Article by Michael G. Collins
Constitutional scholars have long sought to locate the roots of the “Lochner era” during which the United States Supreme Court actively enforced implied limits on governmental regulatory power. While much attention has been paid to the pre-Lochner development of substantive due process principles in the state courts, less attention has been paid to the contemporaneous development of similar principles by the federal courts in the exercise of their diversity of citizenship jurisdiction. Throughout the nineteenth century—and before the Fourteenth Amendment's Due Process Clause came into its own—federal diversity courts often construed state constitutional law in suits brought by out-of-state citizens raising challenges to state and local legislation. Operating under the now discarded regime of Swift v. Tyson, these courts actively fashioned a body of uniform (but nonfederal) constitutional law, often echoing natural-law sentiments, that sharply limited the scope of legitimate governmental action. As discussed in this Article, many of the principles developed on diversity as “general constitutional law” would later be quietly absorbed as federal law under the Due Process Clause. Examination of these antecedents to Lochner thus sheds light on the federal courts' independence in construing state positive law under Swift and on the role that diversity jurisdiction played as an early surrogate for due process. It also supports the revisionist view of the Lochner era as characterized less by the development of novel constitutional doctrines than by the federalization of already familiar ones.
About the Author
Michael G. Collins. Professor of Law, Tulane University School of Law. B.A. Pomona College; J.D. Harvard Law School.
Citation
74 Tul. L. Rev. 1263 (2000)