I recently sent the final version of my “Rehabilitating Lochner” manuscript to University of Chicago Press for proofreading, typesetting and so forth. Yay! The book should be out in Spring 2011.
At some point, my editor asked me for my conception of the cover. I chose something unrealistic, but that I really liked. And I hired an artist to do a mock up based on my idea, to use for my own p.r. for the book, if not the cover.
Historical notes: Peckham wrote the majority opinion in Lochner, Holmes wrote a famous dissent. The guy on the right in the Lochner bakery apron is Joseph Lochner, based on photos of him. The audience members are dressed in “authentic” bakers’ outfits of the day, based on a photo of Lochner’s employees.
Pierre Corneille says:
I look forward to reading it, although I’ll probably do so with a critical eye, and will probably not agree with everything you write. Congratulations on being almost done!
June 14, 2010, 8:23 amTamerlane says:
Great cover. Don’t give up hope on getting it accepted. It reminds me of Michael Spivak’s covers on his differential geometry series.
June 14, 2010, 8:53 amPatty Shundynide says:
What’s with the cartoon trend for book covers. See Skating on Stilts.
June 14, 2010, 9:22 amSC says:
The arguments are cartoonish?
June 14, 2010, 9:27 amanon says:
A better visual analogy would be a wrestling tag-team match with Peckham and an anthropomorphized Constitution on one side, and Holmes and Roscoe Pound on the other. Peckham pins Holmes, but before he can be counted out, Holmes–ever the heel–sneaks a syringe of some slow-acting poison out of his sequined Speedo shorts (which read “The Magnificent Yankee” across the back, natch) and stabs the Constitution in the leg. Then Pound hits Peckham in the face with a folding chair and finishes him off with his patented Ground Pound-er Suplex.
But this boxing cover is pretty good, too.
June 14, 2010, 9:28 amDJR says:
I’m not sure I understand the concept. Peckham beating Holmes could be a fanciful illustration of the Lochner decision, but I take it the point of the book is not Lochner itself, but subsequent events and your attempt to “rehabilitate” it. If Lochner was a boxing match that Peckham won, then the later criticism was a bus that flattened Peckham as he unsuspectingly crossed the street, leaving him bedridden and broken for many many years. An apt illustration of “Rehabilitating Lochner” would be a scarred and scrawny Peckham in a hospital gown, shakily taking his feet again for the first time. Nothing about this cover illustrates the concept of “rehabilitating.” In fact, if this picture were the final word, it’s hard to see why Lochner should need rehabilitating.
Picture Phelps winning his 8th gold medal, title: “Rehabilitating Mark.” Just doesn’t fit.
June 14, 2010, 9:30 amDavid Bernstein says:
LOL
June 14, 2010, 9:42 amStephen Lathrop says:
Good job. Who was the artist?
June 14, 2010, 9:53 amWalter S. says:
Add my vote in favor of the cover.
June 14, 2010, 9:56 amDavid Sucher says:
Why does it take a year to publish a book?
Are they cutting the pulp trees to make paper?
The ebook revolution has created great fears among publishers and for very good reasons and among them it’s preposterous that it takes a year to go from finished manuscript to book on market.
June 14, 2010, 10:01 amSteve says:
Ah, but should a baker be allowed to refuse service to a black customer?
June 14, 2010, 10:02 amuh_clem says:
Spivak’s covers were great (the books too, although I barely made it through the second one before giving up on the series).
I don’t share the same enthusiasm for Bernstein…
June 14, 2010, 10:12 amBama 1L says:
I’ve always thought Holmes, a war hero and overall badass, would have been one of the better boxers on the court.
We need some sort of SCOTUS fantasy boxing.
June 14, 2010, 10:23 amUrso says:
Shouldn’t Peckham be punching one of the bakers?
June 14, 2010, 10:24 amEstalaw says:
I love the artwork, and I’m looking forward to reading the book. My one recommendation would be: needs more robots.
June 14, 2010, 10:27 amA.W. says:
spiffy cover and congrats on the publication. It would be interesting to see what any marketing info says on that.
that being said, lochner was wrongly decided. it was conservative activism. of course to libertarians lochner had alot going for it, and i tend to like those same things. But…
the libertarian principle is simply not part of our constitution.
