Some Controversies Addressed by Rehabilitating Lochner

When authors blog about their academic books, they often give what amounts to a very long synopsis, or even a chapter-by-chapter rundown, of the book over many posts. Instead of doing that here, I thought I’d give some “teasers” about my Rehabilitating Lochner book by noting one historical controversy addressed in each chapter.

Chapter 1: Howard Gillman’s The Constitution Besieged argues that the pre-New Deal Supreme Court’s liberty of contract jurisprudence was primarily a reflection of hostility to so-called “class legislation.” I conclude that this jurisprudence was primarily a reflection of a natural rights tradition that suggested that the states’ police power had inherent limits.

Chapter 2: Paul Kens’s book on Lochner v. New York: Economic Regulation on Trial attributes the origin of the ten-hours law at issue in Lochner to legitimate health concerns by bakers. I focus on intergroup rivalry between the unionized, mainly German, bakers, and more recent Jewish, Italian, and French immigrants, who worked longer hours than the Germans.

Chapter 3: Historians and others have argued for decades that the Supreme Court’s liberty of contract jurisprudence reflected an unwillingness by the Justices to consider the inequalities of bargaining power between large corporations and individual workers. I contend that the Supreme Court routinely acknowledged that legislation meant to redress bargaining power disparities between employers and employees was a constitutionally legitimate police power function. However, a majority of the Justices were not persuaded that the Progressives’ proposed cure for inequalities in bargaining power-government nurturing of labor unions-was either beneficial to workers or constitutional.

Chapter 4: Florence Kelley, perhaps the Progressive Era’s leading advocate of “protective” labor legislation for women, has been described by some historians as a “social justice feminist,” which implies that she saw her activist mission in significant part as challenging gender-based hierarchies. I conclude that Kelley saw women’s labor issues primarily as a means of promoting socialist goals, without much concern for whether these goals had an immediate positive or negative effect on women’s rights.

Chapter 5: Legal scholars frequently claim that Lochner and the notorious 1896 case of Plessy v. Ferguson, which upheld a law requiring railroad segregation, were based on similar ideological premises. In my view, while these scholars neatly tie together modern liberals’ hostility to both Plessy and Lochner, they ignore or understate some very important differences-indeed, some significant conflicts-between the two cases.

Chapter 6: One historian, reflecting longstanding conventional wisdom, writes that “in all the really crucial civil liberties cases, Justices Holmes and Brandeis stood together on the side of the claimed right.” I suggest that outside the context of freedom of speech, these Justices’ civil liberties’ records–especially Holmes’s-was actually worse than those of their “conservative” colleagues.

Chapter 7: Strong hostility to Lochner and its progeny (such as Meyer v. Nebraska, or Griswold v. Connecticut) on originalist grounds is bedrock conservative constitutional ideology. I find this critique ironic, because the proponents of liberty of contract were themselves originalists, trying to adhere to what they saw as the constitutional understandings of the Fourteenth Amendment’s Framers regarding individual liberty and the scope of the police power. The originalism of a century ago was generally neither well-theorized nor well-explained by its judicial adherents, was far more intuitive and less grounded in historical research than modern originalism, and was much more likely to incorporate the natural rights tradition, but it was originalism nevertheless.