1992) (the drafting of section 7 was “intended to banish Lochner from Canada”);
John B. Laskin, The Canadian Constitutional Proposals, 1981 PUB. L. 340, 343 n.12; Jean McBean,
The Implications of Entrenching Property Rights in Section 7 of the Charter of Rights, 26 ALTA. L. REV.
548, 568 (1988); PATRICK J. MONAHAN, POLITICS AND THE CONSTITUTION: THE CHARTER, FEDERALISM AND
THE SUPREME COURT OF CANADA 76 (Carswell 1987).
76 PIERRE E. TRUDEAU, CAN. DEPTOFJUSTICE, A CANADIAN CHARTER OF HUMAN RIGHTS (Queen’s Printer
1968) [hereinafter A CANADIAN CHARTER].
77 Id. at 19–20 (noting that “due process of law” had been given both a procedural and “a sub-
stantive interpretation,” and that the latter had been relied on to scrutinize “the propriety of all
legislation”).
78 Id. at 20.
stance on the other strands of substantive due process was much more positive.
Thus, he stated that “[i]n examining American experience with ‘due process’ it
appears that the guarantee as applied to protection of ‘life’ and personal ‘liberty’
has been generally satisfactory, whereas substantive due process as applied to
‘liberty’ of contract and to ‘property’ has created the most controversy.”79
The desire to immunize Canada’s Charter from the dangers of Lochner gave
rise to two different sets of textual proposals, each taking a different view of
what parts of Lochner’s legacy were to be avoided. The first set of proposals,
which originated in Trudeau’s 1968 discussion paper, identified the source of
difficulty not as substantive due process per se, but, rather, with its application
to economic rights, and accordingly sought to preempt the Lochnerization of
the Charter by altering the list of interests protected by due process. Trudeau
suggested that while “‘life,’ personal ‘liberty,’ and ‘security of the person’
would be contained in a “due process” clause, rights of contract and property
would not. The first draft of the Charter, dated February 1969, therefore pro-
posed the entrenchment of a provision that protected “the right of the indi-
vidual to life, and the liberty and security of the person, and the right not to be
deprived thereof except by due process of law”80 but excluded “property” from
the ambit of due process protection, hence removing a potential source of
economic substantive due process. Moreover, the inclusion of “security” and
“of the person” was designed to alter the complexion of liberty, shifting the
focus away from economic liberty and freedom of contract and toward corpo-
real interests, such as bodily integrity.
An explicit link between these textual choices and the desire to avoid
Lochner’s libertarianism was made clear by Barry Strayer, then-director of con-
stitutional review at the Privy Council Office, who had primary responsibility
for drafting the 1969 constitutional proposals. In testimony before the Special
Joint Committee of the Senate and the House of Commons on the Constitution
(the Molgat-MacGuigan Committee) in 1970, Strayer repeated the govern-
ment’s assessment of Lochner-era jurisprudence:
“Due process” has created problems, particularly under the American
Constitution in relation to liberty and property. It has been used at times
by the courts to strike down legislation which the majority of Americans
apparently regard as being socially desirable. This was particularly true
in the first part of the century up until the mid nineteen-thirties.
If one analyzes those cases, it appears that a good deal of the problem
has been created by the concept of what is known as substantive due
process. The idea [is] that every law can be tested by the court to see
The Lochner era and comparative constitutionalism 17
79 Id.
80 PIERRE E. TRUDEAU, GOVTOFCAN., CONSTITUTION AND THE PEOPLE OF CANADA: ANAPPROACH TO THE
OBJECTIVES OF CONFEDERATION, THE RIGHTS OF PEOPLE AND THE INSTITUTIONS OF GOVERNMENT 52, § 1(e)
(Queen’s Printer 1969) [hereinafter CONSTITUTION AND THE PEOPLE OF CANADA].
whether it meets certain standards of fairness and that particularly the
property rights are adequately protected and the liberty of contracts is
adequately protected. It was felt that this was one of the most frequently
criticized areas of the American constitutional guarantees and that this
was something which could be improved upon in the draft.81
He went on to explain that the omission of property and the inclusion of secu-
rity of the person, in the federal draft, was a deliberate strategy to avoid
Lochner-era jurisprudence:
The change attaches the concept of liberty to that of security and relates
it to the person. This avoids the problem of the interpretation of liberty
which under the American Constitution has been interpreted to include
liberty of contract and has been used to strike down legislation which
provided for things such as minimum wages and protection against the
employment of child labour and this sort of thing.82
There is good reason to believe that Trudeau’s decision to incorporate the
phrase “due process” in the 1969 draft did not reflect a desire to exclude sub-
stantive due process entirely. The 1978 federal draft was largely identical and
explicitly referred to the desire to avoid the economic limb, but not the pri-
vacy/decisional autonomy limb, of substantive due process as the rationale
behind the wording of these provisions.83 Again, the federal government indi-
cated that the prospect of a Canadian jurisprudence of noneconomic sub-
stantive due process “would not necessarily be an undesirable development”
because “[w]hen one is dealing with the fundamental rights of life, liberty
and security of the individual, it is perhaps appropriate for the courts to con-
cern themselves not only with the procedural fairness of the law but also with
its substantive justness.”84 The use of the language of “due process”
18 S. Choudhry
81 3 CANADA, SPECIAL JOINT COMMITTEE OF THE SENATE AND OF THE HOUSE OF COMMONS ON THE CONSTITUTION
OF CANADA, MINUTES OF PROCEEDINGS AND EVIDENCE OF THE SPECIAL JOINT COMMITTEE OF THE SENATE AND
HOUSE OF COMMONS ON THE CONSTITUTION OF CANADA 15 (June 11, 1970) (Queen’s Printer 1970)
[hereinafter MOLGAT-MACGUIGAN COMMITTEE MINUTES OF PROCEEDINGS].
82 3 id. at 16 (June 11, 1970).
83 The complete provision can be found in the Constitutional Amendment Bill (Bill C-60) cl. 6
(June 20, 1978), reprinted in 1 ANNE F. BAYEFSKY, CANADASCONSTITUTION ACT 1982 & AMENDMENTS: A
DOCUMENTARY HISTORY 340, 347–48 (McGraw-Hill Ryerson 1989), and was worded as follows:
It is accordingly declared that, in Canada, every individual shall enjoy and continue to
enjoy the following fundamental rights and freedoms:. .. the right of the individual to life,
and to the liberty and security of his or her person, and the right not to be deprived thereof
except by due process of law....
84 Otto E. Lang, Constitutional Reform: Canadian Charter of Rights and Freedoms (Aug. 1978),
Address Before Federal-Provincial First Minister’s Conference, Ottawa, Ontario (Oct. 30–Nov. 1,
1978), reprinted in 1 BAYEFSKY, supra note 83, at 499, 504.
remained in the numerous federal drafts of the Charter until August 22,
1980.85
However, under this first set of proposals, the deliberate omission of prop-
erty from the due process clause did not mean that those interests were to be
left entirely without constitutional protection. Rather, Trudeau’s goal was to
accord constitutional protection to property interests in a manner that did not
open the door to the constitutionalization of laissez-faire. In his 1968 discus-
sion paper, Trudeau had suggested that “specific guarantees of procedural fair-
ness” for “any interference with contracts or property” should be contained
outside of the due process clause.86 The 1969 draft of the Charter sought to do
this by guaranteeing “the right of the individual to the enjoyment of property,
and the right not to be deprived thereof except according to law,” a degree of
constitutional protection thought to be strictly procedural and secured, ironi-
cally, by removing any reference to process.87 Again, the desire to avoid eco-
nomic substantive due process through this formulation was made explicit by
Strayer in his testimony before the Molgat-MacGuigan Committee:
You will notice that here the guarantee is put in terms of “except accord-
ing to law” rather than “except by due process of law.” This again was to
avoid the problem of substantive due process, as the American constitu-
tional lawyers call it, to avoid some sort of external test of fairness being
applied to legislation rather than allowing the legislative body to decide
on questions of policy...
[T]he American courts have reviewed decisions of bodies which fixed
rates for public utilities and have decided whether the rates which the
regulating commission has set are sufficiently compensatory for the util-
ity. The court has taken upon itself the power to decide whether the util-
ity is earning enough money. That is an example of substantive due
process, and that is the sort of thing which it was hoped could be avoided
in this draft.88
The 1978 federal proposals altered the protection for property interests some-
what, guaranteeing “the right of the individual to the use and enjoyment of
The Lochner era and comparative constitutionalism 19
85 See, e.g., Federal Government’s Discussion Draft, Jan. 8, 1979, § 10(1), reprinted in 2 BAYEFSKY,
supra note 83, at 537, 538; Federal Government’s Discussion Draft, Oct. 17, 1979, § 6(1), reprinted
in 2 id. at 574, 575; Federal Government’s Discussion Draft, July 4, 1980, § 6(1), reprinted in
2id. at 599, 600; Federal Government’s Discussion Draft, Aug. 22, 1980, § 6, reprinted in 2 id.
at 669.
86 TRUDEAU, A CANADIAN CHARTER, supra note 76, at 20.
87 TRUDEAU, CONSTITUTION AND THE PEOPLE OF CANADA, supra note 80, at 52, § 1(f ). Interestingly, con-
tracts were not accorded any constitutional protection, perhaps because the inclusion of property
was regarded as sufficient.
88 3 MOLGAT-MACGUIGAN COMMITTEE MINUTES OF PROCEEDINGS, supra note 81, at 16–17 (June 11,
1970).
property, and the right not to be deprived thereof except in accordance with
law.”89 However, this provision was also thought to confer strictly procedural
protection. Walter Tarnopolsky, a leading constitutional scholar, explained to
the 1978 special joint committee on the Constitution of Canada (the
Lamontagne-MacGuigan Committee) the probable motivation and effect of
this provision, as well as its relationship to the due process clause. He first
described the fear of Lochner among both academics and provincial officials:
[T]here has been continuing fear—and I think most of the leading aca-
demics and others who oppose a written bill of rights in Canada do so on
the basis that they fear the possibility of the Supreme Court introducing the
substantive due process interpretation which the American Supreme Court
did. A large number of both academic opinion [sic] and other provincial
officials who have opposed a written bill of rights have pointed to this as a
great danger; so this is one of the reasons why I think the property clause
was separated from the life and liberty clause with respect to due process of
law.90
In elaborating upon this “danger,” Tarnopolsky focused on the economic
dimension of substantive due process:
[T]he interpretation of the American Supreme Court, starting in about
the 1890s and going down to a decision in 1937, was essentially that if
you have the right of the individual to life, liberty and property, and the
20 S. Choudhry
89 The Constitutional Amendment Bill (Bill C-60) § 6 (June 20, 1978), reprinted in 1 BAYEFSKY,
supra note 83, at 348.
90 12 CANADA, SPECIAL JOINT COMMITTEE OF THE SENATE AND OF THE HOUSE OF COMMONS ON THE
CONSTITUTION OF CANADA, MINUTES OF PROCEEDINGS AND EVIDENCE OF THE SPECIAL JOINT COMMITTEE OF THE
SENATE AND HOUSE OF COMMONS ON THE CONSTITUTION OF CANADA 39 (Sept. 12, 1978) (Queen’s Printer
1978) [hereinafter LAMONTAGNE-MACGUIGAN COMMITTEE MINUTES OF PROCEEDINGS]. Tarnopolsky
repeated this description of the opposition to the Charter shortly after its enactment, again invok-
ing Lochner. He wrote that “most of the opposition to the adoption of . .. Prime Minister Trudeau’s
proposals to entrench a Charter binding on Parliament and the Legislatures in the written part of
our constitution, was based upon the distrust of the judiciary. The fear seemed to be that the Supreme
Court would become activist and conservative like the U.S. Supreme Court from 1890 to 1937,
introducing a wide substantive due process interpretation.. . .” Walter S. Tarnopolsky, The
Constitution and Human Rights, in AND NOONE CHEERED: FEDERALISM, DEMOCRACY AND THE CONSTITUTION
ACT 261, 277 (Keith Banting & Richard Simeon eds., Methuen 1983) (emphasis in original); see
also Walter S. Tarnopolsky, The Historical and Constitutional Context of the Proposed Canadian Charter
of Rights and Freedoms, 44 L. & CONTEMP. PROBS., Summer 1998, at 169, 192. A good example of
this sort of opposition can be found in the brief submitted by Douglas Schmeiser to the Molgat-
MacGuigan Committee, see 49 MOLGAT-MACGUIGAN COMMITTEE MINUTES OF PROCEEDINGS, supra note
81, at 28–57 (Feb. 23, 1971), in which both the activist and libertarian critiques of Lochner figure
prominently. Thus, as his example of “Decisions based on Purely Personal Values,” Schmeiser gives
Lochner. 49 id. at 34. Moreover, his lengthy list of examples of “Bad Judicial Decisions” (a term he
does not define) is dominated by Lochner-era case law. 49 id. at 36–39. Interestingly, indicating the
extent to which the Lochner era was part of the common understandings underlying the process
of constitutional reform, he assumes a great deal of familiarity with the New Deal litigation, stat-
ing that those cases “are almost too recent and too familiar to justify rehearsal.” 49 id. at 38.
right not to be deprived thereof except by due process of law, it is an
infringement of freedom of contract and an infringement of the right to
property for a legislature to provide, for example, that you cannot con-
tract for a wage scale lower than the minimum wage scale. Minimum
wage laws clearly contravene, to some extent, freedom of contract. . . .
And it is the same thing with maximum hours and the same thing with
restrictions on child labour. All of the various social and economic wel-
fare provisions were held invalid on the basis that they contravened a
substantive interpretation of the due process clause.91
The second set of proposals sought to avoid both limbs of substantive due
process by removing references to “property” and “due process” and replacing
the latter with language that unambiguously connoted strictly procedural pro-
tection for the interests enumerated therein. Tarnopolsky put forth this idea in
testimony before the Molgat-MacGuigan Committee in 1970, proposing “rules of
natural justice” or “rules of fundamental justice” as alternatives to “due process.”
Although he was doubtful that the Canadian judiciary would give a substantive
interpretation to a “due process” provision, Tarnopolsky, nonetheless, proposed
this language to make the reference to process “much more explicit.”92 This sug-
gestion was incorporated into the Molgat-MacGuigan Committee’s report,
handed down in 1972, which suggested that the Charter guarantee “[t]he right
of the individual person to life, liberty and security of the person, and the right
not to be deprived thereof except in accordance with the principles of fundamen-
tal justice,”93 a phrase that again, ironically, makes no explicit reference to proce-
dure.94 The Committee referred to the Lochner era in support of this proposal:
We should like to avoid the use of the phrase “due process of law”
entirely...because of its unfortunate interpretation in the United States
The Lochner era and comparative constitutionalism 21
91 12 LAMONTAGNE-MACGUIGAN COMMITTEE MINUTES OF PROCEEDINGS, supra note 90, at 39 (Sept. 12,
1978). The Lamontagne-MacGuigan Committee ultimately suggested that property rights not be
deprived except according to “due process of law,” because such language would provide “more
satisfactory [i.e., secure] protection.” 20 id. at 11 (Oct. 10, 1978).
