The Volokh Conspiracy

That’s the title of my new law review article, currently in the editing process at the Charleston Law Review. A draft is available at SSRN, and comments are welcome. The final part of the article suggests how the history might inform our modern understanding of Second Amendment rights.

Well, yesterday was certainly a good day for one of my least favorite American politicians of the twentieth century, Theodore Roosevelt, who combined gross economic ignorance with an almost adolescent jingoism. GOP frontrunner (!) Newt Gingrich has (once again) declared himself to be a “Theodore Roosevelt Republican” (though disclaiming the more socialistic Roosevelt of his post-presidential career) while President Obama, in a much ballyhooed speech, lavished praise on post-presidential Teddy for recognizing the need to add many layers of regulation to the free market.

But the main topic of this post is President Obama’s acceptance and elaboration of Progressive mythology about pre-Progressive America, the America of the late nineteenth and early twentieth century, before a wave of Progressive and World War I inspired regulation significantly increased the role of government in American economic life.

Here’s Obama:

You see, this isn’t the first time America has faced this choice. At the turn of the last century, when a nation of farmers was transitioning to become the world’s industrial giant, we had to decide: would we settle for a country where most of the new railroads and factories were controlled by a few giant monopolies that kept prices high and wages low? Would we allow our citizens and even our children to work ungodly hours in conditions that were unsafe and unsanitary?

This line of thought goes back to the Progressive era itself. As I point out in Rehabilitating Lochner: “Progressives were convinced workers’ living standards were falling, and were in constant danger thanks to unregulated immigration, unregulated labor markets, and a paucity of strong labor unions. Supporters of liberty of contract, by contrast, believed that workers’ lot, though often unpleasant, was gradually improving thanks to the American system of contractual freedom.”

Contrary to the implications of Obama’s speech, the latter group seems to have had the better of the argument. Despite massive immigration during this period and despite (or maybe because of) the lack of labor regulation and low unionization, best estimates are that real wages in manufacturing in the U.S. increased almost 40% between 1890 and 1914. Lawrence H. Officer, Two Centuries of Compensation for U.S. Production Workers in Manufacturing (2009); Albert Rees, Real Wages in Manufacturing 1890-1914 (1961). [Update: I don't have statistics handy, but working hours were going down without government intervention--for example, few bakers, the subject of the 1895 ten-hour a day law invalidated in Lochner, worked more than ten hours by 1910--and child labor was declining rapidly outside the impoverished Deep South.]

Oddly enough, Obama also praises Roosevelt for supporting a minimum wage for women. Chapter 4 of Rehabilitating Lochner describes the impetus for such laws, and much of the relevant the information in that chapter can be found in this paper published in Law and Contemporary Problems. The history is too rich to give an adequate summary here. Let’s just say that the history of such laws is not pretty. The laws’ primary supporters included male-only labor unions that wanted to keep women out of the workplace–women-only minimum wage laws almost never passed without strong from unions that typically opposed minimum wage laws for men; eugenicists who wanted women to stay home and take care of their children; bigots who thought that only the lower order of men (including Eastern European immigrants) would allow their women to work for wages; moralists who believed that low-wage women were susceptible to vice and should therefore stay out of the workforce; and economists who believed that, as Felix Frankfurter summarized in his brief in Adkins v. Children’s Hospital, women who wanted to work but could not command a government-imposed minimum wage were “semi-employable” or “unemployable” workers who should “accept the status of a defective to be segregated for special treatment as a dependent.”

Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.”  Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”

Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation  violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). According to the unanimous Burns court, the idea that contracts could be limited to members of the same race was absurd: “Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other. If so, laws prohibiting the races from suing each other, giving evidence for or against, or dealing with one another, would be permissible. The very excess to which such a construction would lead is conclusive against it.”

That same year, the Texas Supreme Court unanimously ruled that  the “the law prohibiting such a [common law] marriage [between a white and a black] had been abrogated by the 14th Amendment to the Constitution of the United States.” Bonds v. Foster, 36 Tex. 68 (1872) (inheritance case). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.