Which is not to say the new deal was right, etc. Just libertarianism was not part of the constitution. and neither was a hallucinated right to contract, although it would make alot more sense than a right to privacy including abortion.
June 14, 2010, 10:38 amBZ says:
DJR and I had the same first thoughts. Since, in real life, Holmes’ dissent came off the mat to score an ultimate victory, the cartoon may be more confusing than illuminating. You rehabilitate the loser, not the winner, in a match.
Or, to put it another way, if the picture were of Holmes dancing around the ring, hands held high in triumph, with Peckham gradually picking himself off the mat, a la Rocky XXXVI, then it would be more appropriate to rehabilitation.
It’s a great cartoon, out of context, anyway, and shows an interesting imagination.
June 14, 2010, 10:39 amDavid M. Nieporent says:
Why? Peckham wasn’t the one trying to deny them their rights; Holmes was.
June 14, 2010, 10:46 amAnon21 says:
No, Peckham most certainly was trying to deny bakers their right to reorganize labor-management relations through political activism in a democratic society.
June 14, 2010, 10:51 amMartinned says:
They both are, but you simply can’t treat them like the enumerated rights. They’re common law rights, which means that inevitably they’re going to be more blurry around the edges than something written black on white in the Bill of Rights.
June 14, 2010, 10:52 amDavid Bernstein says:
Richard Weinstein. Got his name from a reader.
June 14, 2010, 11:05 amDjDiverDan says:
I might buy the book just for the cover – but only because Rufus Peckhan was apparently close to a dead-ringer for Mark Twain. I’m a big fan of all Mark Twain’s work, from Huckleberry Finn and Tom Sawyer to Letters from the Earth, and the thought of him giving a whipping to O.W. Holmes is priceless.
June 14, 2010, 11:15 amanon says:
This is a pretty remarkable way of thinking: Influential interests groups have the “right” to use the legislative process to force other people to live their lives in the manner that maximizes profit for the interest group. So unionized bakers have a right to cut the legs out from under their mostly immigrant competitors. And, of course, this “right” to force other people to do your bidding is surely more important than an immigrant’s right to work in the job of their choosing under conditions they consent to.
In fact, since this principle would impose essentially no limits on government power, let’s just cut out the charade of allowing disfavored interest groups to fail in a rigged market and simply require people to buy products from favored interest groups. Then we can all enjoy the refreshing taste of Coke Mandatory while we peruse the details of a whole new array of universal mandates.
June 14, 2010, 11:19 ambyomtov says:
In line with DJR, the cover is cute but doesn’t relate to the idea of rehabilitation. And, given the title, shouldn’t the main character on the cover be Lochner himself, perhaps doing physical therapy exercises, or attending an AA meeting?
June 14, 2010, 11:22 amSuperSkeptic says:
New cover suggestion: Anon v. Anon21, in the ring, with Bernstein on the outside of the ropes in a don king fro. Hot Budweiser chicks everywhere, holding up round signs.
June 14, 2010, 11:36 amMC says:
I’m sure that of all the people commenting thus far, you’re the person who would get the most out of reading Professor Bernstein’s book.
Anyone can say “the libertarian principle isn’t in the Constitution.” And then someone who disagrees with you can say “Yes it is.”
But the Professor has actually written an entire book on it, which includes more than a bare assertion that this “isn’t” what the constitution says.
Up until recently I was positive that Holmes was right. Then I actually started reading Thayer and Holmes’s letters with all of his weird nietzchean philosophy, and realized, “Hey . . . maybe Peckham had a point.”
And I’m sure Professor Bernstein’s book will add a lot of useful information to this debate.
I would be most curious to know what, if any, are Professor Bernstein’s and Professor Barnett’s differences in their views of the Constitution and constitution adjudication, seeing as how their theories seem so similar on the surface.