92 8 MOLGAT-MACGUIGAN COMMITTEE MINUTES OF PROCEEDINGS, supra note 81, at 19–20 (Nov. 5, 1970).
Tarnopolsky repeated this position later on, both in his academic writings (W. S. Tarnopolsky, A
Bill of Rights and Future Constitutional Change, 57 CAN. B. REV. 626, 632 (1979) ) and in testimony
on behalf of the Canadian Civil Liberties Association before the Special Committee of the Senate
and of the House of Commons on the Constitution of Canada (the Hays-Joyal Committee) in 1980
(CANADA, SPECIAL JOINT COMMITTEE OF THE SENATE AND OF THE HOUSE OF COMMONS ON THE CONSTITUTION OF
CANADA, MINUTES OF PROCEEDINGS AND EVIDENCE OF THE SPECIAL JOINT COMMITTEE OF THE SENATE AND HOUSE
OF COMMONS ON THE CONSTITUTION OF CANADA 7:21 (Nov. 18, 1980) (Queen’s Printer 1980) [here-
inafter HAYS -JOYAL COMMITTEE MINUTES OF PROCEEDINGS]).
93 CANADA, SPECIAL JOINT COMMITTEE OF THE SENATE AND OF THE HOUSE OF COMMONS ON THE CONSTITUTION
OF CANADA, FINAL REPORT 20 (Information Canada 1972) [hereinafter MOLGAT-MACGUIGAN
COMMITTEE REPORT].
94 The term does appear in a statutory rights–protecting document binding the federal govern-
ment only, the Canadian Bill of Rights, ch. 44, 1960 S.C. 519 (Can.), reprinted in R.S.C. app. III
under substantive due process. At its worst, this gave judges leeway to
substitute their socio-economic views for those of legislatures.95
Thus, property received downgraded protection in a separate provision that
would have enshrined “[t]he right of the individual person to the enjoyment of
property, and the right not to be deprived thereof except in accordance with
the public good and for just compensation” because the committee thought
this language would “allow the maximum latitude for economic decisions by
legislatures.”96 But as the federal government noted in its reaction to the
report, the provision could have invited the courts to second-guess the pro-
priety of legislation affecting property rights and, hence, would have
offered unsure protection against the rise of a Canadian version of Lochner’s
libertarianism.97
In the end, a combination of both sets of textual proposals prevailed.
During the summer of 1980, the federal government engaged in constitu-
tional negotiations with provincial governments, and it came under heavy
pressure to drop “due process” from the Charter. John Whyte, the deputy attor-
ney general of Saskatchewan and a constitutional scholar who participated in
these discussions, describes in detail how the ghost of Lochner was repeatedly
invoked by lawyers representing the provincial governments, to great effect:
Lawyers representing some of the eleven governments raised the con-
cern that courts would read this phrase as guaranteeing substantive due
22 S. Choudhry
(1985) (Can.), which came into force in 1960. Section 2(e) guarantees to a person “the right to a
fair hearing in accordance with the principles of fundamental justice for the determination of his
rights and obligations.” Section 2(e) was not specifically referred to by the Molgat-MacGuigan
Committee in its final report in 1972 (MOLGAT-MACGUIGAN COMMITTEE REPORT, supra note 93), most
likely because the provision had not yet been definitely interpreted by the Supreme Court of
Canada. But when the Supreme Court did consider section 2(e), in R. v. Duke, [1972] S.C.R. 917
(Can.), it gave the term a strictly procedural interpretation. In 1981, testifying before the Hays-
Joyal Committee, federal officials relied on Duke as evidence that section 7 of the Charter would be
interpreted in the same way. Testimony of Fred Jordan, Senior Counsel, Public Law, Department of
Justice, 46 HAYS -JOYAL COMMITTEE MINUTES OF PROCEEDINGS, supra note 92, at 32–33 (Jan. 27, 1981).
However, in its first case on the interpretation of section 7, Reference Re Section 94(2) of the
Motor Vehicle Act (B.C.), [1985] 2S.C.R. 486 (Can.), the Supreme Court distinguished Duke, on
the grounds that section 2(e)’s explicit reference to “a fair hearing” mandated a strictly procedural
interpretation for “the principles of fundamental justice” under the Canadian Bill of Rights,
whereas the absence of such language in section 7 meant that Duke was of no assistance in inter-
preting the Charter.
95 MOLGAT-MACGUIGAN COMMITTEE REPORT, supra note 93, at 19.
96 Id. at 20.
97 Lang, supra note 84, at 505. Tarnopolsky, reacting not to this specific proposal but the more
general idea of providing some level of substantive protection for property rights, expressed the
fear that any such clause would give rise to a bevy of constitutional challenges; he, therefore,
recommended that property receive only procedural protection, leaving propertied interests to
protect themselves through the legislative process. Tarnopolsky, supra note 92, at 632–33.
process. . . .These lawyers could point to the history of the development
of substantive due process in American constitutional law as a foreshad-
owing of the development of a similar expansion of judicial review in
Canada beyond what would be necessary for the constitutional protec-
tion of minimal procedural standards. Indeed, that history might lead
them to apprehend what they consider to be the most sinister form of
review of all—review by courts of the ethical propriety of legislation.
This somewhat traumatized reading of “due process of law” was fueled
by reference to American cases from the first three decades of this cen-
tury....In particular, government lawyers brought forth Lochner v.
New York to perform its totemic task; the mere mention of the name of
the case, which invalidated maximum hours of labour legislation, drove
all decent democrats scurrying for language that raised no possibility of
substantive review.98
The provincial representations were successful. In August 1980, the federal
government submitted for consideration what ultimately became the final ver-
sion of the Canadian due process clause, wherein the phrase “due process” had
been replaced by “the principles of fundamental justice.” The drafting history
shows how this choice was driven by an intention to avoid substantive due
process altogether, not merely its economic limb, and to confine section 7 to
strictly procedural protection. The best evidence of this intention is the testi-
mony of Strayer, by this time assistant deputy minister of the Department of
Justice, to the Special Joint Committee of the Senate and of the House of
Commons on the Constitution of Canada (the Hays-Joyal Committee) in 1980.
Strayer had primary responsibility for drafting the Charter, and he voiced the
imperative to avoid the American experience with substantive due process in its
entirety, with reference to both the economic and noneconomic aspects of the
jurisprudence:
[I]t was our belief that the words “fundamental justice” would cover the
same thing as what is called procedural due process, that is the meaning
of due process in relation to requiring fair procedure. However, it in our
view does not cover the concept of what is called substantive due
process, which would impose substantive requirements as to the policy of
the law in question. This has most clearly been demonstrated in the
United States in the area of property, but also in other areas such as the
right to life. The term due process has been given the broader concept of
meaning both the procedure and substance. Natural justice or funda-
mental justice in our view does not go beyond the procedural require-
ments of fairness. 99
The Lochner era and comparative constitutionalism 23
98 John D. Whyte, Fundamental Justice: The Scope and Application of Section 7 of the Charter, 13 MAN.
L.J. 455, 456–57 (1983).
99 46 HAYS -JOYAL COMMITTEE MINUTES OF PROCEEDINGS, supra note 92, at 32.
He reiterated that the concern behind the wording of section 7 was to avoid all
aspects of substantive due process, referring to the desire to avoid substantive
review of infringements of rights of contract and property,100 capital punish-
ment,101 abortion,102 and contraception.103 However, it is noteworthy that he
gave greater emphasis to the risk of constitutionalizing laissez-faire. Thus, in
defending the choice of “fundamental justice” over “due process” he warned
members of the committee that “security” could be interpreted broadly to
encompass “matters of a...contractual or proprietary nature,”104 and that
‘[l]iberty’ at one time in the history of American jurisprudence had been
interpreted to cover such things as liberty of contract; and this has been used as
the basis for striking down minimum wage laws, because it [sic] contravened
liberty of contract.”105 The list of protected interests in the Canadian due
process clause omits property, and instead consists of “life, liberty and security
of the person.” Indeed, property interests are textually absent from the Charter,
and as a consequence are without direct constitutional protection.106
24 S. Choudhry
100 46 id. at 32, 33, 36, 37.
101 46 id. at 33.
102 46 id. at 33, 43.
103 46 id. at 43.
104 46 id. at 33.
105 46 id. at 37, 41–42.
106 The ultimate omission of any express constitutional protection for property rights is a complex
story. Until January 8, 1979, as discussed above, the federal proposals called for strictly procedural
protection for property. However, the federal government then recast the proposed property clause
significantly, by imposing substantive limits on the ability of governments to violate property
rights (Federal Government’s Discussion Draft, Jan. 8, 1979, § 13, reprinted in 2 BAYEFSKY, supra
note 83, at 539–40). Faced with strong opposition from provincial governments (ROY ROMANOW ET AL.,
CANADA ...N
OTWITHSTANDING: THE MAKING OF THE CONSTITUTION, 1976–1982, 44 (Carswell/Methuen
1984) ), the property clause was dropped by the federal government in the Federal Government’s
Discussion Draft, Oct. 17, 1979, reprinted in 2 BAYEFSKY, supra note 83, at 574–78. A revised prop-
erty clause reemerged in the federal draft in the summer of 1980 (§ 9 of the Federal Government’s
Discussion Draft, July 4, 1980, 2 id. at 599, 601), but again facing strong opposition from the
provinces (ROMANOW ET AL., supra note 106, at 77), the property clause was finally dropped in the
Federal Government’s Discussion Draft, Aug. 22, 1980, reprinted in 2 BAYEFSKY, supra note 83, at
669–73. The provinces feared that a Charter property right could impair provincial economic poli-
cies, such as restrictions on land ownership by nonresidents and the nationalization of certain
resource industries, and they raised the more general concern that since the provinces held
primary jurisdiction over the regulation of private property (CAN. CONST. (Constitution Act, 1867),
§ 92(13) ), the entrenchment of property rights would have the greatest impact on the provinces
(Alvaro, supra note 75, at 319). Although they had been omitted from the federal draft of the
Charter, property rights became the object of intense dispute during the proceedings of the
Hays-Joyal Committee in 1980 and 1981. Organizations appearing before the committee criticized
the Charter for failing to protect property rights. See, e.g., 27 HAY S-JOYAL COMMITTEE MINUTES OF
PROCEEDINGS, supra note 92, at 40–41 (Alberta Chamber of Commerce); 33 id. at 134–35
Since 1982, there have been several attempts to amend the Charter to pro-
tect property rights.107 Opponents of these various efforts from across the
political spectrum invoked the ghost of Lochner. One Liberal Member of
Parliament (MP) stated, “[o]ne also has to look at what happened in the United
States...We know that the Bill of Rights was used for many years to prevent
the stoppage of child labour. It was also used to prevent groups from unioniz-
ing. It was also deemed that the establishment of minimum wage laws could
infringe upon the Bill of Rights.”108 A Progressive Conservative (PC) MP tied
The Lochner era and comparative constitutionalism 25
(Business Council on National Issues); 15 id. at 9 (Canadian Bar Association). Although the fed-
eral government initially held steadfast to its refusal to protect property rights (e.g., Testimony of
Jean Chrétien, in 4 HAYS -JOYAL COMMITTEE MINUTES OF PROCEEDINGS, supra note 92, at 86), a shift in
the dynamic of the proceedings came when the acting minister of justice, Robert Kaplan, suddenly
agreed to accept an amendment incorporating property rights in response to a question from a
Progressive Conservative (PC) member of the Committee, 43 id. at 49. This unannounced shift in
government policy was staged; Trudeau had come under pressure to include property rights from
members of his cabinet and had agreed to do so if the proposal came from the opposition (ROBERT
SHEPPARD & MICHAEL VALPY, THE NATIONAL DEAL: THE FIGHT FOR A CANADIAN CONSTITUTION 143 (Fleet
Books 1982) ). However, the Liberal government came under immediate and intense pressure to
withdraw its support for the amendment. The New Democratic Party (NDP) publicly announced
that it would withdraw its support for the Charter if property rights received constitutional pro-
tection (NDP May Withdraw Support for PM’s Plan, TORONTO STAR, Jan. 26, 1981, at A1). As well,
the NDP government of Saskatchewan, in private negotiations, demanded the omission of prop-
erty rights in exchange for agreement on other issues, including proposed amendments on natu-
ral resources (ROMANOW ET AL., supra note 106, at 126). Minister of Justice Jean Chrétien
accordingly withdrew the government’s support for the amendment (45 HAYS -JOYAL COMMITTEE
MINUTES OF PROCEEDINGS, supra note 92, at 9–10).
107 While in opposition, backbench MPs of the PC party introduced a resolution in the House of
Commons in 1983 to amend the Charter to add property rights. HOUSE OF COMMONS DEBATES 24996
(April 29, 1983); motion defeated id. at 25052–53 (May 2, 1983). Once the PC party formed the
government in 1984, backbench MPs introduced further resolutions in 1984, twice in 1985, and
in 1987, none of which was put to a vote. HOUSE OF COMMONS DEBATES 979 (Dec. 6, 1984); HOUSE OF
COMMONS DEBATES 1933 (Feb. 1, 1985); HOUSE OF COMMONS DEBATES 5163 (May 28, 1985). The
1987 resolution was adopted by the House of Commons in 1988 but the federal government never
acted on it. HOUSE OF COMMONS DEBATES 10015 (Oct. 15, 1987). There has been activity at the
provincial level as well. British Columbia, New Brunswick, and Ontario passed resolutions to
amend the Charter to entrench property rights in 1982, 1983, and 1986, respectively. DEBATES OF
THE LEGISLATIVE ASSEMBLY OF BRITISH COLUMBIA 9309 (Sept. 21, 1982), JOURNALS OF THE LEGISLATIVE
ASSEMBLY OF THE PROVINCE OF NEW BRUNSWICK 4195 (June 28, 1983); 71 ONTARIO LEGISLATIVE
ASSEMBLY DEBATES 3715–16 (Nov. 27, 1986). Finally, at the beginning of the so-called Canada
Round of constitutional negotiations from 1991 to 1992, the federal government unsuccessfully
proposed the amendment of the Charter to protect property rights. CANADA, SHAPING CANADAS
FUTURE TOGETHER: PROPOSALS 3 (Supply and Services Canada 1991). This proposal never made its
way into the final package of constitutional amendments—known as the Charlottetown Accord—
that was voted on in a national referendum in 1992. CONSENSUS REPORT ON THE CONSTITUTION:
CHARLOTTETOWN, AUGUST 28, 1992: FINAL TEXT (1992).