It was the Indiana Supreme Court  that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is  ”more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing a racial  mandate on the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).

I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex. App. 263 (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)

By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.

Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on void for vagueness, the fundamental unenumerated right to marry, and First Amendment  free exercise of religion, rather than a categorical attack on all racial discrimination).

Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.’”

So said the unanimous Supreme Court in United States v. Linder, 268 U.S. 5 (1925). The opinion was written by McReynolds, and joined by the progressive Justices Brandeis and Holmes, along with the rest of the Court.

At issue was the federal Harrison Anti-Narcotic Law, which taxed opium and coca leaves, and their derivatives. Ostensibly as part of the tax scheme, the Act also required registration of those drugs. A physician lawfully dispensed one tablet of morphine and three tablets of cocaine to a female patient who was an addict. The trial court instructed the jury that Dr. Linder’s actions would be lawful if the drugs were dispensed as painkillers for stomach cancer or an ulcer, but not simply because the patient was an addict. As the Supreme Court observed, the indictment “does not question the doctor’s good faith nor the wisdom or propriety of his action according to medical standards. It does not allege that he dispensed the drugs otherwise than to a patient in the course of his professional practice or for other than medical purposes. The facts disclosed indicate no conscious design to violate the law, no cause to suspect that the recipient intended to sell or otherwise dispose of the drugs, and no real probability that she would not consume them.”

The Court pointed out that “Congress cannot, under the pretext of executing delegated power [here, the Tax Power], pass laws for the accomplishment of objects not intrusted to the federal government. And we accept as established doctrine that any provision of an act of Congress ostensibly enacted under power granted by the Constitution, not naturally and reasonably adapted to the effective exercise of such power, but solely to the achievement of something plainly within power reserved to the states, is invalid and cannot be enforced.” This was supported by a string cite starting with McCulloch v. Maryland.

In the instant case, the power to tax cocaine and morphine carried with it incidental powers to effectuate that tax, and the effectuation of the tax was the sole legitimate use of incidental powers. Incidental powers could not be construed to control a physician’s decision about properly taxed and registered products:

“Obviously, direct control of medical practice in the states is beyond the power of the federal government. Incidental regulation of such practice by Congress through a taxing act cannot extend to matters plainly inappropriate and unnecessary to reasonable enforcement of a revenue measure. The enactment under consideration levies a tax, upheld by this court, upon every person who imports, manufactures, produces, compounds, sells, deals in, dispenses or gives away opium or coca leaves or derivatives therefrom, and may regulate medical practice in the states only so far as reasonably appropriate for or merely incidental to its enforcement. It says nothing of ‘addicts’ and does not undertake to prescribe methods for their medical treatment. They are diseased and proper subjects for such treatment, and we cannot possibly conclude that a physician acted improperly or unwisely or for other than medical purposes solely because he has dispensed to one of them in the ordinary course and in good faith, four small tablets of morphine or cocaine for relief of conditions incident to addiction. What constitutes bona fide medical practice must be determined upon consideration of evidence and attending circumstances. Mere pretense of such practice, of course, cannot legalize forbidden sales, or otherwise nullify valid provisions of the statute, or defeat such regulations as may be fairly appropriate to its enforcement within the proper limitations of a revenue measure.”

Thus, said the Court, Linder was different from previous cases in which the Court had upheld the prosecution of physicians whose prescription of large quantities of drugs was obviously a sham, for no medical purpose, and simply to serve as a conduit for drugs to the general public.

It is not surprising that Linder was relied in several cases finding that Congress had exceeded tax power. U.S. v. Butler (1936); Hopkins Federal Savings & Loan Ass’n v. Cleary (1935); U.S. v. Constantine (1935); Trusler v. Crooks (1926).