June 14, 2010, 11:44 amDavid Bernstein says:
The concept is that if Lochner were rehabilitated, Peckham would be scoring a posthumous victory over Holmes. It especially fits with the book, I think, because I’m not so much trying rehabilitate Lochner the decision, as to rehabilitate the jurisprudential traditional represented by Peckham against Progressive rights-skepticism, represented by the Progressives’ champion, Holmes. (And rehabilitate in the sense of “to reestablish the good reputation of”, not to argue that Lochner was necessarily correctly decided, a point on which I have my doubts–but I much prefer Harlan’s dissent to Holmes’s).
June 14, 2010, 11:54 amBama 1L says:
Oh, if that’s what you’re going for, you need to have Peckham as a reanimated corpse. Then it would be clear.
June 14, 2010, 12:25 pmBama 1L says:
The unattractive thing about Holmes is the substance of his beliefs. The attractive thing about Holmes is that he articulated why someone in his position should not simply enact the substance of his beliefs as law.
June 14, 2010, 12:27 pmSnaphappy says:
I’m not sure what part of the illustration evokes the abstract concepts of “if Lochner were rehabilitated” and “posthumous.” The most immediate interpretation is that this is an illustration of what happened in the Lochner decision. Nothing gives a clue that this is some sort of rematch following (1) Peckham’s initial victory; and (2) Lochner’s fall into disrepute.
If you wanted to do that, at least change the illustration to make Holmes into Clubber Lang (maybe with some gold chains around his neck and a Mr. T-style mohawk?) and put Peckham in Apollo’s stars and stripes boxing shorts that Rocky wore in that fight. THAT image would evoke “Rehabilitating Lochner.”
June 14, 2010, 12:57 pmUrso says:
Contrarily, I’ve read the constitution, which is generally regarded as fairly good authority on what the constitution says — a better authority, it is rumored in some circles, than even Prof. Bernstein.
June 14, 2010, 1:04 pmDilan Esper says:
I’d prefer a cartoon showing peckham looking at a copy of the constitution and a copy of mr. Herbert spencer’s social statics, and being unable to tell which is which.
June 14, 2010, 1:57 pmgandi says:
“Rehabilitating Lochner” by David Bernstein — I am guessing about 250 pages telling us why its better for everyone if people can work 100 hours a week for sub-minimum wages?
Am I right?
June 14, 2010, 2:01 pmDavid Bernstein says:
You’re not even remotely close.
June 14, 2010, 2:28 pmMC says:
I don’t know about you, but I’ve spent a significant amount of time staring at the words of the Constitution, but no no matter how hard I stare, the darn thing just won’t interpret itself for me.
So I rather appreciate reading commentary on the Constitution, if only because glaring at the words “privileges and immunities” and “due process of law” all day long–hoping against hope that what they “really say” will pop out at me–seems counterproductive after a while.
June 14, 2010, 2:40 pmA.W. says:
Martinned
> They’re common law rights, which means that inevitably they’re going to be more blurry around the edges than something written black on white in the Bill of Rights.
Um, no. a common law rule can be overwhelmed by any statute. Not so with the constitution itself.
MC
> Up until recently I was positive that Holmes was right. Then I actually started reading Thayer and Holmes’s letters with all of his weird nietzchean philosophy, and realized, “Hey . . . maybe Peckham had a point.”
Last time I checked, neither one of them were the founders. The fact was the founders violated the libertarian principle on a regular basis. Indeed, so called libertarian decisions make hash out of the principle. I discuss it in a lot more detail at my own site: http://allergic2bull.blogspot.com/2010/06/has-health-care-reform-overturned.html
Warning, my language on that site is coarse.
Now I suppose you could say that the original constitution did contain the libertarian principle and then advocate that we apply it in a consistent way. But right now if you harm a dog its animal cruelty, but if you kill a fetus it’s a constitutional right, and there is no explaining that contradiction in keeping with the libertarian principle.
But hey, as my post suggests, maybe if we are really, really lucky, Justice Kennedy will be libertarian enough to destroy Obamacare.
