COLUMBIA UNDERGRADUATE LAW REVIEW
Due Process from Lochner to Roe and Implications for Originalism David Haungs | University of Notre Dame Edited by: Anushka Thorat, Joyce Liu, Grayson Hadley, Niharika Rao, Meghan Lannon, Karun Parek, Ali Alomari Abstract Since the day Roe v Wade was handed down in 1973, it has been a target of conservative criticism on the grounds that it embraced an anti-democratic form of judicial activism previously ascendant in the early twentieth century. Drawing from a review of the literature in the fields of American legal history and jurisprudential theory, this article examines the development of the “substantive due process” doctrine from the Supreme Court’s controversial 1905 Lochner v New York decision to Roe with the goal of evaluating the criticism of abortion jurisprudence as Lochner-esque. This analysis rejects that comparison, finding that Roe’s version of substantive due process rests on a fundamentally different conception of liberty than its historical analog by conceiving of liberty as a fundamental personal right, rather than a privilege contingent on the individual’s relation to society. In this way, however, the Roe Court placed the right it identified even further outside the reach of legislatures, sustaining the thrust of the critique made against the Court. The piece then concentrates on the implications for the conservative criticism which motivated this inquiry. Ultimately, it suggests that the new originalist movement which now promulgates a conservative jurisprudence possesses a distinct and substantive interpretive framework by which it might reject Roe without resorting to an unconditional posture of judicial restraint. As a result, as originalist scholars gain renewed interest in protecting economic liberties, their jurisprudential approach could revitalize Lochner-esque results without compromising their long-standing opposition to the Court’s abortion jurisprudence.
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