Significantly, after 1937, the Court continued to rely on Linder, and in upholding other statutes, to distinguish them from the mis-application of the statute in Linder. “While there has long been recognition of the authority of Congress to obtain incidental social, health or economic advantages from the exercise of constitutional powers, it has been said that such collateral results must be obtained from statutory provisions reasonably adapted to the constitutional objects of the legislation. Linder v. United States.” Cloverleaf Butter v. Patterson (1942).

Linder appears the very first paragraph of a case familiar to many VC readers, United States v. Miller (1939). Citing, inter alia, Linder, the Miller opinion says that the federal tax and tax registration system for certain firearms does not “usurp[] police power reserved to the States.”

In U.S. v. Kahriger (1953), Linder is a “But see” footnote for this sentence: “Unless there are provisions, extraneous to any tax need, courts are without authority to limit the exercise of the taxing power.” I think that’s a misreading of Linder. The Court’s point in Linder was that micro-managing a physician’s decision about when to write a prescription was in fact “extraneous to any tax need.” So Linder and Kahriger are not inconsistent.

In a case decided after Kahriger, the Court upheld a gambling device tax, expressly distinguishing it from Linder, because the gambling tax is “certainly not a mere ruse designed to invade areas of control reserved to the states.” U.S. v. Five Gambling Devices (1953).

The most important case which relies on Linder is Ashwander v. Tennessee Valley Authority (1936) (upholding the TVA). There, the majority opinion by Chief Justice Hughes affirms that “The Congress may not, ‘under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government.’ Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316, 423; Linder v. United States, 268 U.S. 5, 15, 17.”

Justice Brandeis’s concurrence in Ashwander is, to this day, regarded as the most important guidance for the judicial principles of abstention. Number 7 of the “Ashwander principles” is that a court should attempt to construe a statute so as to avoid a constitutional problem, and for this proposition, Justice Brandeis cited Linder, among other cases.

In short, even if one takes the view that cases upholding certain aspects of the New Deal and the Fair Deal enjoy some sort of supra-precedential status that earlier cases do not, Linder is part of the fabric of those privileged cases.

My latest article in the Green Bag (link will open seven-page PDF file):

(1) First, social reform was not in nearly as much danger from Lochner as the standard story suggests….

(2) The supposed simple-minded formalism of late nineteenth and early twentieth century judges has been called into serious question by recent scholarship….

(3) Brandeis’s Muller brief was not as original as his admirers have suggested….

(4) Brandeis’s brief was not as bold as often portrayed, because Oregon’s attorney general filed a traditional brief focusing on the relevant legal precedents….

(5) Brandeis’s brief, rather than being a social science masterpiece, consisted largely of a “hodgepodge” of reports of factory or health inspectors, testimony before legislative investigating committees, statutes, quotes from medical texts, among other miscellany. Some of the “scientific” arguments presented in the brief are nonsensical, even given the state of medical knowledge at the time….

(6) Brandeis’s brief likely did not influence a single vote on the Supreme Court….

(7) While Brandeis Briefs quickly became commonplace in constitutional litigation over social reform, such briefs did not have any clear significant effect on the outcome of Progressive-era cases….

Bonus myth: Despite many assertions to the contrary, Brandeis evinced little interest in women’s legal equality, and was at best a very tepid supporter of women’s rights.

Gary Lawson and I explain why, in an article published last week by Yale Law Journal Online.

In short, the Necessary and Proper Clause expressed the well-known agency law doctrine of principals and incidents. That is, the grant of power to an agent (and the federal government was an agent of the people, to exercise certain delegated powers) was considered to include incidental powers. (Unless the parties specified to the contrary.) To be an incidental power, a power had to be subsidiary to, inferior to, and “less worthy” (in the language of the time) than the principal power. So if A delegates to B the power to manage A’s farm for five years, B could lease part of the farm to C for a few years, but B could not sell the farm. The power to sell the farm is not an “incident” of the power to manage a farm. It is a power that is as great as the power to manage the farm.

Thus, the first half of Chief Justice Marshall’s opinion in McCulloch wrestles with the question of whether the power to establish a corporation (here, the 2d Bank of the United States) can be considered an “incident” of the enumerated congressional powers. This portion of the opinion is often expurgated from constitutional law textbooks. But not from Randy Barnett’s Constitutional Law: Cases in Context.