108 HOUSE OF COMMONS DEBATES 981 (Dec. 6, 1984) (Don Boudria). The next year, he referred once
again to Lochner with alarm: “[l]et us go back in history and look at what happened to the same
issue in the United States. For a great many years, courts in the United States interpreted the
Lochner to contemporary concerns, suggesting that “a substantive due process
approach” to the interpretation of an amended section 7 could undermine the
efficacy of matrimonial property regimes.109 Finally, as one would expect, an
MP from the New Democratic Party (NDP) reminded the House of Commons
that the Lochner era court had relied on the due process clauses in the Fifth and
Fourteenth amendments “to strike down laws providing for minimum wages,
maximum hours of work and maximum prices, and prohibiting anti-union
activity.”110 Similar concerns were raised in provincial legislatures. An NDP
member of the Ontario legislature stated, “[T]here have been problems in the
U.S. with property rights. For example, the right to regulate freight rates was
challenged and the government was prevented from regulating freight rates. As
well, the whole question of mortgages was raised in the U.S. and the courts pre-
vented farmers from postponing mortgages because of property rights of the
banks.”111 Witnesses appearing before the Special Joint Committee on a
Renewed Canada (the Beaudoin-Dobbie Committee), which was charged with
the task of reviewing 1991 federal proposals to add property rights to the
Charter, also made reference to the Lochner Court to illustrate the disadvantages
of entrenching property rights.112 For example, representatives of women’s
groups invoked Lochner in testimony that largely focused on the danger posed
by constitutional property rights to affirmative action programs, landlord-
tenant legislation, matrimonial property regimes, pay equity legislation,
antidiscrimination statutes, and antipornography legislation.113 One member
26 S. Choudhry
inclusion of property rights as precluding legislators from enacting minimum wage laws. What
would happen if that would be the effect here in Canada?” Id. at 1938 (Feb. 1, 1985) (Don
Boudria).
109 Id. at 986 (Dec. 6, 1984) (Mary Collins). Ms. Collins asked members of the House of Commons
to “recall the case of Lochner versus New York .. . in which the United States Supreme Court struck
down a statute prescribing maximum weekly and daily hours of work for bakers on the grounds
that it affected the deprivation of property rights without due process of law,” and stated that
“[t]he American courts also applied a substantive due process of law doctrine to invalidate statutes
relating to minimum wages and child labour.” Another PC MP referred with apparent concern “to
the experience in the United States in the first few decades of this century. During that time, the
courts invoked the due process clause of the U.S. Constitution to strike down social and economic
legislation.” Id. at 5170 (May 28, 1985) (Léo Duguay).
110 Id. at 10020 (Oct. 15, 1987) (Lorne Nystrom). See also id. at 12504 (Feb. 1, 1988) (Ian
Waddell).
111 71 ONTARIO LEGISLATIVE ASSEMBLY DEBATES 3711 (Nov. 27, 1986) (Floyd Laughren).
112 47 CANADA, SPECIAL JOINT COMMITTEE ON A RENEWED CANADA, MINUTES OF PROCEEDINGS AND EVIDENCE
70 (Jan. 21, 1992) (Lynda Haverstock) (testimony by leader of Liberal Party of Saskatchewan
referring to the striking down of New Deal legislation that would have established farm-debt
moratoriums).
113 43 id. at 5 (Jan. 15, 1992) (Jeanne d’Arc Gaudet, testifying on behalf of the Advisory Council
on the Status of Women of New Brunswick); 56 id. at 15–16 (Jan. 28, 1992) (Lynn Gaudet, testi-
fying on behalf of the Yukon Status of Women Council). Lynn Gaudet also referred specifically to
of the Beaudoin-Dobbie Committee described “the history of property rights in
the United States” as one in which “these rights have always been for the bene-
fit of the wealthy” and were “used to strike down good social legislation.”114
Thus, Lochner not only influenced the initial drafting of the Charter, but also
was invoked to oppose amendments to entrench property rights.115
3.1.2. Constitutional interpretation
Section 7 contains two textual ambiguities that have driven much of the case
law interpreting that provision. The first is the substitution of “fundamental
justice” for “due process,” raising the question of whether “fundamental jus-
tice” connotes procedural or substantive protection for the interests enumer-
ated in the provision. The drafting history supports the procedural
interpretation. The second ambiguity is the inclusion of “liberty,” a term broad
enough to extend beyond physical liberty to encompass both decisional auton-
omy or privacy and economic liberty. But once again, the drafting history, par-
ticularly the omission of property, suggests at least an intention to reject the
economic interpretation of that term. As each of these ambiguities has come
before the courts, the fear of Lochnerizing the Charter—in its various senses—
has been a paramount consideration for litigants, the Supreme Court of
Canada, and the Court’s critics.
The question of whether the principles of fundamental justice encompass
substantive as well as procedural protection came before the Supreme Court
just three years after the Charter came into force, in the Reference Re Motor
Vehicle Act case.116 The case generated a considerable amount of controversy,
because the lower court had held that, notwithstanding the drafting history of
section 7, “fundamental justice” imposed substantive limitations on legislative
The Lochner era and comparative constitutionalism 27
minimum wage laws, a type of law struck down by the Lochner court. See 26 id. at 66–67 (Dec. 9,
1991) (Gord Thompson, testifying on behalf of the Canadian Home Builders’ Association).
114 21 id. at 23 (Dec. 2, 1991) (Ian Waddell).
115 Lochner also frames the structure of the post-1982 academic literature on whether a property
rights amendment would spawn libertarian jurisprudence. Joel Bakan, for example, argued that
the 1991 federal proposal to entrench property rights was dangerous because the rise of neoliber-
alism would shape the interpretation of that provision, in the same way that the ideology of laissez-
faire had shaped the constitutional interpretation of the Fifth and Fourteenth amendments by
the Lochner Court. Joel Bakan, Against Constitutional Property Rights, in CONSTITUTIONAL POLITICS:
THE CANADIAN FORUM BOOK ON THE FEDERAL CONSTITUTIONAL PROPOSALS, 1991–92, 117, 123–25
(Duncan Cameron & Miriam Smith eds., James Lorimer & Co. 1992). Positive or ambiguous assess-
ments of these amendments have suggested, conversely, that the risk of Lochner is somewhat
remote. Writing in response to the 1983 resolution introduced in the House of Commons, and
before the emergence of neoliberalism in Canada, Claire Beckton suggested that a libertarian
interpretation of a property clause was “highly unlikely” because the philosophy of laissez-faire
was anachronistic. Clare F. Beckton, The Impact on Women of Entrenchment of Property Rights in the
Canadian Charter of Rights and Freedoms, 9 DALHOUSIE L.J. 288, 311 (1985).
116 Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2S.C.R. 486 (Can.).
competence, and, in particular, prohibited the enactment of absolute liability
offenses. Moreover, the lower court did no more than invoke “the public
interest” as the basis for determining when a deprivation of a protected inter-
est would be “fundamentally unjust.” The critique of Lochner as activist—i.e.,
where a court substitutes its own views on public policy for those of the
legislature—provided a rhetorically powerful tool to challenge this holding.
The link with Lochner was made most explicitly in Reference Re Motor Vehicle
Act by the attorney general of Ontario (AGO), who had intervened in the case
before the Supreme Court. The AGO articulated this connection in two differ-
ent ways. First, the AGO made much of the deliberate choice of the framers of
the Charter to not rely on “due process” in the drafting of section 7, describing
the taint that now attached to that term in the context of substantive due
process. The AGO then drew a direct analogy between the Lochner era and the
judgment of the lower court, stating that it opened the door to the constitu-
tionalization of judicial policy preferences:
At its high water mark, the “American” concept [of due process] served
to render inoperative state-enacted legislative schemes aimed at regulat-
ing matters within the legislative competence of the states. These provi-
sions were struck down because they offended certain basic economic
policies which the Court regarded as ingrained in the United States
Constitution through the due process clause. Those contending for a
negative answer in this case, seek to give the same scope to the “funda-
mental justice” requirement. If one substitutes criminal law policies for
economic policies, one can see that the British Columbia Court of Appeal
[i.e., the lower court] in this case engaged in a type of review which is
identical to that employed under the “due process” clause by the United
States Supreme Court in the late nineteenth and early twentieth
centuries.117
The critical reading of Lochner’s activism is reinforced by the next paragraph,
which shifts attention to the modern privacy jurisprudence to illustrate “that
American courts continue to employ the ‘due process’ clause to review the
suitability of social policies.”118 The message in these passages is that against
the background of this controversy, the choice by the Canadian framers of
wording other than “due process” suggests a clear intent not to follow the lead
of the American courts.119
This theme in the AGO’s submissions is supplemented by a second one—
that even had “due process” been employed, substantive due process is so
28 S. Choudhry
117 Factum of the Attorney General of Ontario, ¶ 36.
118 Id. ¶ 37. For the same point, see Factum of the Appellant Attorney General of British Columbia,
¶ 57; Factum of the Attorney General of Alberta, ¶ 4.
119 Factum of the Attorney General of Ontario, ¶ 39. For the same point, see Factum of the Appellant
Attorney General of British Columbia, ¶ 57; Factum of the Attorney General of Alberta, ¶ 4.
fraught with institutional danger that it ought to be avoided. To make this
point, the AGO relied on the pre-Charter case law under the Canadian Bill of
Rights, which protects “the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be deprived thereof
except by due process of law.”120 In a case cited by the AGO, Justice (later Chief
Justice) Bora Laskin had suggested that “due process” could be given a sub-
stantive interpretation, but, discussing the Lochner era, had drawn the lesson
“that a Court enters the bog of legislative policy-making in assuming to
enshrine any particular theory, as for example, untrammelled liberty of con-
tract, which has not been plainly expressed in the Constitution.”121 For Justice
Laskin, the lesson of Lochner was:
extreme caution...when asked to apply them [the words “due process”]
in negation of substantive legislation validly enacted by a Parliament in
which the major role is played by elected representatives of the people....
[Adjudication] must be grounded on more than a substitution of a per-
sonal judgment for that of Parliament.122
Invoking Justice Laskin’s analysis, the AGO in Reference Re Motor Vehicle Act
asserted that the “public interest” standard applied by the lower court would
invite the courts “to Lochner” under the rubric of fundamental justice—that is,
to conduct an “open ended and entirely subjective review of substantive law
provisions,”123 and “to make the judiciary a super-legislature sitting in review
of the policy objectives selected by the legislature.”124 To reinforce the institu-
tional dangers of judicial activism, the AGO discussed the “crisis in the 1930’s
that abated only when the court all but abandoned its attempts to promote its
view of the appropriate economic policies.”125
Justice Lamer’s majority judgment, which adopted a substantive interpre-
tation of “fundamental justice,” responded directly to these submissions. His
first move was to minimize the relevance of the American experience of sub-
stantive due process to the interpretation of the Charter, suggesting that “[w]e
would .. .do our own Constitution a disservice to simply allow the American
The Lochner era and comparative constitutionalism 29
120 Canadian Bill of Rights, ch. 44, 1960 S.C. 519, § 1(a) (Can.), reprinted in R.S.C. app. III (1985),
¶¶ 43–45 (Can.). This case was discussed in the Factum of the Attorney General of Ontario,
¶¶ 43–45.
121 R. v. Curr, [1972] S.C.R. 889, 902 (Can.).
122 Id.
123 Factum of the Attorney General of Ontario, ¶ 46.
124 Id. ¶ 48. See also Supplementary Factum of the Appellant Attorney General of British Columbia,
¶ 14 (“the opinion of the elected representatives of the people as to the fairness of legislation must
hold sway over the opinion of an appointed court” (underline in original)) and Factum of the
Attorney General of Saskatchewan, ¶ 17 (“a substantive interpretation of section 7 would effec-
tively transform the courts from constitutional adjudicators to legislative policy makers”).
125 Factum of the Attorney General of Ontario, ¶ 49.
debate to define the issue for us, all the while ignoring the truly fundamental
structural differences between the two constitutions.”126
Justice Lamer’s opposition to examining the American experience was fun-
damentally at odds with the drafting history of section 7, which made the rel-
evance of substantive due process unavoidable. It is, therefore, not surprising
that Justice Lamer went on to accept the force of the critique of Lochner, and to
attempt to deflect it. Thus, he agreed with the submission that the interpreta-
tion of “the principles of fundamental justice” should not lead to the “adjudi-
cation of the merits of public policy”127 or of the “wisdom” of legislation,128
an argument clearly framed with the Lochner era in mind. His compromise was
to define the principles of fundamental justice narrowly, as “the basic tenets of
our legal system,” which are both procedural and substantive in nature.129
Justice Lamer took this principle to encompass, inter alia, the principles of the
criminal justice system. He noted that this was an area in which the Court had
specific expertise, and which, as a consequence, lay “in the inherent domain of
the judiciary.”130
Both the limited scope of the Court’s interpretation of the principles of fun-
damental justice and the appeal to judicial competence were clearly designed
to deflect the criticism that, in adopting a substantive interpretation of “the
principles of fundamental justice,” Justice Lamer had done little more than
open the door to the Court’s substitution of its own views on public policy for
those of the legislature. Critics of the judgment, however, argued that this is
exactly what Justice Lamer had done and cited Lochner as the paradigmatic
example of this sort of judicial activism. Jamie Cameron, for example, engaged
in a lengthy discussion of Lochner-era substantive due process. She adopted an
activist reading of Lochner, and drew a direct link with Justice Lamer’s judg-
ment, stating “like Lamer, J., in this era the U.S. Supreme Court typically
pleaded innocent disregard of the merits of legislation under review,” whereas
“[i]t became patently clear, in the line of cases following Lochner v. New York,
30 S. Choudhry
126 Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486, 498 (Can.).
Justice Lamer suggested that the distinction between a substantive and a procedural interpretation
of § 7 was “largely bound up in the American experience with substantive and procedural due
process” and “import[ed] into the Canadian context American concepts, terminology and
jurisprudence, all of which are inextricably linked to problems concerning the nature and legiti-
macy of adjudication under the U.S. Constitution.” Id.
127 Id. at 499.
128 Id.
129 Id. at 503.
130 Id. On the facts of the case, the relevant principle was that “the innocent shall not be pun-
ished,” which was contravened by offenses of absolute liability punishable by imprisonment,
because persons convicted of such offenses could suffer a loss of physical liberty without possess-
ing a guilty mind.
that the court held statutes unconstitutional only because a majority dis-
agreed with the policy objectives of the legislature.”131 She went on to argue:
[T]his history should ...have held interest for Lamer, J....[I]t illustrates
why the legitimacy issue arises when a court injects non-textual, sub-
stantive values into a clause addressing procedural issues, and then
places those values beyond legislative intervention. The content of due
process is not subject to control, and once certain values receive consti-
tutional protection an unremovable and unaccountable judiciary has
defied the will of a removable and accountable representative body....
Had Lamer, J. reviewed the painful history of the Lochner era, he might
have been inclined to reach his decision on other grounds .. .132
Perhaps it is precisely because of Lochner that Justice Lamer framed “the prin-
ciples of fundamental justice” in light of the criminal justice system to serve as
a legitimizing device designed to disinherit the judicial activism strand of
Lochner’s legacy.
