Forgetting Lochner in the Journey from Plan to Market: The Framing Effect of the Market Rhetoric in Market-Oriented Reforms

Market-oriented economic reforms rhetorically employ Lochner-era constitutional concepts yet overlook Lochner's historical collapse, risking resurrection of discredited doctrines. Ngugi examines how contemporary market rhetoric in regulatory reform invokes Lochner's limited government approach while forgetting why Lochner was rejected. The article traces constitutional history from Lochner v. New York, which struck down labor regulations favoring economic liberty and property rights, through the New Deal's reconceptualization of constitutional protections. Lochner's judicial invalidation of progressive reforms gave way to greater deference to legislative economic regulation. However, modern market-oriented reforms employ similar limiting government rhetoric without engaging Lochner's failed history. Ngugi argues this forgetting of Lochner risks reintroducing constitutional constraints on regulation that proved dysfunctional in Depression-era America. Market reformers employ framing that privileges market mechanisms and limits government capacity, echoing Lochner's assumptions about limited government and economic liberty. The article contends that market rhetoric's framing effects work to reconstruct limitations on government power previously rejected through constitutional transformation.

Topics: Constitutional Law · Legal History

Keywords: Lochner v. New York · market rhetoric · constitutional reform · economic regulation · limited government · New Deal · judicial review