So is the power to order people to engage in commerce with certain corporations “incidental” to the enumerated power “to regulate Commerce . . .  among the several States”? Lawson and I argue that the power to compel intrastate commerce is of at least equal “dignity” as the power to regulate voluntary interstate commerce. Thus, the individual mandate cannot be justified a “necessary and proper” to the exercise of the power to regulate interstate commerce.

Further, the word “proper” affirms the agency/fiduciary law rule that an agent  must act reasonably, and when he is acting on behalf of several principals must treat the principals equally. So in Rooke’s Case, it was unreasonable that the entire costs of a water control project were imposed on a single landowner, when other landowners also benefited from the project. In Leader v. Moxon (1773) paving commissioners were unreasonable when they ordered a road repair that effectively buried the doors and windows of the plaintiff’s house, making plaintiff bear the entire burden of a project that was supposedly for the benefit of him and others. In the Founding era, government creation of a monopoly was the paradigm example of a government act that was not “proper,” because the monopolist was benefited to the detriment of everyone else.

In 1787, a consumer could at least choose not to buy the monopolist’s product.  ”The conclusion is clear: if a commercial monopoly—which citizens may avoid by not purchasing the product monopolized—is constitutionally void as ‘improper,’ then far more ‘improper’ is a mandate for the benefit of political favorites, which none but other political favorites may avoid. . . . [C]oerced commerce with congressionally favored oligopolists is constitutionally improper and void.”

Thus, if the Supreme Court follows the original meaning of the Necessary and Proper clause, and McCulloch v. Maryland‘s accurate exposition of that meaning, the Court will not rule in favor of the individual mandate as a necessary and proper exercise of the power to regulate interstate commerce.

University of Wisconsin Professor (and Seventh Circuit nominee) Victoria Nourse and I discussed Lochner v. New York for the Federalist Society’s Madison chapter. Wisconsin Eye (Wisconsin’s version of C-Span) was there, and posted this video of the event.

In other Rehabilitating Lochner news, attorney Thomas Bowden’s review in the George Mason Law Review can be found here. (“A a serious and significant work of historical revisionism. … Rehabilitating Lochner belongs on the short list of works that effectively debunk myths clinging to important Supreme Court cases.”)

As a reminder, you can read the introduction to the book for free here.

This Wednesday, I will be giving a talk at NYU Law School on the Tea Party Movement and Popular Constitutionalism. The talk will be at 11 AM in Vanderbilt Hall, Room 202. NYU Professor Roderick Hills will comment on my presentation, and there will also be questions from the audience until around 12:30 or so.

I previously wrote about the Tea Party as a popular constitutionalist movement in this article. In my talk, I will explain why the Tea Party qualifies a popular constitutionalist movement despite the fact that that concept has previously been used mostly to describe movements on the political left and assess its main strengths and weaknesses. Like previous popular constitutionalist movements, the Tea Party has not avoided such problems as the impact of widespread political ignorance.

I will also suggest why its impact is likely to be a net positive on balance – including from the standpoint of the mostly left of center advocates of popular constitutionalism, a point I first developed in the article linked above. Given that it was inevitable that the combination of Obama’s policies and a deep recession would produce a right-wing populist reaction, it is far better that it has produced a movement primarily focused on limiting federal power and spending than one focused on racial resentment or xenophobia, as was often the case in previous American history and in many European countries today. In addition, the movement’s emphasis on limiting federal power could potentially increase democratic accountability in government – a central objective of many advocates of popular constitutionalism.

UPDATE: In this 2010 post, I discussed claims that the Tea Party’s real agenda is racism.

Vladimir Putin’s recent announcement that he intends to return to the presidency after the 2012 election has been rightly denounced as a deepening of authoritarianism in Russia. Having effectively repressed Russia’s opposition parties and media, Putin is now consolidating his position as a dictator. Barring some sort of sudden collapse of his regime (which is by no means impossible), he can now rule into the 2020s with little or no effective opposition.

