Unfair to Justice Breyer?

A prominent constitutional law professor recently suggested to me that I was grossly unfair to Justice Breyer in the following paragraph at the end of Chapter 7 of Rehabilitating Lochner:

Nevertheless, and despite the flood of serious revisionist scholarship, Lochner is still primarily used as a symbol of one’s jurisprudential opponents’ perceived faults. Justice Antonin Scalia, dissenting in Lawrence v. Texas, argued that the Fourteenth Amendment no more protects the right to engage in homosexual sodomy than it protects the right to work “more than 60 hours per week in a bakery.” In United States v. United Foods, Justice Stephen Breyer, dissenting, criticized the majority for finding that the First Amendment imposes limits on government-coerced commercial speech. Breyer, citing Lochner, wrote: “I do not believe the First Amendment seeks to limit the Government’s economic regulatory choices in this way—any more than does the Due Process Clause.” This sort of simplistic discourse about Lochner impoverishes our understanding of the Fourteenth Amendment and the influence of the liberty of contract cases on it, and brings no honor to the jurists who engage in it.

The professor in question suggested that Breyer, rather than being simplistic, was in fact making the subtle and sophisticated point that the underlying problem with the commercial speech doctrine as applied in United Foods, like the underlying problem in Lochner, was the application of a constitutional provision to ordinary economic regulation with little support in history or text. The professor (who was not Jack Balkin) noted that Jack Balkin and others have in fact made this point in very erudite law review articles.

My response was that while in theory Breyer could have been making a sophisticated jurisprudential point, there is no indication from his actual dissent that he was doing so, as opposed to simply using Lochner offhandedly “as a symbol of one’s jurisprudential opponents’ perceived faults.” After all, the entirety of what Breyer had to say about Lochner is as follows:

At a minimum, the holding here, when contrasted with that in Wileman, creates an incentive to increase the Government’s involvement in any information-based regulatory program, thereby unnecessarily increasing the degree of that program’s restrictiveness. I do not believe the First Amendment seeks to limit the Government’s economic regulatory choices in this way–any more than does the Due Process Clause. Cf. Lochner v. New York, 198 U.S. 45 (1905).

Nevertheless, the professor in question–who has no particular ties to Justice Breyer, near as I can tell–was quite adamant that I had wronged Breyer, and should at least edit the offending paragraph in subsequent printings of my book.

So, while I still don’t see it, maybe as the author I have blinders on. So, dear readers, was I unfair to Justice Breyer? (Note that to vote accurately, you must click the circle ABOVE your choice).

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