Abstract

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 synonymous with economic libertarianism; this is the meaning given to Lochner by Chief Justice Antonio Lamer of the Supreme Court of Canada, in a case involving 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,'0 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.

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