It’s worth remembering that Putin had to leave the presidency in the first place because Russia’s 1993 Constitution bans presidents from serving more than two consecutive terms. Therefore, he turned the office over to his handpicked successor Dmitri Medvedev, who will now become prime minister after Putin’s nearly inevitable victory in the 2012 election, from which most opposition parties are effectively excluded from participating. Putin’s return to the presidency cuts off any hope that the Russian government will continue Medvedev’s moves towards modest political and economic liberalization.

The whole sorry situation highlights the wisdom of the US Constitution’s 22nd Amendment, which not only bars presidents from serving more than two consecutive terms, but also forbids two-term presidents from ever holding the office again in the future. That prevents American presidents from pulling off the trick that Putin used with Medvedev – leaving a loyal flunky in power for four years and then returning to office. It thereby makes it much harder for any one man to consolidate dictatorial dominance.

Obviously, there are many other differences between the US and Russian political systems that make authoritarianism a lesser danger in the former. Nonetheless, the power of the modern presidency is great enough that a popular leader who could serve indefinitely might consolidate enormous power and gradually undermine democracy. At the state level, term-limited governors who are allowed to return to office later have sometimes used relatives or friends as placeholders for a term until they can return to power. George Wallace, for example, used his wife Lurleen.There is no reason why a president could not adopt the same tactic.

In the Russian case, Medvedev might well have taken a more liberal and independent line if he knew that Putin could not come back. Even if Medvedev did not do so, other Russian political elites might have acted differently if not for the spectre of Putin’s return hanging over them. At the very least, it would have been harder for Putin – or anyone else – to concentrate power in the hands of one man and the narrow clique surrounding him. In theory, Putin might have been able to just ignore the Constitution in 2008 and stay in power anyway. But doing so would have undermined his legitimacy with the West, and probably at home as well. That’s why he chose to leave office in 2008 rather than stay on illegally.

Despite Putin’s imminent return to the presidency, his power is not completely secure. Even with government control of much of the media, public opinion is starting to turn against him and especially his government. If the price of oil falls, Russia’s oil-dependent economy will decline with it, and other elites might then find it in their interest to turn against the regime. Putin’s government is not nearly as brutal and oppressive as its Soviet predecessor, and there are still many active opposition groups who could take advantage of the government’s difficulties. For the time being, however, Putin has successfully consolidated his authoritarian regime. And his ability to return to the presidency after a four year hiatus is one of the reasons why.

That’s the title of my new article in the Journal of Supreme Court History. For those without on-line access to the Journal, you can read the unformatted version here. The abstract:

Lochner v. New York and the liberty of contract doctrine enunciated in that case have been denounced by legal scholars from all points of the political spectrum for decades. So perhaps the most surprising aspect of the history of the liberty of contract doctrine is that modern Fourteenth Amendment jurisprudence is at least as much a product of the Lochner line of cases as of the views of their Progressive opponents. Progressive critics of Lochner certainly emerged victorious on one very important issue—the Supreme Court no longer engages in serious review of economic regulations under the Due Process Clause. But despite the calumny heaped on the due process liberty of contract decisions and the Supreme Court Justices who wrote them, modern constitutional jurisprudence implicitly (and sometimes explicitly) draws a great deal from pre-New Deal due process decisions rejecting novel assertions of government power. This article is based on material published in David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011).

Here’s a taste of Damon Root’s review:

Drawing on both previous legal scholarship and his own extensive historical research, Bernstein offers a definitive account of this misunderstood and unjustly maligned case. Not only did Lochner represent the victory of small-scale producers over large, politically connected special interests, Bernstein points out, but the ruling led directly to several of the Supreme Court’s most important early decisions in favor of civil rights and civil liberties under the 14th Amendment, including Buchanan v. Warley, the landmark 1917 case in which the National Association for the Advancement of Colored People scored its first victory before the Supreme Court. If anyone consistently sided with the powerful against the powerless, it was Lochner’s Progressive Era critics. Progressive legal activists didn’t just take a dim view of individual rights under the Constitution. They typically supported state action in all of its vilest forms, including Jim Crow laws and anti-immigrant laws.

