Texas Supreme Court gives itself power to strike down health & safety regulation

[stjaba]

Yes I read it.  It is wrong.  There was no such substantial body of state law.  The majority opinion in Wynehamer used the words "due process" but not at all in the same sense at Lochner.  The majority holding in Wynehamer was that the regulation was beyond the power of the legislature because it involved the outright destruction of property.  Put into modern terminology, it was a takings case, but one that invoked the language of due process. 

In Lochner, the substantive content of due process is that laws effecting liberty must be reasonable.  That is totally orthogonal to the doctrine of Wynehamer - there the majority opinion conceded the reasonability of the regulation.  Had the Lochner doctrine applied, the law would have been upheld.  The Wynehamer court ruled otherwise on the theory that any law annulling a property right is simply beyond the legislative power, regardless of object.

Wyehamer drew a sharp dissent and lots of critical commentary.  Needless to say, prohibition laws were adopted all over the US in subsequent decades and the vast majority of states rejected Wynehamer; the doctrine in that case was finally repudiated by the US Supreme Court in Mugler v. Kansas. 

When SPD appeared in Lochner, it was on a very different theory and Wynehamer was not cited.  The case is really of only antiquarian or academic interest.  The thread you cited is a good illustration of the reason why I stopped following the volokh blog despite there being a lot of interesting stuff posted there; too often it becomes an echo chamber of fringeyness.

I agree that Wynehamer employs different reasoning than Lochner, but the point remains that the concept that due process protected substantive rights was not totally foreign in mid-19th century America. At a minimum whether that is the case is the subject to scholarly debate, and is not as though the Texas Supreme Court was inventing it out of the blue.

And specifically with regard to occupational licensing laws (which the Texas law is), the U.S. Supreme Court has acknowledged both pre and post-Lochner for reasons of due process, that those laws must not be "arbitrary and capricious," Dent v. West Virginia, 129 US 114 (1889), and have a rational basis. Schware v. Board of Bar Examiners of New Mexico, 353 US 232 (1957). Admittedly, the modern rational basis test is not a high standard to meet, but it is a not giant leap for the Texas Supreme Court to apply a slightly more rigorous test than the federal standard, given that it is a state court invalidating a state law under the state constitution. In any event, I do not read the Texas case as utilizing the Lochner standard, although the court discusses the history of Lochner and substantive due process in the opinion.

[Scipio]

Substantive due process is merely the reintroduction of the privileges and immunities clause of the 4th Article of the Constitution.

[The Minsky Moment]

Substantive due process is just a phrase that academics and jurists used to describe an array of legal doctrines and decisions usually (but not always) accompanied by references to "due process"

The Lochner doctrine refers to a particularized application and that is what is being invoked in this Texas case.

There is no lineal connection between Lochner and Wynehammer or any of the other antebellum state cases I am aware of that discuss due process in a non-procedural sense. There may be a some submerged lineal connection to Dred Scott although obviously the justices in 1905 would never acknowledge it.

Lochner was the product of a particular ideology and way of thinking that emerged in the late 19th century bringing together "liberal" economic theory, a robust sense of judicial power, and a technocratic, elitist sensibility.  As opposed to the antebellum cases that flow from traditional late 18th century conceptions of limited government,