The second line of cases on section 7 deals with the scope of the “liberty”
interest protected by that provision. Whether and to what extent economic free-
dom is encompassed by the liberty interest has generated a surprising amount
of litigation, both in the Supreme Court and the lower courts. The first two deci-
sions from the Supreme Court on this issue quickly sent the message that free-
dom of contract falls outside the scope of section 7. The first of these, R. v.
Edwards Books, was a constitutional challenge to Sunday closing legislation.133
Although the case was resolved on the basis of the Charter’s guarantee of free-
dom of religion,134 one of the parties challenging the legislation also invoked
section 7, arguing that the liberty interest encompassed “economic freedom”
and citing two Lochner-era judgments on the Fourteenth Amendment.135
Moreover, the claimant characterized the Sunday closing law as illegitimate
class legislation, in language that could have come from the Lochner Court.136
The Lochner era and comparative constitutionalism 31
131 Jamie Cameron, The Motor Vehicle Reference and the Relevance of American Doctrine in Charter
Litigation, in CHARTER LITIGATION 69, 84 (Robert J. Sharpe ed., Butterworths 1987).
132 Id. at 86. See also Hawkins, supra note 75, at 291, where he accused Justice Lamer of
“Lochnerizing.”
133 R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (Can.).
134 Section 2(a) provides that “Everyone has the following fundamental freedoms . . .freedom of
conscience and religion . . .” Charter, supra note 10, § 2(a). The Court found that the legislation
contravened § 2(a), but found that the violation was justified under § 1.
135 The claimant, Paul Magder, cited (a) State v. Dodge, 76 Vt. 197 (1904) at ¶ 21 of his factum,
and (b) Pavesich v. New England Life Insurance Co., 50 S.E. 68 (1905) at ¶ 64 of his factum.
Factum of the Appellant Paul Magder.
136 Magder argued that “fundamental justice” was equivalent to “due process,” and that the latter
permitted governments to limit economic freedom only if they adhere to the principle that
The Supreme Court summarily dismissed this argument, but without any
reference to the American Constitution.137 Yet three years later, the Court felt
itself compelled to compare the texts of the Charter and the American
Constitution, in rejecting a similarly framed constitutional challenge to a pro-
hibition on advertising directed at children, inter alia, on the basis of economic
liberty.138 The Court rejected this claim on the basis of a comparison of the
wording of section 7 and the Fifth and Fourteenth amendments.139 It reasoned
that two differences between the provisions—the absence of protection for
property in the Charter, and the substitution of security of the person for prop-
erty in the Charter—colored the interpretation of the liberty interest and led
“to a general inference that economic rights as generally encompassed by the
term ‘property’ are not within the perimeters of the s. 7 guarantee.” 140 The
Court interpreted section 7 in exactly the manner envisioned by the framers of
the Charter.
These clear, albeit infrequent, signals from the Supreme Court rejecting a
constitutionalized economic libertarianism stand in stark contrast to the
tumultuous lower court jurisprudence of the same period. Notwithstanding
32 S. Choudhry
“[g]overnments are to operate for the common benefit of the people, and not for the particular
advantage of any special interest group.” Factum of the Appellant Paul Magder, ¶¶ 66 and 20. He
urged that the legislation did not meet this standard, because it was “anti-competitive and protec-
tionist,” as revealed by the exemptions it created for businesses operating in tourist areas, and
hence was “designed to serve particular special interests.” Id. ¶¶ 21 and 22. The Attorney General
of Ontario responded by noting the deliberate omission of proper ty from section 7, and he inferred
from that decision the exclusion of any protection for “economic freedoms” through the interests
enumerated therein. Factum of the Respondent Attorney General of Ontario, ¶ 95. Distinguishing
the American case law on the basis of differences in the constitutional texts, he drew a compari-
son between section 7 and the Fifth and Fourteenth amendments, suggesting that inclusion of
property colored the American provisions as a whole and accounted for the interpretation of lib-
erty as encompassing freedom of contract. These submissions were adopted by the attorneys gen-
eral of Manitoba, Newfoundland, Quebec, and Saskatchewan, who intervened in the appeal.
Factum of the Attorney General of Manitoba, ¶ 3; Factum of the Attorney General of
Newfoundland, ¶ 5; Factum of Attorney General of Quebec, ¶ 23; Factum of the Attorney General
of Saskatchewan, ¶ 3.
137 R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, 785–86 (Can.).
138 Irwin Toy v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (Can.). The challenge and the
judgment focused on § 2(b), which provides that “[e]veryone has the following fundamental free-
doms . . . freedom of thought, belief, opinion and expression, including freedom of the press and
other media of communication ...” Charter, supra note 10, § 2(b). The Court found that the law
violated § 2(b), but was saved under § 1.
139 Id. at 1003–4.
140 Id. at 1003. The Court also held that omission of economic interests from § 7 meant that cor-
porations were excluded from the class of entities that could hold rights under the provision,
notwithstanding that § 7 rights are guaranteed to “everyone.” Id. at 1004. This holding was con-
firmed in Dywidag Systems International, Canada Ltd. v. Zutphen Brothers Construction Ltd.,
[1990] 1 S.C.R. 705, 709 (Can.).
the drafting history of section 7, and the reflection of that history in the text of
the provision, claimants pleaded section 7 in constitutional challenges to a
vast array of legislation restricting economic liberty until 1989. The
impugned laws were diverse, tracking the variety and scope of Lochner-era
challenges to economic regulation. Some cases concerned challenges to com-
mercial regulations that governed, for example, the operation of hotels141 and
arcades,142 dairy farming,143 the sale of alcohol,144 the sale of pharmaceuti-
cals,145 Sunday closings,146 advertising,147 and the manufacture of goods.148
There were challenges to laws that resembled regulatory takings, such as
those requiring the compulsory licensing of patents for medicines,149 estab-
lishing rent controls,150 and setting limits on the right to contract in bank-
ruptcy legislation.151 Other cases challenged limitations on rights to real
property, such as restrictions on a landlord in recovering possession of prem-
ises,152 expropriations,153 restrictions on the locations of group homes,154 and
restrictions on land ownership by nonresidents of a province.155 Section 7 was
The Lochner era and comparative constitutionalism 33
141 Re D & H Holdings and City of Vancouver, 21 D.L.R. (4th) 230 (B.C. Sup. Ct. 1985).
142 Francen v. City of Winnipeg, 40 Man. R. (2d) 137 (Ct. App. 1986).
143 Milk Board v. Clearview Dairy Farm Inc., 69 B.C.L.R. 220 (Sup. Ct. 1986), aff’ d, 12 B.C.L.R.
(2d) 116 (Ct. App. 1987).
144 Parkdale Hotel Ltd. v. Canada (Attorney General), 2 F.C. 514 (Fed. Ct. Trial Div. 1986); Re
Homemade Winecrafts (Canada) Ltd. v. British Columbia (Attorney General), 26 D.L.R. (4th) 468
(B.C. Sup. Ct. 1986); R. V. P. Enterprises Ltd. v. British Columbia (Minister of Consumer and
Corporate Affairs), 12 B.C.L.R. (2d) 244 (Sup. Ct. 1987), aff ’d, 25 B.C.L.R. (2d) 219 (Ct. App.
1988).
145 Bassett v. College of Physicians and Surgeons of Saskatchewan, 63 Sask. R. 45 (Q.B. 1987).
146 Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., 73 O.R. (2d) 289
(High Ct. J. 1990).
147 R. v. Pinehouse Plaza Pharmacy Ltd., 67 Sask. R. 201 (Q.B. 1988).
148 Re Aluminum Co. of Canada, Ltd. and Ontario (Minister of the Environment), 55 O.R. (2d) 522
(Div. Ct. 1986).
149 Smith, Kline & French Laboratories Ltd. v. Canada (Attorney General), 1 F.C. 274 (Fed. Ct. Trial
Div. 1986), af f ’d, 2 F.C. 359 (Ct. App. 1987).
150 Haddock v. Ontario (Attorney General), 73 O.R. (2d) 545 (High Ct. J. 1990).
151 Skalbania (Trustee of) v. Wedgewood Village Estates Ltd., 37 B.C.L.R. (2d) 88 (Ct. App. 1989).
152 Turbo Resources Ltd. v. Rotchell, 38 Sask. R. 205 (Q.B. 1985).
153 Becker v. Alberta, 45 A.R. 37 (Q.B. 1983); Manicom v. County of Oxford, 52 O.R. (2d) 137
(High Ct. J. 1985).
154 Alcoholism Foundation of Manitoba v. City of Winnipeg, 59 Man. R. (2d) 83 (Q.B. 1988), rev’d,
65 Man. R. (2d) 81 (Ct. App. 1990).
155 Reference Re Lands Protection Act (P.E.I.), 64 Nfld. & P.E.I.R. 249 (Ct. App. 1987).
also used to challenge features of the federal income tax156 and the excise
tax.157 Challenges to the constitutionality of restrictions on the right to pursue
claims in tort and contract, for example, by eliminating causes of action158 or
limiting liability,159 generated section 7 challenges as well. For the most part,
litigants framed the above challenges in terms of the deprivation of their “lib-
erty,” understood to contain an economic component. And again for the most
part, these challenges were spectacular failures, with courts almost uniformly
holding that section 7 does not protect economic rights.160 But in two other
34 S. Choudhry
156 Fleming v. Minister of National Revenue, 2 C.T.C. 2192 (Can. Tax Ct. 1986); Androwich v.
Canada, 1 C.T.C. 78 (Fed. Ct. Trial Div. 1990).
157 Vanguard Coatings and Chemicals Ltd. v. Canada (Minister of National Revenue), 1 F.C. 367
(Fed. Ct. Trial Div. 1987).
158 See, e.g., Budge v. Alberta (Workers’ Compensation Board), 80 A.R. 207 (Q.B. 1987), rev’d, 111
A.R. 228 (Ct. App. 1991); Re Energy Probe and Canada (Attorney General), 61 O.R. (2d) 65 (High Ct.
J. 1987); Roncato v. O’Brien, No. 1403/87, Quicklaw [1987] O.J. No. 1285 (Dist. Ct. Oct. 16, 1987).
159 Whitbread v. Walley, 26 B.C.L.R. (2d) 203 (Ct. App. 1988).
160 See, e.g., Becker v. Alberta, 45 A.R. 37 (Q.B. 1983); Turbo Resources Ltd. v. Rotchell, 38 Sask.
R. 205 (Q.B. 1985); Manicom v. County of Oxford, 52 O.R. (2d) 137 (Div. Ct. 1985); Smith, Kline
& French Laboratories Ltd. v. Canada, 2 F.C. 359 (Ct. App. 1986); R. v. Professional Technology of
Canada Ltd., 12 C.P.R. (3d) 218 (Alta. Prov. Ct. 1986); Re Homemade Winecrafts (Canada) Ltd.
and British Columbia (Attorney General), 26 D.L.R. (4th) 468 (B.C. S.C. 1986); Re Malartic
Hygrade Gold Mines (Canada) Ltd. and Ontario Securities Commission, 54 O.R. (2d) 544 (Div. Ct.
1986); Grant v. Crane Construction Corp., 3 B.C.L.R. (2d) 114 (Sup. Ct. 1986); Re Aluminum Co.
of Canada Ltd. and Ontario, 55 O.R. (2d) 522 (Div. Ct. 1986); Dywidag Systems International
Canada Ltd. v. Zutphen Brothers Construction Ltd., 75 N.S.R. (2d) 187 (Sup. Ct. 1986), aff’d, 76
N.S.R. (2d) 398 (Ct. App. 1987), aff ’d on different grounds, [1990] 1 S.C.R. 705 (Can.); Fleming v.
Minister of National Revenue, 2 C.T.C. 2192 (Can. Tax. Ct. 1986); R. v. Chomski, Quicklaw [1986]
O.J. No. 1596 (Ont. Prov. Ct. Aug. 12, 1986); Re Yorkville North Development Ltd. and City of
North York, 57 O.R. (2d) 172 (Dist. Ct. 1986); Vanguard Coatings and Chemicals v. Minister of
National Revenue, 1 F.C. 367 (Fed. Ct. Trial Div. 1986), af f ’d, 3 F.C. 560 (Ct. App. 1988); Byrt v.
Saskatchewan, 56 Sask. R. 111 (Q.B. 1986); Bassett v. Canada, 53 Sask. R. 81 (Sask. Ct. App.
1987); Omni Health Care Ltd. v. Canadian Union of Public Employees, No. 391/86, Quicklaw
[1987] O.J. No. 2255 (High Ct. J. Jan. 29, 1987); Re G. E. Z., Quicklaw [1987] M.J. No. 643 (Prov.
Ct. Feb. 17, 1987); R. V. P. Enterprises Ltd. v. British Columbia (Minister of Consumer and
Corporate Affairs), 12 B.C.L.R. (2d) 244 (Sup. Ct. 1987), aff ’d, 25 B.C.L.R. (2d) 219 (Ct. App.
1988); Kuntz v. College of Physicians and Surgeons of British Columbia, No. A870116, Quicklaw
[1987] B.C.J. No. 724 (B.C. Sup. Ct. Mar. 6, 1987); Charalambous v. College of Physicians and
Surgeons of British Columbia, No. A863111, Quicklaw [1987] B.C.J. No. 1212 (Sup. Ct. Apr. 24,
1987); Benoit v. Gestion Tex-Di Inc., R.J.Q. 1401 (Sup. Ct. 1987); Reference Re Lands Protection
Act (P.E.I.), 64 Nfld. & P.E.I.R. 249 (P.E.I. Sup. Ct. 1987); R. v. Myrrmidon Inc., 48 Man. R. (2d)
105 (Q.B. 1987), aff’ d, 52 Man. R. (2d) 303 (Ct. App. 1988); Hillcrest Contractors Ltd. v. McIntyre,
62 Sask. R. 251 (Q.B. 1987); Home Orderly Services Ltd. v. Manitoba, 45 Man. R. (2d) 200 (Q.B.
1987), aff ’d, 49 Man. R. (2d) 246 (Ct. App. 1987); Apsassin v. Canada (Department of Indian
Affairs and Northern Development), [1988] 3 F.C. 20 (Trial Div.); Whitbread v. Walley, 19 B.C.L.R.
(2d) 120 (Sup. Ct. 1987), § 7, analysis aff’d, 26 B.C.L.R. (2d) 203 (Ct. App. 1988); Institute of
Edible Oil Foods v. Ontario, 63 O.R. (2d) 436 (High Ct. J. 1987); O.P.S.E.U. v. Northern College of
Applied Arts and Technology, 28 O.A.C. 100 (Div. Ct. 1988); Weyer v. Canada, 83 N.R. 272
sets of cases, claimants enjoyed much greater success. The first of these cases
centered on challenges to the regulation of the professions and raised the ques-
tion of whether the right to engage in a profession fell within the scope of the
“liberty” interest.161 The second set of cases arose out of the suspension of
motor vehicle licenses and raised for judicial determination whether “liberty”
encompassed the right to drive.162
Anti-Lochnerism loomed large in this mass of case law. In challenges that
were unsuccessful, courts used textual arguments—comparing section 7 with
The Lochner era and comparative constitutionalism 35
(Fed. Ct. App. 1988); Phillips v. Moose Jaw Police Commissioners, 67 Sask. R. 49 (Q.B. 1988); R. v.
