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Cornell Law Review

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Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of "Lochnerism."' The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today's revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process as a genuine, albeit unsuccessful, attempt to apply constitutional protections for property and contract in light of the economic, social and political situation in the late nineteenth century. The revisionist account of Lochnerism is likely to replace the dominant historical view and to transform a central understanding of the American constitutional tradition. In particular, this view of Lochnerism will likely influence the analysis of constitutional protection of economic rights. This Article will demonstrate that both sides have overlooked a key element in the progression of economic rights protection from the early nineteenth century through the Lochner era to the present day: the changing conception of the principle of non-retroactivity. This oversight may not be surprising in one sense, for the modem view-traceable to the Lochner era itself-is that the principle of nonretroactivity is simply a mask for substantive review. But it was not always so. The principle of non-retroactivity, heavily dependent upon the notion of vested rights, was the primary organizing idea in the constitutional economic rights protection that preceded the Lochner era of substantive due process.