But really I have been many rounds with people over this, and it comes down to this. Most libertarians can reduce their philosophy to this: “I have the right to do anything that I want, so long as it doesn’t harm others (who are not consenting adults).” Which begs the question. If its so easy to sum up the philosophy, why didn’t the founders write it down. Indeed, I continually throw down this challenge to those who assert the libertarian principle is in the constitution: find me one framer who said anything even like that quote.
I mean you can do it with other ideas. Martin Luther King said he dreamed that we would be judged not by the color of our skin but the content of our character. And Thaddeus Stevens, a framer of the 14th A, said, that it was his dream “that no distinction would be tolerated in this purified republic, but what arose from merit and conduct.” Its not identical, but you can definitely imagine Stevens nodding in agreement to Dr. King, and at most scolding him for limiting the discussion to race.
Can libertarians do even that? Forget finding the language in the constitution, just find it in the words of one of the founders. Because so far, I haven’t found it, and neither have the libertarians I have debated this with.
And I say this being fairly libertarian myself, politically. But there is a world of difference between my political preferences and my reading of the constitution. The framers were great but they didn’t agree with me on everything. And didn’t agree with most of you on everything, either. I have long said that if you can’t think of a portion of the constitution, as currently enacted, that you disagree with, you’re not reading it right.
June 14, 2010, 2:47 pmmischief says:
First the editor has to go over it. Then the copy editor has to go over it. Then the writer has to correct the proofs.
And you have to schedule it, and sell it to the stores, and have it printed and shipped — as well as all the other books that you are having printed and shipped.
Plus you want time to send out advance copies.
June 14, 2010, 2:50 pmMartinned says:
You’re right. I should have stuck to calling them “unenumerated rights”. Still, the common law method applies to them more than to the enumerated rights, which is why my conclusion follows.
June 14, 2010, 2:59 pmA.W. says:
martinned
If its a right protected by the constitution, then the courts have no business watering them down or beefing them up by interpretation. mind you, that actually happens in our system, but it isn’t right.
June 14, 2010, 3:33 pmMartinned says:
My point wasn’t about watering anything down or beefing anything up. It was about knowing what exactly the nature of the right is if it isn’t written down anywhere in so many words. That is different from the problem with, say, the first amendment, which was written down in such absolute terms as the founding fathers never literally intended, and certainly not if applied to the states. So with the 1A, we inevitably arrive at the conclusion that the amendment means something different from what it says, meaning that the courts have to “water it down” and “beef it up” based on their best judgement. A right that wasn’t written down to begin with is a different story. There, there is no seeming conflict between the literal words of the constitution and the actual jurisprudence. Instead, you see (or should see) a series of rulings, based on stare decisis, carefully delineating the right. How does the freedom to contract connect to the doctrine of ex turpi causa non oritur actio? And what about the commerce clause, which quite clearly gives Congress the power to regulate contracts to some extent. The manner in which such things are sorted out is always going to be qualitatively different from the way the jurisprudence develops regarding the enumerated rights.
June 14, 2010, 3:49 pmBama 1L says:
I hope you have heard there is an idea that the Constitution protects some rights even thought it doesn’t list them by name or explain what they are with any specificity beyond saying that you are entitled to “due process of law” and some set of “privileges and immunities.” So you have to interpret to reach them. This is the kind of right that was at issue in Lochner.
June 14, 2010, 3:49 pmPeter says:
Hours legislation
Reconstruction and the desire to protect blacks against abuses at the hands of state law enforcement officials
These are two parallel lines that do not cross
except in the funhouse that is the legal profession
June 14, 2010, 5:44 pmFedya says:
Does the Eighth Amendment require that punishments be both cruel and unusual before the punishment is unconstitutional, or does the Eighth Amendment ban both cruel punishments and unusual punishments?
And what is “excessive” bail?