Thanks to George Will, the book is out of stock at Amazon and BN.com. It’s available through third-party sellers, or better yet it’s available for $26.95, over nine dollars less than the current Amazon price, if you order from the Cato Institute. Shipping is free with a $40 purchase. You can also rent a digital edition of the book for only $7 from University of Chicago Press.

That’s the question raised by a lawsuit in Colorado’s federal district court, in the case of Kerr v. Hickenlooper. In an amicus brief, I suggest that the answer is “no.” The brief relies heavily on the scholarship of my Independence Institute colleague Rob Natelson, who happens to be the leading scholarly expert on the Guarantee clause.

In short, the Founders defined a “republic” to include governments such as those of ancient Athens, Carthage, and Sparta, all of which included elements of direct democracy. According to Minor v. Happersett (U.S. 1875), the decision of Congress to admit a state to the Union is conclusive proof that, at the time, the state had a Republican Form of Government. Massachusetts and Rhode Island had referenda when they were admitted. The progressive movement for initiative and referendum began in the last 19th century. Congress chose to admit Oklahoma (1907) which had very strong I&R provisions in its state constitution, and New Mexico (1911), whose statehood constitution specifically provided for the creation of a citizen initiative system.

Courts have held that the Republican Form of Government issue is not justiciable, and enforcement is up to Congress. The amicus brief, however, addresses the merits of the issue.

I’ve been perusing the blogs to see how folks are reacting to Will’s column on Rehabilitating Lochner, which I blogged about yesterday.

Many liberal commentators and blog commenters are taking the position that Will’s defense of Lochner is obtuse because restoring liberty of contract would take the U.S. back to the labor conditions of a century ago, and allow employers to exploit employees. The underlying understanding of American economic history resembles what I vaguely recall from my fourth grade social studies class: big corporations oppressed helpless workers, until labor unions backed by federal labor legislation stepped in to even the playing field.

Put aside the fact that, as Will points out, the large corporate bakeries actually supported the hours law at issue in Lochner, while it was small, family run bakeries with little economic wherewithal that opposed the law (are you listening, People for the American Way bloggers?). More generally, it’s a fallacy to think that working hours, conditions, and wages improved thanks to federal labor laws. Rather, all of these things improved because Americans got richer, with American workers becoming more and more productive.

Take the baking industry. After Lochner, there were no legal restrictions on how many hours a baker could work. According to the story liberals are telling, this should have meant that bakery employers in New York would now compel workers to work well more than the ten-hour a day limit the law invalidated in Lochner had imposed.

Instead, by 1909, only four years after Lochner, less than nine percent of bakers nationwide worked more than ten hours a day, and that nine percent were concentrated in basement bakeries that were rapidly becoming obsolete. Even New York’s Jewish bakers, considered the worst-off of the city’s bakers, successfully negotiated for a nine-hour day in 1910. By 1919, eighty-seven percent of bakers nationwide worked nine hours a day or less and only three percent of bakers worked more than ten hours a day.

Labor conditions, in short, improved without labor legislation. Labor laws can outlaw some outlier abusive practices, and help some workers in the short run, though usually at the expense of others. But, as rule, they don’t raise productivity and societal wealth, which is what ultimately leads to a better deal for workers.

UPDATE: Media Matters: “Contrary to Will’s mythology, Lochner is in no way a liberal bogeyman.” Except for the fact that the liberal Media Matters starts off the very same post by accusing Will, in his defense of Lochner, of a “crusade to overturn the 20th century.” LOL.