Pinehouse Plaza Pharmacy Ltd., 67 Sask. R. 201 (Q.B. 1988), aff’ d, 89 Sask. R. 47 (Q.A. 1991);
Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, No. 8501–05620,
Quicklaw [1988] M.J. No. 337 (Q.B. June 22, 1988); Bernard v. Dartmouth Housing Authority, 88
N.S.R. (2d) 190 (Sup. Ct. 1988); Anthony v. Misericordia General Hospital (Executive Director),
No. 88–01–269260, Quicklaw [1987] M.J. No. 354 (Q.B. July 20, 1988); Skalbania (Trustee of)
v. Wedgewood Village Estates Ltd., 31 B.C.L.R. (2d) 184 (Sup. Ct. 1988), aff ’d, 37 B.C.L.R. (2d) 88
(Ct. App. 1989); Arlington Crane Service v. Ontario (Minister of Labour), 67 O.R. (2d) 225 (High
Ct. J. 1988). The point that section 7 does not protect economic rights has been made in later judg-
ments. See, e.g., Arlington Crane Service, 67 O.R. (2d) 225; Institute of Edible Oil Foods, 63 O.R. (2d)
436; Whitbread, 19 B.C.L.R. (2d) 120.
161 The best-known cases of this type were largely brought by physicians, who challenged geo-
graphic restrictions on the right to practice under provincial health insurance plans (Mia v. British
Columbia (Medical Services Commission), 61 B.C.L.R. 273 (Sup. Ct. 1985) and Re Wilson and
Medical Services Commission, 30 B.C.L.R. (2d) 1 (Ct. App. 1988)); the termination of admitting
privileges by public hospitals (Stoffman v. Vancouver General Hospital, 30 D.L.R. (4th) 700 (B.C. Sup.
Ct. 1986) ); and discipline procedures employed by medical licensing authorities. With respect to the
last category of cases: (a) for cases where courts found no deprivation of a protected interest, see
Kuntz v. College of Physicians and Surgeons of British Columbia, No. A870116, Quicklaw [1987]
B.C.J. No. 724 (Sup. Ct. Mar. 6, 1987); Charalambous v. College of Physicians and Surgeons of
British Columbia, No. A863111, Quicklaw [1987] B.C.J. No. 1212 (S.C. Apr. 24, 1987); Khaliq-
Kareemi v. Health Services and Insurance Commission (N.S.), 84 N.S.R. (2d) 425 (Sup. Ct. 1988),
varied, 89 N.S.R. (2d) 388 (Ct. App. 1989); (b) for a case where courts found a deprivation to be in
accordance with the principles of fundamental justice, see Yong v. College of Physicians and
Surgeons of British Columbia, No. A852805, Quicklaw [1986] B.C.J. No. 2138 (Sup. Ct. Feb. 14,
1986); and (c) for a case where courts found a deprivation not in accordance with principles of fun-
damental justice, see Branigan v. Yukon Medical Council, 1 B.C.L.R. (2d) 350 (Yukon Sup. Ct. 1986).
162 For examples of cases where courts found no deprivation of a protected interest, see R. v. Neale,
71 A.R. 337 (Ct. App. 1986); Re G. E. Z., Quicklaw [1987] M.J. No. 643; Paganelli v. Ontario
(Registrar of Motor Vehicles), No. 1105/86, Quicklaw [1987] O.J. No. 2424 (Div. Ct. Mar. 31,
1987); Ginther v. Saskatchewan Government Insurance, 66 Sask. R. 109 (Ct. App. 1988). For
cases where courts found a deprivation of a protected interest to be in accordance with principles
of fundamental justice, see Hundal v. British Columbia (Superintendent of Motor Vehicles), 64
B.C.L.R. 273 (Ct. App. 1985); Re Zukowski and British Columbia, 25 D.L.R. (4th) 627 (B.C. Sup. Ct.
1986); Re Allen and Superintendent of Motor Vehicles, 27 C.C.C. (3d) 32 (B.C. Sup. Ct. 1986);
R. v. Heidel, 48 Sask. R. 173 (Q.B. 1986); R. v. Miller, 55 O.R. (2d) 417 (High Ct. J. 1986). For cases
where courts found a deprivation of a protected interest not to be in accordance with principles of
fundamental justice, see R. v. Robson, 56 B.C.L.R. 194 (Sup. Ct. 1984), aff ’d, 28 B.C.L.R. (2d) 8
(Ct. App. 1985); R v. Grant, 28 C.C.C. (3d) 32 (B.C. Sup. Ct. 1986); R. v. Nelson, 24 B.C.L.R. (2d)
221 (County Ct. 1988); R. v. Sengara, 26 B.C.L.R. (2d) 71 (Sup. Ct. 1988).
the Fifth and Fourteenth amendments—later employed by the Supreme Court
in Irwin Toy.163 Some courts went further, and specifically rejected Lochner’s
political economy theory. In Smith, Kline & French Laboratories, Barry Strayer,
now a justice of the Federal Court of Canada, dismissed the claimant’s reliance
on Lochner-era precedent, noting that
[r]eference to the jurisprudence of 1923 of the United States Supreme
Court on the subject of “liberty” must also be viewed with caution.
The concept of “liberty of contract,” originally founded on the
Fourteenth Amendment, scarcely survived the Great Depression in the
United States . . . [moreover] it must be kept in mind that the historical
background and social and economic context of the Fourteenth
Amendment are distinctly American.164
Lochner-era case law was disapproved of in another case, in which the court
noted that “[t]he authority of Lochner has long . . . been almost entirely whit-
tled away in the land of its birth. ...I do not accept it as having any application
to the meaning of ‘liberty’ in s. 7 of the Charter.”165 In a similar vein, another
judgment noted that “[t]he different and expanded meaning accorded the
word ‘liberty’ appears to find its source in American tradition, drawing heav-
ily on so-called natural law or libertarian principles, philosophic principles
espoused in that country in the late nineteenth century.”166
Successful litigants, conversely, were forced to navigate around Lochner. The
dominant strategy employed in these cases was one of redescription—that is,
the redescription of claims of economic liberty in terms that did not raise the
specter of laissez-faire. This strategy was the most congenial to cases that lay
on the border between different conceptions of liberty. Cases on the right to
drive, for example, were brought by claimants motivated by economic consid-
erations, because the suspension of a license diminished their capacity to earn
a livelihood. To avoid the accusation of endorsing Lochner, the claimants
characterized the “liberty” at stake as the physical liberty to move freely.167
36 S. Choudhry
163 Becker v. Alberta, 45 A.R. 37 (Q.B. 1983); Gershman Produce Co. v. Manitoba (Motor
Transport Board), 32 Man. R. (2d) 308 (Q.B. 1984), varied, 36 Man. R. (2d) 81 (Ct. App. 1985);
Re Malartic Hygrade Gold Mines (Canada) Ltd. and Ontario Securities Commission, 54 O.R. (2d)
544 (Div. Ct. 1986); Re Homemade Winecrafts (Canada) Ltd. v. British Columbia (Attorney
General), 26 D.L.R. (4th) 468 (B.C. Sup. Ct. 1986); Grant v. Crane Construction Corp., 3 B.C.L.R.
(2d) 114 (Sup. Ct. 1986); Chomski, Quicklaw [1986] O.J. No. 1596; Re Yorkville North
Development Ltd. and City of North York, 57 O.R. (2d) 172 (Dist. Ct. 1986).
164 Smith, Kline & French Laboratories Ltd. v. Canada (Attorney General), 1 F.C. 274, 314 (Trial
Div. 1986).
165 Skalbania (Trustee of) v. Wedgewood Village Estates Ltd., 37 B.C.L.R. (2d) 88, 97 (Ct. App. 1989).
166 R. v. Neale, 71 A.R. 337, 341 (Ct. App. 1986).
167 See, e.g., Gershman Produce Co., 32 Man. R. (2d) 308 (Q.B. 1984). But compare R. v. Robson, 56
B.C.L.R. 194, 199 (Sup. Ct. 1984) (stating that the liberty interest protects the right to earn a
Cases limiting the right to practice a profession, by contrast, sought to break
down the boundary between the economic liberty aspect and privacy/deci-
sional autonomy aspect of substantive due process, given the plausible con-
nection between choice of occupation and the pursuit of an individual’s
conception of the good.168
This latter set of cases sparked a debate in the academic literature. Critics
attacked this attempt at redescription by recategorizing these cases under the
heading of laissez-faire. David Lepofsky, for example, wrote of Wilson v. British
Columbia (Medical Services Commission)169—a case in which a court had found
unconstitutional the geographic restrictions on the right of physicians to prac-
tice under a provincial health insurance plan—”[o]f the entire United States
constitutional experience, Canadians can learn no better lesson than from the
substantive due process era—a massive judicial mistake which we should
avoid replicating.”170 Academic defenders of the judgment responded, in turn,
by claiming that it did not mark a return to Lochner’s commitment to the free
market. Hart Schwartz thus argued that “the court went out of its way to
declare that it was not promoting a laissez-faire, or any other, economic
approach” and that “[a] person who has trained, studied, and developed the
skills and expertise to practise a profession or trade . .. clearly has her dignity
and sense of self-worth impaired when informed by a government agency that
she may no longer employ her skills.”171
The indirect attempt to protect economic rights through section 7 in the
lower courts provoked an outburst from Justice Lamer in 1990, with regard to
a challenge to the criminal regulation of prostitution on the grounds that the
law infringed the liberty of prostitutes to contract for their services.172
The Lochner era and comparative constitutionalism 37
livelihood), aff ’d, 28 B.C.L.R. (2d) 8, 11 (Ct. App. 1985) (stating that the liberty interest encom-
passes the “liberty to employ one’s skill and ability”).
168 In Mia v. British Columbia (Medical Services Commission), 61 B.C.L.R. 273, 304 (Sup. Ct.
1985), the court cited Meyer v. Nebraska, 262 U.S. 390 (1923) in support of this move. Meyer was
a Lochner-era case on noneconomic substantive due process that survived the 1930s and held that
liberty encompassed the right “to engage in any of the common occupations of life.” Id. at 399.
169 30 B.C.L.R. (2d) 1 (Ct. App. 1988).
170 M. David Lepofsky, A Problematic Judicial Foray into Legislative Policy-Making: Wilson v. B.C.
Medical Services Commission, 68 CAN. B. REV. 615, 626 (1989). Leopofsky suggested that inter-
preting the liberty interest to encompass the right to practice a profession, coupled with a sub-
stantive interpretation of the principles of fundamental justice, would create “a Canadian
equivalent to United States style substantive due process, replete with all of its dangers,” and that
the “court assumed the legislature’s mantle as had United States courts for three decades . ..
implicitly impressing on the public one particular economic philosophy.” Id.
171 Hart Schwartz, In Defence of Wilson: Wilson v. Medical Services Commission of British
Columbia, 69 CAN. B. REV. 162, 163–64 (1990).
172 Prostitution Reference, [1990] 1 S.C.R. 1123.
The party raising the constitutional challenge sought to avoid the taint of
Lochner’s libertarianism and to situate her claim within the privacy limb of
substantive due process. The claimant argued by analogy to the professional
regulation cases (which had succeeded in the lower courts) that the law vio-
lated her right to engage in “a lawful occupation,” since the law prohibited
solicitation but not prostitution itself.173 The attorney general of Canada
responded by attempting to recategorize the challenge as one based on eco-
nomic liberty and expressly invoked the Lochner era.174
In his judgment, Justice Lamer rejected the constitutional challenge and
engaged in an extensive examination of American constitutional jurispru-
dence. His first move was to delegitimize the claimant’s arguments by charac-
terizing them as claims of economic liberty, thus tying them directly to the
economic limb of the substantive due process cases of the Lochner era and
rejecting the claimant’s attempts at strategic redescription.175 Justice Lamer’s
next move was to discuss the Court-packing crisis:
The onset of the Depression and President Roosevelt’s New Deal initia-
tives caused a confrontation between the notion of “economic liberty”
and the needs of a modern regulatory state. Beginning in 1935 the U.S.
Supreme Court rendered a number of decisions invalidating New Deal
legislation ...What ensued was the so-called “Court Crisis” in which
President Roosevelt proposed a court reorganization plan. The plan was
never put into effect. Significantly, however, the court overruled its deci-
sions . . .and adopted a more deferential approach to cases of state regu-
lation of “economic liberty.”176
Justice Lamer concluded that the liberty interest was limited to physical liberty
and did not extend any further.177 The point of Justice Lamer’s excursus into
38 S. Choudhry
173 Factum of the Appellant, 13–15.
174 Factum of the Attorney General of Canada, ¶ 9.
175 Prostitution Reference, [1990] 1 S.C.R. 1123. Justice Lamer observed that “[i]t should not be
overlooked, however, that the American experience with ‘economic liberty’ jurisprudence in par-
ticular, has been controversial throughout its history.” Id. at 1164. He then proceeded to list the
most infamous holdings of the Lochner Court—Allgeyer v. Louisiana, 165 U.S. 578 (1897); Lochner
v. New York, 198 U.S. 45 (1905); Adair v. United States, 208 U.S. 161 (1908); Coppage v. Kansas,
236 U.S. 1 (1915); Adkins v. Children’s Hospital of the District of Columbia, 261 U.S. 525 (1923)—
describing them as cases in which “the U.S. Supreme Court invalidated many regulatory measures
on the grounds that they intruded upon liberty of contract and property rights.” Id. at 1165.
176 Id. at 1165. Lamer wrote: “All of this is to emphasize the difficulties that the United States
Supreme Court has faced in dealing with the concept of ‘economic liberty’ as a constitutionally
protected freedom, and how much the American experience is linked to its particular historical
record and social context.” Id. at 1165–66.
177 Id. at 1173–74. The majority declined to address this issue, stating that “this case does not pro-
vide the appropriate forum for deciding whether ‘liberty’ or ‘security of the person’ could ever
American constitutional history was to counsel extreme caution before import-
ing the economic liberty jurisprudence into Canadian constitutional doc-
trine.178 It is significant that Justice Lamer discussed the danger that Lochner
posed to the very institution of judicial review itself. Presumably, Justice Lamer
feared that if the Canadian courts became mired in a similar controversy, the
legitimacy of their constitutionally entrenched role as enforcers of the Charter
could be jeopardized. This fear has been invoked by academic commentators, as
well, in order to dissuade the courts from accepting Lochner-style claims.
