More “Life Imitates ‘Rehabilitating Lochner'”

In a previous post, I noted that in my forthcoming book, I point out that academics invented the notion of a “Lochner era” in which the U.S. Supreme Court was single-mindedly determined to invalidate all manner of economic regulation. In doing so, they conflated a host of different constitutional provisions–due process, commerce clause, nondelegation doctrine, general welfare clause, and so on. They also distorted the Court’s actual record, on the one hand portraying a much more “activist” Court than the actual historical records supports, and on the other counter-factually separating the Court’s “good” due process decision, such as Pierce v. Society of Sisters, from it’s “bad” due process decisions like Lochner, even though Pierce relied on the same reasoning as Lochner, and ultimately on Lochner itself.

As I note in the book, the reason for this distortion of the historical record was to shore up the post-New Deal liberal consensus–pro-New Deal, pro-economic regulation, pro-non-economic individual rights. Conflation and distortion allowed elite lawyers to “elide debate over the meaning of the relevant constitutional provisions, and to reject out of hand the notion that the Old Court may have interpreted some of them correctly as a matter of text and history.”

I provided some examples of how this dynamic is playing out in the debate over the constitutionality of health care reform. Here’s an even better example, the final sentence of an op-ed by one Simon Lazarus, which summarizes the theme of the entire piece: “If conservative jurists invalidate this linchpin of the most important domestic legislation in perhaps half a century, they will restore Lochner — letter, spirit, the whole nine yards.”

I’m not sure what the “spirit” of Lochner is, but the letter of Lochner is that certain maximum hours laws (the Court upheld all other maximum hours laws that came before it, beyond the bakers’ law invalidated in Lochner) violate the right to liberty of contract protected by the Due Process clauses of the constitution.

Given that even Lazarus himself seems to acknowledge that there is basically zero chance that the Court is going to revive the liberty of contract doctrine in general, or the limited prohibition on maximum hours laws in particular, clearly the “letter” of Lochner is and will remain as dead for the foreseeable future as it has been for the last seven decades. [Indeed, there is virtually no chance that what has come to be known as “substantive due process” will play any significant role in the litigation over Obamacare.]

As Rehabilitating Lochner concludes:

Lochner serves as a uniquely important negative exemplar of constitutional error in constitutional law scholarship, op-ed columns and blog posts, and even in Supreme Court decisions. When [participants in constitutional debates] use Lochner this way, as shorthand for what they consider the “activist” sins of their opponents, they are substituting empty rhetoric for meaningful constitutional argument.

Replacing the mythical, evil Lochner with something closer to the real historical Lochner line of liberty of contract cases would deprive participants in debate over American constitutional law of this easy, but ultimately vacuous, rhetorical shortcut. A more accurate view of constitutional history would therefore lead to a more nuanced, civil, and constructive, debate about modern constitutional law. And that’s reason enough to rehabilitate Lochner.