Life Imitates Rehabilitating Lochner, Again


Modern conservative constitutionalists, meanwhile, though dissenters in some ways from the orthodox interpretation of American constitutional history, also want to see themselves as part of a seamless jurisprudential tradition, and they venerate some of the same Progressive heroes as their liberal adversaries do…. In this tale, the good guys are Holmes, Frankfurter, and other Justices who are said to have properly put their political views to one side to enforce the Constitution as written.

From the promotional materials for Judge J. Harvie Wilkinson’s just-released Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.

The judicial modesty once practiced by Learned Hand, John Harlan, and Oliver Wendell Holmes has given way to competing schools of liberal and conservative activism seeking sanctuary in Living Constitutionalism, Originalism, Process Theory, or the supposedly anti-theoretical creed of Pragmatism…. Judge Wilkinson calls for a plainer, simpler, self-disciplined commitment to judicial restraint and democratic governance….

I was actually a bit surprised to see that Wilkinson invokes Holmes and Hand.  When I talk about Holmes and the heroic role he has traditionally played in constitutional history, the usual retort is that Holmes, though he turned a good phrase,  is passe as a role model now that he’s been widely recognized as a misanthrope with Social Darwinist tendencies who cared not a whit about the rights of minorities, or of anyone else for that matter.

As for Hand, true to his Progressive (as in the early 20th century Progressive movement) ideology, his valedictory lectures at Harvard Law School in the late 1950s denounced Brown v. Board of Education, First Amendment protection for Communists, and the use of the Fourteenth Amendment’s Due Process Clause to protect any substantive rights including those “incorporated” from the Bill of Rights. I  would have thought that invoking his legacy would be rather unlikely to inspire 21st century readers.  I”ll report further after  I read the book.