June 14, 2010, 6:14 pmColoComment says:
Mr. Bernstein, re: book publishing, you might enjoy this book excerpt that I discovered many years ago:
The Perfect Book
By William Keddie
The Foulis’s editions of classical works were much praised by scholars and collectors in the nineteenth century. The celebrated Glasgow publishers once attempted to issue a book which should be a perfect specimen of typographical accuracy. Every precaution was taken to secure the desired result. Six experienced proof-readers were employed, who devoted hours to the reading of each page; and after it was thought to be perfect, it was posted up in the hall of the university, with a notification that a reward of fifty pounds would be paid to any person who could discover an error. Each page was suffered to remain two weeks in the place where it had been posted, before the work was printed, and the printers thought that they had attained the object for which they had been striving. When the work was issued, it was discovered that several errors had been committed, one of which was in the first line of the first page. (Excerpted from A Passion for Books, by Harold Rabinowitz and Rob Kaplan.)
June 14, 2010, 6:24 pmShelby says:
Contrarily, I’ve read the constitution, which is generally regarded as fairly good authority on what the constitution says — a better authority, it is rumored in some circles, than even Prof. Bernstein.
I do not think that Constitution means what you think it means.
June 15, 2010, 1:24 amShelby says:
Personally, I just expected Holmes (and to an extent Peckham) to look more beat-up. But hey, nifty idea, and well executed.
June 15, 2010, 1:25 amShelbyC says:
Well, maybe some day you can write a book and hire an artist… :-)
June 15, 2010, 1:26 amAndrew says:
I endorse everything A.W. said. People who interpret the Due Process Clause or the Ninth Amendment or the Privileges or Immunities Clause as restraining states from doing whatever Justice Bernstein doesn’t want them to do are much mistaken, despite groovy book covers.
June 15, 2010, 1:56 amThales says:
I look forward to reading your book, with which I will probably disagree in some respects. You Can’t Say That has been on my to-read list for some time–if you had to choose between them, which was your favorite to write?
June 15, 2010, 10:56 amA.W. says:
Martinnned
Well, maybe we are confused between what ought to happen and what actually does happen. Certainly if there is no constitutional text to embarrass the courts with, its easier to get away with BS interpretations.
But if an unwritten right was proven to exist, it cannot be suddenly interpreted out of existence, or narrowed to irrelevance, in a principled fashion.
I am not 100% closed off to the idea of unwritten rights. But I believe that each time the courts discover an unwritten right, they encroach on democracy. As such they need an exceedingly powerful justification for doing so.
The concern that they might limit the hours that bakers work doesn’t count. Neither does the fear that women won’t be able to get abortions when you think they ought to. I find it continually bizarre year after year when the polls show that something like 70% of the people believe that there should be a right to abortion, but the pro-abortion side insists that it should not be left up to the people. what exactly are they afraid of?
Bama
> So you have to interpret to reach them. This is the kind of right that was at issue in Lochner.
Not exactly. Due process and freedom of speech were concepts that were defined and understood at the time. for instance, in the colonies it was said that laws forbidden slander were not restrictions on freedom of speech, so long as truth was allowed as a defense. That was their understanding at the time, and thus you can impute that exception into the first amendment.
Lochner was just making stuff up, by comparison. And while I agree with much of the policy behind lochner, just as I agree with much of the policy behind Lawrence, I can’t in any seriousness pretend that either decision is commanded by the constitution.
June 15, 2010, 2:43 pmDilan Esper says:
Well, maybe some day you can write a book and hire an artist
I don’t need to. Justice Holmes said all that needed to be said.
Seriously, I realize similar critiques can be made about liberal decisions such as Roe and Griswold, but how, exactly, are you supposed to get from a constitutional provision that says that your property cannot be deprived without legal process to the conclusion that state economic regulations that offend libertarians’ notions of unfettered freedom of contract are unconstitutional? There’s simply no way that the Due Process Clause requires a libertarian laissez-faire approach to economic regulation. Holmes may have been wrong about some other things, but he was clearly right about this.
The fact that you get a book-length attempt to refute a pretty obvious point, simply and elegantly made in a few pages of text, is a pretty good testament to the power of what Holmes wrote.
June 15, 2010, 2:57 pmDavidBernstein says:
YCST was more fun, and easier, to write, because it was more of a polemic and less scholarly. But I don’t have much doubt that R.L. is my best book, and the one that gives me the most satisfaction to have written.
June 15, 2010, 4:14 pmgullyborg says:
I object to the abbreviation “KOs.”