George Will’s latest column is devoted to my book! It starts:

Liberal certitudes continue to dissolve, the most recent solvent being a robust new defense of a 1905 Supreme Court decision that liberals have long reviled — and misrepresented. To understand why the court correctly decided Lochner v. New York and why this is relevant to current arguments, read David E. Bernstein’s Rehabilitating Lochner: Defending Individual Rights against Progressive Reform.

As they say, read the whole thing. (And to preempt the inevitable question, I really have no idea how Will came across the book. Also, you might want to check out this recent podcast I did with the folks at the New Ledger.)

Will gives a concise summary of some of the major themes the book, and I’m obviously pleased with the favorable attention. I do have two quibbles/caveats: First, while I don’t object to anyone concluding after reading the book that Lochner was correctly decided, I don’t make that argument. I instead limit myself to arguing that Lochner was a reasonable decision given precedent, constitutional text, and the legal, intellectual, and political culture of the day–but so was Justice Harlan’s (but not Justice Holmes’s more famous) dissent.

Second, it’s true that liberals have traditionally reviled Lochner, and Lochner-bashing seems to be in particular fashion on the left of late as folks on the left contemplate a modern Supreme Court dominated by what they consider right-wing judicial activists. But it’s also true that for the last several decades, conservative jurists have been, if anything, even more anti-Lochner than their liberal counterparts. As I’ve mentioned before, when I’ve talked about the book at law schools, my only vociferous critics have been conservatives, while liberal commenters have ranged from very supportive to at least open-minded. (And see this review by conservative lawyer George Liebmann, and my response).

More generally, with regard to the Fourteenth Amendment one can see modern liberal jurisprudence as something of an amalgam of Progressive hostility to restrictions on economic regulation combined with a Lochnerian concern for limits to the states’ police power, with Lochner-era decisions such as Meyer v. Nebraska and Pierce v. Society of Sisters reinterpreted, expanded, and revised to suit modern liberal sensibilities. It’s conservatives like Robert Bork, by contrast, who have fully accepted the traditional Progressive critique of Lochner, and disclaim use of the Fourteenth Amendment to restrain state power in just about any context; Justice Scalia, for example, seems to think that Pierce, which prevented states from shutting down all private schools, was wrongly decided.

Conservative hostility to Lochner will likely remain fierce so long as abortion rights remains a constitutional controversy (and the looming same-sex marriage controversy doesn’t help). I don’t think that accepting Lochner’s rehabilitation implies that Roe v. Wade was correctly decided–heck, it doesn’t even imply Lochner was correctly decided–but a lot of conservatives seem to, and Roe is to them as Moby Dick is to Captain Ahab. Anything that potentially undermines the case against Roe, including treating Lochner like a normal case and not a symbol of all that’s wrong with American jurisprudence, is unacceptable. On the other had, both National Review and Commentary have published favorable reviews of my book–not to mention Will’s column–so maybe there’s hope that the caricaturing of Lochner in conservative legal circles is nearing an end.

My recent article for America’s 1st Freedom traces the rise and fall of the theory that the Second Amendment is not an individual right, but instead is a “collective right,” which, like “collective property” in a communist country, supposedly belongs to everyone collectively, but in fact belongs to no-one. The theory was created by a federal district judge in 1935, formally named by the New Jersey Supreme Court in 1968, and became popular among lower federal courts during the next quarter-century.

Historical and textual analysis made it increasingly clear that the theory was completely implausible, and it was unanimously rejected by the U.S. Supreme Court in the 2008 case District of Columbia v. Heller. In that case, all nine justices agreed that the Second Amendment right was individual, while they disagreed about its scope.

Doug Kendall of the Constitutional Accountability Center writes: “The Tenth Amendment, like all other Amendments, is a binding part of the Constitution that should be fully respected…. [But w]hen the states ratified the Constitution, they renounced their status as fully-independent sovereigns and endowed the federal government with enumerated but substantial powers.”

Kendall is correct. Anyone, tea partier or not, who claims that the states retain full “sovereignty” after 1789 doesn’t know what he is talking about.

