The Supreme Court's decision in Lochner v. New York (1905), invalidating an act limiting working hours for bakers as a violation of contractual freedom, has come to symbolize an era in constitutional law. The period covers the years from the end of the Gilded Age through the Progressive Era. Its chief characteristic, according to its critics, is the judiciary's hostility to progressive labor legislation. Statutes intended to protect vulnerable classes from the ravages of industrialization were routinely defeated in the courts. Progressives pioneered an interpretation in which Lochner became a leading “anticanonical” case, wrongly deploying the doctrine of substantive due process to shield inherited distributions of wealth and power. The time is long past when scholars characterized the era as a product of judges' reactionary commitments to laissez-faire or, worse, to Social Darwinism, following Justice Holmes's quip, dissenting in Lochner, that “the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.” Contemporary scholars have reconstructed the period's jurisprudence, finding in it a principled commitment to a conception of justice grounded in the Founding. The most widely accepted explanation, developed by Gillman's influential study, is that substantive due process embodied a principle of neutrality requiring courts to distinguish the authentic public aims of legislation from illegitimate attempts to advantage some classes at others' expense. An alternative explanation is that judges, drawing on the theory of natural rights, developed the doctrine of substantive due process to limit government's discretion to encumber prepolitical rights to private property and liberty of contract.

Following the 1906 midterm elections, Indiana Senator Albert Beveridge was excited to return to Washington to introduce a bill that would prohibit child labor in the nation's factories, mines, and mills. He hoped the bill would curtail the unpopular practice and help rebrand his Republican Party as the nation's progressive party. The Party's old guard, however, proved uncooperative. Recognizing the unpopularity of child labor, they fought the bill on constitutional grounds and challenged Beveridge with a parade of horribles. If Congress could constitutionally regulate child labor, they asked, could it not also regulate the hours or wages of adults? Could it not prevent a man from joining a labor union? Or require it? One would have expected Beveridge—who opposed such regulations—to blunt that criticism with some legal distinction. Instead, he embraced it. Would Beveridge go so far as to claim that Congress could prohibit the interstate shipment of cotton picked by children, asked one Senator. “Yes,” Beveridge retorted, “or [by] a redheaded girl.”

“Crime is a great leveller,” stated Western Australia's The Inquirer in October 1853. “Policy requires that we should convince the native population that in our Courts of Justice they really are what we profess and tell them they are—the equals of the white man, whatever they may be elsewhere.” The Inquirer was responding to a case that had just come before Perth's Quarter Sessions, in which John Jones was tried for the murder of Neader in the colony's southwest. Jones was found guilty of manslaughter and sentenced to transportation for life. Given that Australia's colonies were notable for their failure to bring settlers to trial for violence against Aboriginal people, it is significant that The Inquirer's editor did not regard Jones' conviction and sentence as a sign that the Courts of Justice were working as they professed to do. The charge was one of wilful murder, and the evidence indicated that “if ever a foul and deliberate murder was committed, it was on the occasion which led to this trial.” The verdict that Jones was guilty only of manslaughter, he continued, was indicative of the jury's disregard of the law's impartiality when a white man was on trial for the murder of an Aboriginal man. If the law was to make a distinction between white and black, “let it be declared: but to say there is none, and to act as if there were, is a mockery.”

Statelessness continues to trouble today's international legal and political spheres. Despite the International Convention Relating to the Status of Stateless Persons, the stateless remain an unwelcome presence and awkward anomaly within an international human rights regime still fundamentally dominated by the nation state structure. In 1945, Marc Vishniak wrote that the stateless were “… restricted in their rights more than any other people and constitute the weakest chain in the link of human rights.” Hannah Arendt, who was herself a Jewish refugee from Germany, placed the enigma of the stateless in an even more central philosophical position. Whereas Visniak emphasized the problematic and marginalized legal status of the stateless within the dominant international paradigm, Arendt proposed a re-imagining of the international legal order, a vision that would prioritize a solution to the situation of the stateless, especially stateless Jews, by “somehow or other restoring to them the inalienable rights of man.” For Arendt, Jewish former citizens of Germany, stripped of their nationality by the Nazi regime, occupied a newly paradoxical situation as empowered and voluntary Heimatlos, precisely because they now rejected the standard legal normativity of the state/citizen template. Arendt found historical support for her argument about statelessness as both abnormal within dominant international legal thinking, and at the same time strangely empowering, with regard to the situation of the mainly Jewish refugees displaced during World War I. They had fallen outside the protections offered by new succession countries at the end of that conflict, very often by their own decision to refuse incorporation as citizens of the emergent nation states. These Jewish apatrides discovered “privileges and juridical advantages in statelessness.” For Arendt, Jewish former citizens of Germany at the end of World War II further embodied a move toward conceptualizing a new international paradigm wherein rights could be sought beyond the traditional bounds of a state-based legal order, precisely because those bounds had been irrevocably shattered by the state itself.

On Good Friday of 1973, members of San Francisco's homosexual community staged a public demonstration amidst the skyscrapers in the business district. Shen Hayes, described as a “frail nineteen-year-old,” claimed to embody the suffering of the city's gay population. Hayes dragged a telephone pole “cross” on his back while throngs of protesters cheered and chanted. The local minister leading the action likened gays’ lack of rights to murder, and the caption accompanying Hayes’ photo in the newspaper claimed that he and other gay Californians had been “crucified.” Despite, despite the protest's religious intensity, its objective was secular. Activists had convened to oppose discrimination against those workers whom Pacific Telephone & Telegraph (PT&T) had labeled “manifest homosexuals”: employees and job applicants who either claimed or seemed to be gay.