QUESTION: I want to make sure I understand the difference between what Lochner said and the way it is now. From my understanding, Lochner said that the right to contract was fundamental and that a state cannot regulate an individual economic right to contract (like minimum hours). Now, all the state needs is a legitimate interest (almost any public interest it seems) and a loose fit between the law and that interest. In effect, now a state can regulate minimum wage or hours nearly at will, whereas before, it was almost impossible. Is this a correct understanding?
ANSWER: Essentially, yes. I think there are a few more subtleties to Lochner that we did not really discuss. For instance, government could regulate the maximum hours of miners, for instance, because the Court saw that as raising "real" public safety concerns (as opposed to the "pretextual" ones asserted by New York in Lochner itself). But yes, your summary is basically correct.
QUESTION: The next question is when we should be considering historical recognition of a right and importance of that right. We first talked about that in the incorporation context, but it was also mentioned tonight. Should those considerations be taken into account /applied in any instance involving individual rights (economic or not)?
ANSWER: The question whether a right is "fundamental" as a matter of due process, such that the government's infringement on that right is subject to strict scrutiny, is precisely the same question we ask with respect to incorporation (i.e., whether one of the rights protected by the Bill of Rights applies to the states). Indeed, it is precisely the same issue, the only possible difference being that in the incorporation context, the right happens to be textually spelled out in one of the first eight amendments to the Constitution. But the "implicit in a scheme of ordered liberty"/"deeply rooted in the our nation's history and traditions" question is the same inquiry whenever we are asking whether a right is "fundamental" as a matter of due process. This is the incorporation question, precisely because the Court has held that the rights that are incorporated are those that are "fundamental." But, of course, it has not stopped with those textually spelled out in the Bill of Rights. Thus, it is also the question we ask in Griswold, in Roe, in Casey, and perhaps in Lawrence v. Texas and Perry v. Schwarzenneger.