Commenting on a threatened lawsuit against the prohibition on physicians
charging patients directly for additional amounts above the rates set by a
provincial health insurance plan, on the ground that the law violated section 7
for infringing upon economic liberty, constitutional scholars Allan Hutchinson
and Andrew Petter wrote that “[w]e hope it will not take a similar crisis in
Canada to convince our courts” to reject the claim.179
Attempts to protect economic liberty by means of section 7 have continued.
In one case, a challenge was brought against disciplinary proceedings for
lawyers on the basis that the right to practice law fell within the scope of “lib-
erty.”180 Although the Court resolved the case without reaching this issue,
interveners opposed to the challenge linked the claim to Lochner-era substan-
tive due process. The attorney general of Quebec, for example, noted that the
Fifth and Fourteenth amendments “were interpreted, during a certain era, as
protecting a range of commercial activities from government regulation.. . .
Accordingly, a number of laws of a regulatory nature were invalidated . ..”181
In a later case, the Court summarily dismissed a section 7 challenge to a
provincial law restricting the right to practice accounting to persons licensed
by a provincial regulatory authority.182 One intervener opposing the challenge
submitted that the claimants “invite the Court to read into s. 7 a concept of
‘economic liberty’ similar to that which led the Supreme Court of the United
States into the disastrous and now discredited line of cases descending from
Lochner v. New York.”183 Most recently, the respondent in a case of sexual
The Lochner era and comparative constitutionalism 39
apply to any interest with an economic, commercial or property component.” Id. at 1140–41
(emphasis in original).
178 Id. at 1165–66.
179 Allan Hutchinson & Andrew Petter, Charter’s Core Values Don’t Belong to Property Owners, CAN.
L., Sept. 1986, at 23, 42 (1986).
180 Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869 (Can.).
181 Factum of the Attorney General of Quebec, ¶¶ 15–16 (translated from original French). See also
Factum of the Attorney General of Ontario, ¶¶ 36–37; Factum of the Attorney General of
Saskatchewan, ¶ 15.
182 Walker v. Prince Edward Island, [1995] 2 S.C.R. 407 (Can.).
183 Factum of the Institute of Chartered Accountants of Prince Edward Island, ¶ 39. See also
Factum of the Respondent Government of Prince Edward Island, ¶ 89; Factum of the Attorney
harassment alleged that the stigma and stress resulting from a lengthy delay in
processing the complaint amounted to a deprivation of “liberty.”184 The attor-
ney general of Ontario filed a factum in which it accused the respondent of
seeking ultimately to protect economic rights (e.g., present and future
prospects of employment) through section 7, and warned the Court “to avoid
the controversy that plagued the U.S. Supreme Court during the infamous
Lochner era and to avoid deciding matters of general public policy.”185
Moreover, Lochner has been invoked by litigants in Charter cases outside the
section 7 context in order to taint other constitutional claims with the brush of
economic libertarianism. In its submissions to the Court in the first case on
commercial expression,186 the attorney general of Quebec argued that such
speech should be excluded entirely from the ambit of Charter protection, and
that American jurisprudence on commercial expression was to be rejected,
because it amounted to the revival of “a now discredited American doctrine
believed to have been buried nearly fifty years ago, which was called ‘substan-
tive economic due process. 187 Another example of the invocation of Lochner
arose in a challenge to the restriction imposed by an agricultural marketing
regime on interprovincial trade in goods, brought under the rubric of the
Charter’s mobility rights provision.188 Two public interest organizations
opposed to the challenge argued that accepting the claim raised “the spectre of
the so-called Lochner era in the United States, when the U.S. Supreme Court
used an expansive interpretation of the U.S. Constitution to protect freedom to
contract and property rights,” which was “disastrous for government regula-
tion aimed at protecting the public from the destructive tendencies of corpora-
tions and the free market.”189
In contrast to the Court’s clear rejection of Lochner’s economic libertarian-
ism, the question of whether the liberty interest extends to privacy and
40 S. Choudhry
General of Quebec, ¶ 54; Factum of the Attorney General of Manitoba, ¶¶ 30–31; Factum of the
Attorney General of Saskatchewan, ¶ 23. A submission supporting the claim sought to disentan-
gle it from the collapse of Lochner-era jurisprudence. Factum of the Certified General Accountants
Association of Ontario, ¶ 30.
184 Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 (Can.).
185 Factum of the Attorney General of Ontario, ¶ 42.
186 Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 (Can.).
187 Factum of the Attorney General of Quebec, para. 75 (translated from French). The factum also
adopted the antiactivist reading of Lochner, by arguing that according constitutional protection to
commercial expression would interpret the Charter “as if it implied a particular economic theory
which the courts have to follow” when in fact there is “no room for courts to substitute their judg-
ment for that of the legislator,” since “in economic matters the Constitution is neutral.” Id. at
paras. 75 and 79 (translated from original French).
188 Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 (Can.).
189 Factum of the Council of Canadians and the Sierra Legal Defence Fund Society, ¶ 26.
decisional autonomy has deeply divided the Court. This raises difficult ques-
tions regarding what precise lessons the Court has drawn from the Lochner era,
and, more fundamentally, the meaning of Lochner in the Canadian constitu-
tional imagination—that is, whether the libertarian or the activist reading of
Lochner has taken hold. These cleavages first appeared in a challenge to
Canada’s federal abortion law.190 A plurality of the Court resolved the appeal
on procedural grounds, a minimalist approach that avoided the question of
whether the liberty interest encompassed a right to reproductive choice. But
Justice Wilson squarely addressed the substantive issue and invoked the
noneconomic substantive due process jurisprudence as an aid to construing
section 7. She interpreted liberty as encompassing “a degree of autonomy in
making decisions of fundamental personal importance,” a position that “is
consistent with the American jurisprudence on the subject.”191 Instead of dis-
tinguishing Roe, or even acknowledging the controversy that surrounds it, she
applied it directly, holding that the liberty interest encompassed the right of a
woman to terminate her pregnancy. Justice Wilson’s judgment met with a
sharp rebuke in the dissenting judgment of Justice McIntytre, in which he
accused her of judicial legislation. Echoing the critique of Lochner as activist,
Justice McIntyre stated that it was “not for the Court to substitute its own
views on the merits of a given question for those of Parliament” and that
courts should not interpret the Charter to give effect “to the idiosyncratic view
of the judge who is writing.”192 To make this point, he relied directly on the
authority of Justice Holmes, quoting from his dissent in the Lochner-era case of
Tyson & Bro.–United Theatre Ticket Offices, Inc. v. Banton193 and remarking of
that dissent that, “although written in the American context, the principle
stated [by Holmes] is equally applicable in Canada.”194
A majority of the justices declined to engage in this debate, leaving
unresolved the status of Lochner in the Canadian constitutional imagination.
But matters later came to a head in a challenge to a statute authorizing a child
protection agency to consent to a life-saving blood transfusion on behalf of an
The Lochner era and comparative constitutionalism 41
190 R. v. Morgentaler, [1988] 1 S.C.R. 30 (Can.).
191 Id. at 166, 167. She then traced the growth of the right to privacy, from its origins in Meyer v.
Nebraska, 262 U.S. 390 (1923) and another Lochner-era case, Pierce v. Society of Sisters, 268 U.S.
510 (1925), to its revival in Griswold v. Connecticut, 381 U.S. 479 (1965) and Roe v. Wade, 410 U.S.
113 (1973).
192 Morgentaler, [1988] 1 S.C.R. at 138, 140.
193 273 U.S. 418, 445–47 (1927), where Justice Holmes stated, “I think the proper course is to rec-
ognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express
prohibition in the Constitution of the United States or of the State, and that Courts should be care-
ful not to extend such prohibitions beyond their obvious meaning by reading into them concep-
tions of public policy that the particular Court may happen to entertain.”
194 Morgentaler, [1988] 1 S.C.R. at 139.
infant in contravention of the religious beliefs of that infant’s parents.195
Speaking for a plurality of the Court, Justice La Forest held that “liberty”
encompassed the right of individuals to make decisions of “fundamental per-
sonal importance,”196 and that this liberty encompassed the right of parents
to make medical decisions for their children. Far from distinguishing Lochner-
era case law, the plurality actually relied on two cases from the period,197
which immediately raised the question of the status of Lochner itself. Justice La
Forest’s answer was to note that “[t]hose two cases have survived the Lochner
era, a much criticized period in which the Supreme Court engaged in substan-
tive review of many economic and social statutes,”198 a line of argument that
presumably rejected Lochner’s libertarianism but endorsed the use of substan-
tive due process with respect to noneconomic interests.
This characterization of the implications of the plurality judgment was
pointed out by (then) Chief Justice Lamer, who concurred in the result but for
different reasons. Reiterating his strongly held views that the liberty interest
was limited to physical liberty, and that American jurisprudence should not be
used as a positive guide to the interpretation of section 7, Chief Justice Lamer
raised the fear that Justice La Forest’s reasoning would “Lochnerize” the
Charter. He noted that “a large proportion of the legislative provisions [cur-
rently] in force could be challenged on the ground that they infringe the liberty
guaranteed by s. 7 of the Charter,”199 and, in language reminiscent of
Holmes’s dissent in Lochner, he posed the problem as follows:
We must keep in mind, first, that what may be important and fundamen-
tal to one person may very well not be to another, including the judge
who hears the case, and second, that by adopting this approach the judi-
ciary would inevitably be legislating, when this is not its function.200
In other words, Chief Justice Lamer feared that such a broad and open-
textured interpretation of liberty under section 7 would open up the door to
judges substituting their views for that of the legislature, not on the basis of
constitutional principle, but on the basis of their policy preferences. Thus, in
contrast to his decision in Prostitution Reference, but like his judgment in B.C.
Motor Vehicle Reference, Chief Justice Lamer operated within a conception of
the Lochner era that equated that era with judicial activism.
42 S. Choudhry
195 B.(R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 (Can.).
196 Id. at 368.
197 Id. at 369–70 (Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S.
510 (1925)).
198 Id. at 370.
199 Id. at 347.
200 Id. at 347–48.
3.2. Lochner and the legislative override
Another aspect of the Charter that has prompted constitutional actors to grap-
ple with Lochner’s legacy is the legislative override, also referred to as the non
obstante or “notwithstanding” mechanism.201 The legislative override is the
distinctive Canadian contribution to the countermajoritarian dilemma and
has generated considerable comparative interest. By offering an alternative set
of institutional arrangements to Marbury-esque judicial supremacy, the over-
ride strikes a different balance between judicial review and legislative sover-
eignty. The override allows provincial legislatures and the federal Parliament
to enact laws that would otherwise be unconstitutional because they unjusti-
fiably limit certain Charter rights. Declarations issued pursuant to the override
are effective for up to five years but can be renewed. The list of rights subject to
the override is quite broad and encompasses the “fundamental freedoms”
(religion, expression, assembly, and association), the so-called “legal rights”
(i.e., rights attaching to persons in their dealings with the criminal justice sys-
tem), and the right to equality. However, a number of important rights are
beyond the override’s scope, including the “democratic rights” (e.g., the right
to vote), the “mobility rights,” and the minority-language rights that were so
central to the Charter project for Trudeau.
Other than these restrictions on the range of rights to which the override
applies, the text of the override clause contains no substantive limits on its use.
This led some scholars to propose that declarations issued pursuant to the
override would be subject to some sort of judicial review,202 a suggestion sum-
marily rejected by the Supreme Court.203 The override’s requirements of form
have been given a generous interpretation that does not significantly constrain
their use.204 Furthermore, despite suggestions that the override should be used
only after and in response to judicial findings of unconstitutionality—i.e., that
it function as a suspensive veto—the text of the provision does not itself
The Lochner era and comparative constitutionalism 43
201 Charter, supra note 10, § 33.
202 Daniel J. Arbess, Limitations on Legislative Override under the Canadian Charter of Rights and
Freedoms: A Matter of Balancing Values, 21 OSGOODE HALL L.J. 113 (1983); Brian Slattery, A Theory
of the Charter, 25 OSGOODE HALL L.J. 701 (1987).
203 Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 (Can.).
204 Section 33 provides that “notwithstanding” declarations must “expressly declare” that the
override is being invoked; the declarations must be contained in “an Act of Parliament or of
the legislature”; and that declarations must state “that the Act or a provision thereof shall operate
notwithstanding a provision included in section 2 or sections 7 to 15 of the Charter.” But the
Court has rejected constitutional challenges to boilerplate declarations that neither identified nor
spelled out the specific rights that were being overridden, the insertion of this boilerplate declara-
tion in a large mass of previously enacted legislation through a single omnibus statute, and the
inclusion of this declaration in all subsequent legislation through a single law enacted in advance.
For d , [1988] 2 S.C.R. 712. For a full discussion, see Lorraine E. Weinrib, Learning to Live With the
Override, 35 MCGILL L.J. 541 (1990).
impose such a requirement. Accordingly, it can and has been used preemp-
tively to immunize legislation from Charter scrutiny.205
The genealogy of the override is unclear, in large part because the course of
federal-provincial negotiations precluded the development of a detailed writ-
ten record.206 Federal-provincial negotiations collapsed in the fall of 1980,
with the federal government opting to proceed unilaterally in securing the
adoption of a Charter without a legislative override. As a direct consequence,
44 S. Choudhry
205 For a comprehensive review of this legislation, see Tsvi Kahana, The Notwithstanding
Mechanism and Public Discussion: Lessons from the Ignored Practice of Section 33 of the Charter,
44 CAN. PUB. ADMIN. 255 (2001).
206 The most widely popularized account is offered by Canadian expatriate and legal scholar Paul
Weiler, who takes credit for having “launched” the notion of the legislative override in a public lec-
ture in 1979. Paul C. Weiler, Rights and Judges in a Democracy: A New Canadian Version, 18 U. MICH.