The abbreviation, as used in the context of the title, stands for “knocks out.” It does not stand for “knock outs.”
The proper abbreviation should be “KsO.”
June 15, 2010, 4:28 pmShelbyC says:
Dunno, how is protection for non-economic SDP any different? Holmes remark about social statistics isn’t that different from Scalia’s dissent in Lawerence, is it?
June 15, 2010, 7:43 pmGuy says:
Yes and no, the problem in Lawrence was the absence of a rational basis (“we think it’s immoral” simply begs the question). Regardless, I think Carolene Products fn. 4 does a good job of laying the ground rules for when expansive SDP is a good idea and when it isn’t. It’s hard to argue that the sodomy statute was intended to actually achieve a legitimate policy result (since it was virtually never enforced) rather than merely to create a symbolic badge of disfavored status.
June 15, 2010, 10:50 pmDilan Esper says:
Dunno, how is protection for non-economic SDP any different? Holmes remark about social statistics isn’t that different from Scalia’s dissent in Lawerence, is it?
It’s different. First, as Guy said, the conclusion that there is no rational basis for the law is very supportable in Lawrence (and indeed, Scalia’s claim that there are all sorts of legitimate interests for imprisoning gays and lesbians is quite unconvincing) and this distinguishes the case. Second, Scalia’s dissent didn’t just say “the Constitution didn’t enact the position of gay rights advocates”. It went much further than that and bleated on about the “homosexual agenda” and how dangerous it was to society.
Having said all that, I think I conceded, and I do concede, that Griswold, Roe, and Lawrence’s due process rationales are subject to criticism. They are. But saying “well, the Court stretched the due process clause in other cases later on” isn’t much of a justification for the position that state economic regulations violated a clause that simply required adequate legal process in connection with any deprivation of property.
June 16, 2010, 2:14 pmDavid M. Nieporent says:
Actually, it mentioned it once (twice if you don’t require the exact phrase), and never claimed it was “dangerous” to anybody, “society” or otherwise. And that was exactly the point that the reference made, albeit in what many would consider a gratuitous way: that the Constitution didn’t enact the position of gay rights advocates.
June 17, 2010, 7:35 amDilan Esper says:
David:
There’s a way to make the point that the Constitution doesn’t enact the position of gay rights advocates without being homophobic and bigoted. (Indeed, Thomas’ separate dissent basically shows you how to do it– quote the dissent in Griswold about how this is a silly law but that doesn’t make it unconstitutional.)
There’s also a way to make that point while also being gratuitously homophobic and bigoted.
Scalia chose the latter option, and I don’t think there’s really any doubt that he did it because he thinks that there’s nothing wrong with the government making the lives of gay people more difficult.
June 17, 2010, 2:46 pmDavid M. Nieporent says:
Be that as it may, it doesn’t change the fact that he said what you said he didn’t say, and vice versa.
June 17, 2010, 9:36 pmDilan Esper says:
David:
It isn’t that he didn’t say the Constitution doesn’t speak to this, but that he didn’t ONLY say that. Indeed, he can’t resist insulting gays and lesbians; he did it in Romer too, calling it a kulturkampf! There aren’t many other jurists who would imply that Hitler was right, even about gays!
June 18, 2010, 3:06 amjpsartrean says:
>>But saying “well, the Court stretched the due process clause in other cases later on” isn’t much of a justification for the position that state economic regulations violated a clause that simply required adequate legal process in connection with any deprivation of property.<<
But mustn't (or, at the very least, shouldn't) "adequate legal process" include judicial review? Furthermore, if the people are SO against the decisions/temperament of the Court, they can amend the Constitution and/or add (or threaten to add) more justices.
I certainly tend to agree with critiques/criticisms contrasting Lochner with Griswold. Perhaps Justice Goldberg's concurrence in Griswold – and reliance on the 9th Amendment – has more footing in the Lochner rationale than has been appreciated.
Regardless – and at bottom – one would be hard pressed to square the rationale of Holmes's dissent in Lochner, with Douglas's majority rationale in Griswold imho…
July 28, 2010, 2:18 am