The Southern and Western Prehistory of “Liberty of Contract”: Revisiting the Path to Lochner in Light of the New History of American Capitalism

Abstract

This article examines the local legal histories of two “liberty of contract” constitutional disputes prior to Lochner in the South and West: Allgeyer v. Louisiana (1897) and Holden v. Hardy (1898). Drawing inspiration from the new history of American capitalism literature that has recently rethought the genesis of the modern American economy through a Southern and Western lens, this article argues that we have yet to fully grasp the relationship between uneven state development politics and economic rights jurisprudence under American constitutional law. In so doing, I build a new narrative that takes into account development politics, Louisiana lawyers with roots in the Confederacy, and Western Populist constitution-makers to rethink the origins and development of a doctrine that arguably continues to shape the modern world.