J.L. REFORM 51, 79–80 (1984) [hereinafter Rights and Judges in a Democracy]. This lecture was sub-
sequently published. Paul C. Weiler, Of Judges and Rights, or Should Canada Have a Constitutional Bill
of Rights? 60 DALHOUSIE REV. 205 (1980). According to Weiler, his lecture “was the only written
brief” in favor of a legislative override, but (save for a conversation with the premier of
Saskatchewan) his “argument remained in academic obscurity” until September 1981, when the
Supreme Court of Canada injected new life into failed constitutional negotiations. Weiler, Rights
and Judges in a Democracy, supra note 206, at 80 n.97. Weiler states that prior to the final round of
negotiations in November 1981, he “spoke personally” to various senior civil servants and public
officials, who then negotiated a charter with the override. Id. Although there is some independent
support for Weiler’s description of his own role (SHEPPARD & VALPY, supra note 106, at 259), his
claim of primary authorship is questionable. Peter Lougheed, premier of Alberta during the nego-
tiations, stated in the Alberta legislature on the day immediately following the successful conclu-
sion of negotiations that he had raised the idea of the override in discussions with Trudeau in
February 1979. ALBERTA HANSARD 1502 (Nov. 6, 1981). Many years later, in a public lecture,
Lougheed put the date of his support of the override at September 1980. Peter Lougheed, Why a
Notwithstanding Clause? 6 POINTS OF VIEW 1, 2 (1998). A Government of Alberta position paper,
dated October 1978, clearly proposes the idea of an override, lending support to Lougheed’s
claims. ALBERTA, HARMONY IN DIVERSITY: A NEW FEDERALISM FOR CANADA 22 (Government of Alberta
1978). Published accounts of the negotiations confirm that Alberta lobbied actively for the over-
ride, as did Saskatchewan. SHEPPARD & VALPY, supra note 106; ROMANOW ET AL., supra note 106, at
188–215; JANET L. HIEBERT, LIMITING RIGHTS: THE DILEMMA OF JUDICIAL REVIEW 163 n.43 (Univ. of
Toronto Press 1996). Finally, Howard Leeson, Saskatchewan’s deputy minister of intergovern-
mental affairs at the time, has recently provided documentary evidence that the override was
being discussed by federal and provincial governments as early as December 1978, well before
Weiler’s lecture. Howard Leeson, Section 33, The Notwithstanding Clause: A Pa per Tiger? 6 CHOICES,
June 2000, at 1, 9–10 (2000) (quoting a Saskatchewan government briefing note). Indeed, a fed-
eral draft of the Charter dated January 8, 1979, contains proposed language for the legislative
override. Federal Government Discussion Draft, Jan. 8, 1979, § 131(5)(b), reprinted in 2 BAYEFSKY,
supra note 83, at 547. Weiler, Lougheed, and Neeson agree that the leading model for the override
was the non obstante provision in the Canadian Bill of Rights. Section 2 provides that “[e]very law
of Canada shall, unless expressly declared by an Act of the Parliament of Canada that it shall oper-
ate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate,
abridge, or infringe or to authorize the abrogation, abridgment, or infringement of any of the
rights or freedoms herein recognized and declared. ...” Canadian Bill of Rights, ch. 44, 1960
S.C. 519 (Can.), reprinted in R.S.C. app. III (1985) (Can.).
the Hays-Joyal Committee did not discuss the override at all. The override was
added to the Charter during the final round of constitutional negotiations in
November 1981. However, these were closed-door discussions, and the final
text of the Charter was sent to Westminister for adoption without any hear-
ings before a parliamentary committee in Canada.
However, useful information can be gleaned from some of the statements
offered by key negotiators in the immediate wake of the successful conclusion
of negotiations. On the one hand, there were those who clearly viewed the
override as a compromise born of political expediency, rather than high con-
stitutional principle. The sense was that the override was the price to be paid
for near-unanimous provincial agreement, as opposed to an important inno-
vation in constitutional design. A charter with an override was better than no
charter at all. Premier Bill Davis of Ontario, for example, stated that “[w]e are
not totally satisfied, yet. . . it was better to have something less than perfec-
tion.”207 This view was echoed by Trudeau.208 But other participants
described the override not as part of a second-best solution but as preferable to
a fully entrenched bill of rights with no possibility for legislative response. For
example, the federal minister of justice, Jean Chrétien, stated in the House of
Commons that the override “is a safety valve to correct absurd situations with-
out going through the difficulty of obtaining constitutional amendments.”209
Premier Allan Blakeney of Saskatchewan also described the override “as a
constitutional escape valve,”210 and Ontario’s minister of intergovernmental
affairs referred to the override as “an added protection” that enables legisla-
tures “to correct some wrong .. .brought about by some judicial decision.”211
The idea that legislatures should possess a mechanism for overturning
court judgments harkens back to the interinstitutional conflict sparked by the
New Deal that marked the end of the Lochner era. Not surprisingly then,
Lochner has been invoked by defenders of the override, but for two different
purposes. First, Lochner has been used to specify the dangers of judicial
review—i.e., what kinds of errors might prompt the legitimate use of the over-
ride. Among the provincial premiers, the most articulate opponent of the
The Lochner era and comparative constitutionalism 45
207 127 ONTARIO LEGISLATIVE ASSEMBLY DEBATES 4556 (Dec. 11, 1981).
208 HOUSE OF COMMONS DEBATES 13439 (Nov. 27, 1981) (“This did mean on this side giving up quite
a bit. It meant telling the premiers: We will give in to you when you want a non obstante clause . . .”).
And the momentum that had developed for the entrenchment of constitutional rights meant that
it was just a matter of time before this imperfection would be narrowed and perhaps removed
through constitutional amendment. As Davis said, “it will not be many years before the funda-
mental rights will be part of the entrenched part of the Charter” (i.e., not subject to the override).
LEGISLATIVE ASSEMBLY OF ONTARIO DEBATES 3265 (Nov. 6, 1981).
209 HOUSE OF COMMONS DEBATES 13043 (Nov. 20, 1981).
210 DEBATES AND PROCEEDINGS OF THE LEGISLATIVE ASSEMBLY OF SASKATCHEWAN 401 (Dec. 9, 1981); id. at
134 (Dec. 2, 1981).
211 119 ONTARIO LEGISLATIVE ASSEMBLY DEBATES 4269 (Dec. 7, 1981).
Charter was Blakeney, a social democrat. His basic fear, as some commentators
have described it, was that “[e]ntrenchment would transfer political power to
the courts, which were generally conservative and would oppose redistribu-
tion of power and wealth in society.”212 Blakeney argued that “[n]o democratic
socialist ...should voluntarily hand power from the political forum, where the
policies of the majority find expression, to the judicial forum.”213 Blakeney’s
opposition to the Charter drew on a number of sources. One was the left’s tra-
ditional suspicion of Canadian courts because of their historical antipathy
toward unions. Another was the comparative experience of the United States.
Blakeney testified before the Special Joint Senate and House Committee that
section 7 posed the risk of courts striking down socioeconomic legislation in
the manner of the Lochner Court.214 Blakeney’s attorney general, Roy
Romanow, also wrote that the experience of the Lochner Court underlay
Blakeney’s support for the override, in order to protect the possibility of social
democratic public policies.215 The leading academic defender of the override,
Peter Russell, expressed the same view, describing Lochner as the paradigmatic
case of judicial error:
For anyone familiar with the history of judicial review in the United
States . .. it is difficult to believe in the infallibility of judges. In American
history, the decisions of the Supreme Court in Lochner and other early
twentieth century cases denying state legislatures the power to ensure
vulnerable workers decent conditions of employment are reminders of
the injustice and harm than can flow from judicial decisions interpreting
constitutional guarantees.216
David Schneiderman makes the same point, arguing that the override “would
have been valuable” during the Lochner era, because “the judiciary was insuf-
ficiently attentive to the needs of society and the demands made upon the
government to counteract the force of the market.”217
46 S. Choudhry
212 ROMANOW ET AL., supra note 106, at 110.
213 Id.
214 SHEPPARD & VALPY, supra note 106, at 145 (describing Blakeney’s written submissions to the
Hays-Joyal Committee).
215 Roy Romanow, “Reworking the Miracle”: The Constitutional Accord 1981, 8 QUEENSL.J. 74,
92–93 (1982–83) [hereinafter Reworking the Miracle]. After the agreement on the text of the
Charter, Blakeney gave mandatory retirement laws and legislatively mandated union shop agree-
ments as two examples of laws that could be struck down by the Charter. DEBATES AND PROCEEDINGS
OF THE LEGISLATIVE ASSEMBLY OF SASKATCHEWAN 400 (Dec. 9, 1981). It is worth noting that Blakeney
testified in favor of an override provision before the Hays-Joyal Committee in December 1980. 30
HAYS -JOYAL COMMITTEE MINUTES OF PROCEEDINGS, supra note 92, at 39 (Dec. 19, 1980).
216 Peter H. Russell, Standing Up for Notwithstanding, 29 ALTA. L. REV. 293, 297–98 (1991).
217 David Schneiderman, Prologue, in Lougheed, supra note 206, at iii–iv.
Second, proponents of the override have invoked Lochner not to illustrate
the sorts of laws the override could legitimately be used to defend but to sug-
gest that it is the best sort of institutional response to deeply controversial judi-
cial decisions. To some extent, this argument is in tension with the first
invocation of Lochner, because it concedes that in conflicts between legisla-
tures and courts, legislatures will ultimately prevail, echoing Robert Dahl’s
famous argument.218 For its proponents, the override has significant advan-
tages over the alternative—the power to make judicial appointments—that lay
at the heart of the New Deal crisis. The concern here is one of legitimacy, and
the comparison with the Court-packing plan is direct. Peter Lougheed, premier
of Alberta during the negotiations, writes:
The most familiar example of an attempt to change the direction of the
Court’s decisions by using the appointment power is found in the “New
Deal” crisis of the 1930s, where President Roosevelt wanted to increase
the size of the Court in order to appoint judges who would support his
“New Deal” legislation. ...In Canada, the entrenchment of section 33
[the override] appears to prevent the need to abuse the judicial appoint-
ment process . ..219
Peter Russell shares Lougheed’s assessment, and adds “court-bashing” to the
menu of undesirable options:
Absent a Canadian-style legislative override, court-packing or court-
bashing are the devices to which democratic leaders are most likely to
resort when faced with judicial interpretations of the constitution they
consider to be seriously unjust and harmful. These devices may yield rel-
atively quick results as was the case with Roosevelt’s threat to pack the
U.S. Supreme Court. . . . [C]ourt-packing or court-bashing, involving as
they do the application of raw majoritarian power to the judicial branch,
would seem less appropriate devices than legislative debate and discus-
sion for challenging judicial decisions.220
In the most recent defense of the override, Kent Roach has made the same
point, highlighting that the notwithstanding mechanism is “much less diffi-
cult and dangerous” than the Court-packing threatened during the New
Deal.221
The Lochner era and comparative constitutionalism 47
218 Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,
6J. PUB. L. 279 (1957).
219 Lougheed, supra note 206, at 12. The other alternative Lougheed considers is to disobey
Supreme Court judgments, citing the refusal of Lincoln to enforce “a decision by the Supreme
Court in a case involving civil rights” (Id. at 12). He disapproves of this mechanism as well.
220 Russell, supra note 216, at 298.
221 KENT ROACH, THE SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE 249 (Irwin
Law 2001).
To its defenders, the override serves as an outlet, channeling potentially
dangerous and destructive responses to judicial decisions into legislative
forums where brute power is tempered by the demands of public justification
and the procedures of parliamentary democracy. Moreover, it is a more precise
instrument than the alternatives, since it permits legislatures to address spe-
cific rulings, unlike the indirect and blunt mechanisms of personnel change or
political pressure. Finally, unlike court-packing (and court-bashing), the over-
ride enables a response to courts that does not undermine their independence
and impartiality, thereby protecting their institutional legitimacy. It is, there-
fore, somewhat ironic, as Bruce Ackerman has noted, that a constitutional
amendment creating a congressional override was advocated by New Dealers
who were opposed to the Court-packing plan for the very same reasons put
forth by proponents of the override.222
4. Conclusion
The use of Lochner discourse in the Canadian constitutional system offers a
number of lessons for both the study and practice of comparative constitutional
law. But these lessons are best approached through a broader discussion of the
challenge that the globalization of the practice of modern constitutionalism
poses to traditional conceptions of constitutionalism and relatedly, the very
point and structure of the comparative constitutional enterprise. The increased
migration of constitutional forms stands at odds with one of the dominant
understandings of constitutionalism—that the constitution of a nation
emerges from, embodies, and aspires to sustain or respond to a nation’s partic-
ular national circumstances, most centrally, its history and political culture.
Indeed, for some countries, particularly those with a diverse citizenry, lacking a
prior or prepolitical bond of ethnicity, religion, or race, constitutions are an
important component of national identity and reflect one way in which those
nations view themselves as distinct from others.
On this account—one of legal particularism—constitutions should only be
framed and interpreted by reference to sources internal to a national legal sys-
tem. The use of comparative materials is, at best, a curiosity of no practical rel-
evance and of marginal academic importance, and, at worst, a form of legal
imperialism. The American constitutional system is, perhaps, the most promi-
nent example of a constitutional regime that is steadfast in its commitment to
legal particularism, a stance all the more striking in light of the increasingly
comparative outlook of other jurisdictions. Justice Antonin Scalia’s
well-known admonition that “comparative analysis [is] inappropriate to the
48 S. Choudhry
222 2 ACKERMAN, WE THE PEOPLE, TRANSFORMATIONS, supra note 16, at 321–24. See also Gerald V. La
Forest, The Canadian Charter of Rights and Freedoms: An Overview, 61 CAN. B. REV. 19, 25–6 (1983)
(explaining, with reference to the United States, how legislatures ultimately prevail over courts,
but that the override offers a preferable mechanism for allowing legislatures to have the last word).
task of interpreting a constitution” is representative of the mainstream of
American judicial practice.223 And American constitutional practice is tracked
by American constitutional theorists, who tend to rely overwhelmingly on
local or particular sources—e.g., the origins of the framers, American political
traditions—as aids to constitutional interpretation, suggesting that those
sources secure the legitimacy of judicial review, even if their actual use is only
rhetorical. Bruce Ackerman’s memorable call for an indigenous approach to
constitutional theory, “[t]o discover the Constitution ...without the assistance
of guides imported from another time and place,”224 reflects the mind-set of
American constitutional thought.
Committed particularists hold the view that no country can learn from any
other. However, legal particularism can be juxtaposed to a radically different
stance on the value of comparative constitutional law. To some, certain consti-
tutional experiences exert a hegemonic influence over domestic constitutional-
ism in other jurisdictions, structuring the very terms of debate, and, if not
dictating, at least pointing to the path that constitutional framings and inter-
pretations should take. And the dominant constitutional model that many
commentators point to, almost invariably, is that of the United States. This has
led some American commentators to hold that while America has little to learn
from comparative constitutional experience, foreign jurisdictions can learn a
great deal from the United States. Accordingly, the direction of comparative
insight flows from America outward, and not the other way around. Steven
Calabresi’s statement that “[t]he rest of the world is quite rightly impressed with
us, and it is thus no accident that the United States of America has become the
biggest single exporter of public law in the history of humankind” is perhaps
the most extraordinary example of this kind of conceit.225 Even the elder
The Lochner era and comparative constitutionalism 49
223 To be sure, David Fontana has documented many instances in which justices of the U.S.
Supreme Court have drawn support from foreign legislative practice, to hold either that certain
policies are constitutionally prohibited (Stanford v. Kentucky, 492 U.S. 361 (1989), whether crim-
inal sanctions contravene norms so “implicit in the concept of ordered liberty” that they are “cruel
and unusual punishment” under the Eighth Amendment) or conversely, that certain policies are
constitutionally permitted (McGowan v. Maryland, 366 U.S. 420 (1961) (Sunday closing laws)).
