Constructing the Substantive Constitution

I. Introduction A. The Flights from Substance in Constitutional Theory A specter is haunting constitutional theory-the specter of Lochner v. New York.\u27 In the Lochner era, the Supreme Court gave heightened judicial protection to substantive economic liberties through the Due Process Clauses.2 In 1937, during the constitutional revolution wrought by the New Deal, West Coast Hotel v. Parrish3 officially repudiated the Lochner era, marking the first death of substantive due process.4 Nevertheless, the ghost of Lochner has perturbed constitutional theory ever since, manifesting itself in charges that judges are Lochnering by imposing their own substantive fundamental values in the guise of interpreting the Constitution