David Fontana, Refined Comparativism in Constitutional Law, 49 UCLA L. REV. 539, 544–49,
574–91 (2001). However, to describe these references as invocations of comparative constitu-
tional law is somewhat misleading, for the fact that a policy does or does not exist in a foreign con-
stitutional order is of little relevance if that order lacks restraints analogous to those under
consideration. Indeed, it is striking that the link between foreign legislative experience and foreign
constitutional text and interpretation is rarely if ever made by the U.S. Supreme Court, a fact that
casts real doubt on the claim that American justices are engaging in comparative constitutional
law. This is Vicki Jackson’s view. Vicki C. Jackson, Narratives of Federalism: Of Continuities and
Comparative Constitutional Experience, 51 DUKE L.J. 223 (2001).
224 1 ACKERMAN, WE THE PEOPLE, FOUNDATIONS, supra note 16, at 3.
225 Here is what Steven Calabresi says in full:
[T]he Federalist Constitution has proved to be a brilliant success, which unitary nation
states and parliamentary democracies all over the world would do well to copy. I give it most
Calabresi has referred to the relationship between the American Constitution
and the constitutions of other jurisdictions as analogous to that between a
“parent” and its “constitutional offspring.”226
Lochner discourse poses a challenge to both the particularist and the hege-
monic strands of comparative constitutional discourse. To understand why, we
need to consider the limitations of both approaches. Legal particularism has
come under attack from two sources. One proceeds from the claim that consti-
tutional guarantees are cut from a universal cloth, and that comparative mate-
rials are a source of insight into the articulation and application of
transcendent legal principles, notwithstanding allegedly superficial differences
among constitutional texts. Comparative jurisprudence, for example, serves an
evidentiary function, providing valuable articulations of the political theories
underlying particular constitutional rights and of how those rights are to be
applied in concrete cases. The second response is functionalist and begins from
the observation that constitutional analysis often addresses the empirical
effects of the constitutional structures and doctrines that are the means for
implementing constitutionally mandated ends (e.g., federalism). However, the
degree and likelihood of success of these various means are empirical ques-
tions that figure legitimately into questions of constitutional choice. The func-
tionalist thesis is that comparative experience assists in constitutional analysis
as a source of data. By eschewing comparative investigation, we forsake alter-
native solutions. Stephen Gardbaum has argued, for example, that there is an
emerging model of “Commonwealth Constitutionalism” that at once permits
legislatures to have the final say, while allowing courts to scrutinize public
policies for compliance with fundamental rights, offering an alternative set of
institutional arrangements to the extremes of legislative sovereignty and
Marbury-style judicial supremacy.227
50 S. Choudhry
of the credit for the fact that ours is the wealthiest, most technologically advanced, and
most socially just society in human history, not to mention the fact that we have with ease
become a military superpower....The rest of the world is quite rightly impressed with us,
and it is thus no accident that the United States of America has become the biggest single
exporter of public law in the history of humankind. Almost wherever one looks, written
constitutions, federalism, separation of powers, bills of rights, and judicial review are on
the ascendancy all over the world right now—and for a good reason. They work better than
any of the alternatives that have been tried.
Steven G. Calabresi, An Agenda for Constitutional Reform, in CONSTITUTIONAL STUPIDITIES,
CONSTITUTIONAL TRAGEDIES 22 (William N. Eskridge & Sanford Levinson eds., New York Univ. Press
1998).
226 United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J., concurring). Some
American scholars take a very different view. See, e.g. Ackerman, supra note 9.
227 Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP. L. 707
(2001). Doctrinally, Justice Breyer’s argument in Printz v. United States, 521 U.S. 898, 976–78
(1997), that the “commandeering” of the officials of the constituent units of federations, such as
Germany, Switzerland, and the European Union, to implement federal policies may actually be
more rather than less protective of local autonomy, is another example of functional analysis.
Both the normative and functionalist critiques of legal particularism are
deeply controversial. The normative argument runs head-on into cultural rel-
ativism, which holds that moral and political values are not universal but are
tightly connected to particular cultural contexts. Whatever the merits of this
debate, it is fraught with controversy. As a consequence, the legitimacy of uni-
versalist modes of comparative constitutional reasoning will constantly be put
in question. The functionalist argument encounters difficulty when faced with
the objection that the viability of doctrinal or structural transplants is often a
function of the “the constitutional and social context” in which they operate,
such as the design of other legal institutions and the facts of political sociol-
ogy.228 On the latter point, Mark Tushnet’s analysis of a potential constitu-
tional transplant—the notion of legislator standing, well established in
Germany and France but constitutionally controversial in the United
States229—is telling.230 Tushnet clearly favors this doctrinal development in
the United States, noting that it has not disrupted the relationship between the
executive and legislative branches in France and Germany. But he himself
acknowledges that “the effects of legislator standing may differ in systems
with centralized rather than dispersed judicial review, in those with and with-
out a well-organized public interest bar, and in those with parliamentary
rather than divided powers political systems,”231 meaning that “[a] function-
alist analysis of comparative experience with legislator standing allows us to
draw some modest conclusions,”232 but not much more.
Shifting the viewfinder to Canada enriches and recasts the terms of debate
over the use of comparative constitutional materials. By focusing on a juris-
diction where comparativism is a widespread and well-established part of con-
stitutional discourse, Lochner discourse yields important insights otherwise
inaccessible when relying on jurisdictions notorious for their resistance to
comparative legal sources. This is the principal limitation of recent American
contributions to the critical literature,233 which have focused on American
materials instead of concrete examples providing a richer picture of the phe-
nomenology of comparative constitutional law, and, as a consequence, offer
little basis for understanding the practice of comparative constitutional
argumentation.
The Lochner era and comparative constitutionalism 51
228 Matthew D. Adler, Can Constitutional Borrowing Be Justified? A Comment on Tushnet, 1 U. PA. J.
CONST. L. 350, 356 (1998).
229 Raines v. Byrd, 521 U.S. 811 (1997).
230 Mark Tushnet, Returning with Interest: Observations on Some Putative Benefits on Studying
Comparative Constitutional Law, 1 U. PA. J. CONST. L. 325 (1998).
231 Id. at 348.
232 Id.
233 Tushnet, supra note 230; Fontana, supra note 223; Jackson, supra note 223.
What lessons does Lochner discourse hold for students of comparative con-
stitutional law? Most fundamentally, Lochner discourse illustrates how com-
parative materials can be used in a way that is neither particularist nor
universalist, and thus sets to one side a debate that has become deadlocked,
futile, and sterile. The starting point is the recognition that a claim to consti-
tutional distinctiveness is inherently relative; a constitution is only unique
by comparison with others which may lack some feature that constitution
possesses. Accordingly, a keener awareness and a better understanding of
difference can be achieved through a process of comparison. I term this use of
comparative constitutional materials—as a way of facilitating a greater
understanding of one’s own legal system—dialogical.234 Under the dialogical
model, constitutional actors engage with comparative constitutional materi-
als, not with a primary goal of apprehending all their details with exacting
accuracy but, instead, for the purpose of identifying the normative and factual
assumptions upon which they are based, or the lessons that have been ascribed
to them in the constitutional discourse of that jurisdiction. Canadian consti-
tutional actors, for example, have engaged in discussion of the Lochner era not
to better understand the finer aspects of the Lochner Court’s holdings but to
locate within that era more-abstract conceptions of the appropriate relation-
ship between state and market, lessons regarding the nature of the judicial
role, and the institutional costs of sustained and prolonged conflict between
courts and democratically accountable institutions.
At the end of the day, under the dialogical model, the engagement with
comparative materials facilitates constitutional choice, because it clarifies the
implications of certain institutional, textual, and interpretive options. And it
does this for a whole range of constitutional actors, each involved at various
stages in the life cycle of a constitution—constitutional framers, courts, liti-
gants, and members of the public. For example, in the Canadian constitutional
system, the Lochner era has suggested the path not to be taken during both the
framing and the interpretation of the Charter. Specific features of the
Charter—the omission of property interests, the choice of “fundamental jus-
tice” over “due process,” the inclusion of the legislative override—can be
understood as deliberate choices meant to preclude the emergence of various
aspects of Lochner’s legacy in Canada. And in the subsequent interpretation of
section 7, the imperative of avoiding Lochner has been a driving force. The dia-
logical model refutes the particularist claim that there is nothing to be gained
from an examination of comparative constitutional materials. As Lochner
52 S. Choudhry
234 Vicki Jackson has expressed a similar view, writing that “[e]ven if the reasoning of a foreign
court ultimately is rejected, explaining why it is inapplicable or wrong could improve the quality
of the Court’s reasoning, making its choices more clear to the audience of lawyers, lower courts,
legislators, and citizens. The transnational discourse of constitutional decisionmaking provides a
broader arena for this kind of constitutional accountability conversation.” Jackson, supra note
223, at 260–61.
discourse illustrates, an engagement with comparative experience may sharpen
constitutional actors’ awareness of constitutional difference. Moreover, the
dialogical mode of comparative constitutional argumentation does not raise
the specter of illegitimacy in the manner that some particularists fear. The
reliance on comparative constitutional materials does not necessarily assimi-
late constitutional actors into a larger transnational conversation about
rights, courts, and democracy. A sophisticated and literate comparativism
need not be tantamount to the embrace of universalist conceptions of
constitutionalism.
The status of the Lochner era in Canadian constitutional thought also serves
as an antidote to a narrow functionalism. To be sure, the framing of the over-
ride in light of the Court-packing crisis during the New Deal proceeded on the
basis of a functional use of comparative constitutional history. But for the
most part, rather than providing empirical data for the project of institutional
design, the Lochner era looms as a parable or a cautionary tale. Lochner is
regarded as a powerful symbol of deep and profound constitutional failure,
which transcends the particulars of the individual judgments and interinsti-
tutional conflicts that constituted the Lochner era. The invocation of Lochner
operates rhetorically as an epithet, as a signal of potential danger. Indeed, the
ongoing citation of Lochner by constitutional negotiators, litigants, and courts
to delegitimize constitutional claims bears vivid testimony to its rhetorical
power. So, too, do the attempts to redescribe claims to protect economic liberty
as a way to avoid the taint of Lochner’s libertarianism. To be sure, the rhetori-
cal power of Lochner also speaks to the widespread literacy in American con-
stitutional history and jurisprudence among Canadian constitutional
actors—an important component of Canada’s constitutional sociology. In this
light, references to Lochner that are brief and rather cursory, rather than indi-
cating a lack of familiarity with Lochner should, instead, be understood as the
use of a code for a set of constitutional ideas, and a historical episode, that has
become part of the intellectual vocabulary of global constitutionalism.235
Lochner discourse is a particularly rich interpretive resource for jurisdictions
whose experience with constitutionalism is in its preliminary stages. Rather
than waiting for a suitable domestic constitutional narrative to unfold, the
Lochner era offers a comparative narrative that is ready for the taking. No
doubt, this is an important explanation for the prevalence of Lochner discourse
in Canada. Although constitutional judicial review on federalism grounds had
existed since the mid-nineteenth century under the constitution Act, 1867,
that document contained few entrenched rights.236 The absence of domestic
The Lochner era and comparative constitutionalism 53
235 For an early example of comparative work that was critical of Lochner and relied on Lochner as
a basis for opposing judicial review, see ÉDOUARD LAMBERT, LE GOUVERNEMENT DES JUGES ET LA LUTTE
CONTRE LA LÉGISLATION SOCIALE AUX ÉTATS -UNIS: L’EXPÉRIENCE AMERICAINE DU CONTROLE JUDICIAIRE DE LA
CONSTITUTIONNALITE DES LOIS (Marcel Giard & Cie 1921).
236 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C., app. II, No. 5 (1985).
precedents provided the opportunity and impetus for the framers of the
Charter to turn to the American experience. Similarly, the relentlessly com-
parative approach to the drafting of the Charter, coupled with the absence of a
body of domestic jurisprudence, meant that courts and litigants naturally
turned to American constitutional history and jurisprudence to shape the
interpretation of the Charter. And again, the widespread literacy in American
materials contributed to the willingness of constitutional actors to accept
Lochner as a common reference point.
Lochner discourse also illustrates that the negative meanings of comparative
constitutional experiences are complex. The three meanings of Lochner require
constitutional actors that reject Lochner to clarify which aspect of Lochner’s
legacy they are rejecting. In the Canadian case, for example, the drafting his-
tory of the Charter reveals considerable disagreement over the lessons that the
framers drew from Lochner. That disagreement was reflected in the early texts
of the Charter, and the supporting documentation and testimony. At best, we
can say that the drafters of the Charter decisively rejected Lochner’s economic
libertarianism. However, they were divided sharply over the lessons they drew
from the critique of Lochner’s judicial activism, a disagreement that runs
through the subsequent jurisprudence and that remains unresolved. It is a tes-
tament to the power of Lochner, though, that the participants in this debate
invoke different conceptions of anti-Lochnerism. Interestingly, the image of
constitutional crisis is largely absent from Canadian constitutional jurispru-
dence. However, it has been central to the justification of the override. Indeed,
the two phenomena may be linked, since the possibility of the override was
designed to diminish courts’ anxiety about constitutional judicial review
(although it is far from clear that the override has had this effect).237
Finally, Lochner discourse disrupts the simplistic picture of the hegemonic
place of the American constitutional experience in the global constitutional
imagination. On the one hand, it is clear that the drama of the Lochner era and
the New Deal crisis looms large, occupying a central place in the emerging
global constitutional consciousness. Indeed, the fact that the Lochner era is
thoroughly discredited within the mainstream of American constitutional
thought marks a critical point of convergence. Lochner serves as a negative
model both within and outside the United States. But Lochner discourse also
demonstrates that the globalization of legal knowledge need not result in the
homogenization of political and legal order. The constitutional choices made
during the drafting and interpretation of the Charter go far beyond the post-
Lochner settlement in the United States. The Charter excludes the direct pro-
tection of economic rights; it was envisioned originally as providing strictly
procedural protection under the due process clause; and it contains a safety
54 S. Choudhry
237 Sujit Choudhry, Book Review, 1 INTLJ. CONST. L (I•CON). 379, 385–89 (2003) (reviewing
CHRISTOPHER P. M ANFREDI, JUDICIAL POWER AND THE CHARTER: CANADA AND THE PARADOX OF LIBERAL
CONSTITUTIONALISM (2001)) (discussing the override).
valve that avoids the need to consider changing the composition of the courts
to reverse controversial decisions. Lochner discourse accordingly demonstrates
that learning across jurisdictions through the use of comparative legal mate-
rials can thus provide both the impetus for, and the resources to strengthen,
moments of constitutional difference. Legal globalization is not necessarily the
handmaiden of legal imperialism.
The Lochner era and comparative constitutionalism 55
Article
This special issue features a curated set of contextualized case studies that interrogate how six Asian countries have calibrated global imperatives with domestic desires and concerns during the drafting of their latest constitution. Read together, the accounts demonstrate that the impact of globalization on what has long been thought of as a quintessential exercise of national sovereignty is ubiquitous, yet that the precise combination of the global and the local is unique to each country, determined as it is by the strength of domestic interests and factions. Taking contextualized functionalism as its premise,