Kendall’s next sentence, however, doesn’t follow at all: “The Tenth Amendment does not give tea partiers, or anyone else, a constitutional basis for rolling back critical laws that protect Americans’ health, safety, and retirement security.”

Through the New Deal period, it was accepted that the states did retain an important element of sovereign power inherited from the British Parliament, the “police power.” The scope of the police power was subject to much debate, but it was typically thought to at least conclude the power to protect and promote state citizen’s health, safety, and morals. Progressive types argued that promoting the public’s “welfare” was also part of the police power.

Meanwhile, the Commerce Clause provided the federal government with the power to regulate commerce among the states. The scope of this power was also disputed, but there was a consensus that the Clause could not have provided the federal government with a “general police power,” because the states (and “the people”) never delegated, and would not have delegated, that aspect of sovereign power to the federal government. And then the Tenth Amendment reminds us that “the powers not delegated to the United States by the Constitution” remain with the states.

If the states HAD delegated the general police power to the Federal Government, then the liberty of contract cases of the pre-New Deal period would have had far more extreme outcomes. The reason that most forms of novel (and not so novel) state and local regulation were upheld before the New Deal period was because courts found that even if these laws interfered with liberty of contract, they were with the states’ sovereign police powers.

Well, you may ask, why can’t both the federal and state governments have a sovereign police power? It just can’t be, given the nature of sovereignty. The federal and state governments can have overlapping powers, but they can’t have overlapping sovereignties.

In short, then, the Tenth Amendment can, and historically has been, used as an argument to “roll back” federal health and safety laws. Whatever the scope of the Commerce Clause, it can’t be the equivalent of a general police power, and the Tenth Amendment is part of the reason why. But since the New Deal period, most liberal jurists have adopted theories of the Commerce Clause that put no practical limits on federal regulatory power, and therefore do give the federal government the equivalent of a police power. [Just for example, in the Lopez case, the majority challenged Justice Breyer, who dissented, to come up with a single example of a federal law that would be unconstitutional under his interpretation of the Commerce Clause. Breyer demurred, most likely because there is no such law.]

Folks like Kendall simply don’t take the understanding of state-federal relations that prevailed for over 150 years seriously, as witnessed by the fact that he used the precise example–health and safety laws–that would most clearly undermine his point. Of course, Kendall is free to argue that the whole notion of police powers, state sovereignty, and whatnot is undermined by the last seventy years of American history, and it’s certainly a legitimate argument. But that’s a far cry from saying that the counterargument is somehow crazy, irresponsible, or ahistorical.

UPDATE: It occurs to me that one possible reading of Kendall is that he meant only that the Tenth Amendment, by itself, can’t be used to challenge federal health and safety laws, as some tea partiers seem to believe based on incorrect notions of state sovereignty. If that’s what he meant, then I agree with him, at least outside the context of legislation that operates directly on the states as such.

Let’s say I wrote a book that had the following thesis: (a) Governments tend to favor those with political power; (b) before World War II, Jews in Poland had little political power; and (c) therefore, various labor regulations enacted in Poland between 1920 and 1938, tended at best not to take the interests of Jews into account, and at worst was intentionally aimed at excluding them from the workforce. Judicial decisions invalidating labor regulations, by contrast, tended to help Jewish workers. Let’s say the book provided specific examples that backed up this thesis.

I think that it’s unlikely that anyone would bat an eye–while readers may or may not think I had dealt appropriately with various nuances, the main thesis would seem intuitively obvious, and the examples would be seen as basically what one would have expected.

Okay, now substitute “African Americans” for “Jews,” and “the United States” for “Poland,” and begin the time period in the 1880s instead of 1920 [Poland, of course, having been part of the Russian Empire before WWI]. This is the thesis of my 2001 book, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal. It attracted, and still occasionally attracts (as when I briefly mentioned it on this blog yesterday), some controversy (along, of course, with some plaudits). In part the controversy arises because the thesis is contrary to a certain mythos that American “progressive” forces–labor unions, racial minorities, and political elites and intellectuals who favor vigorous government regulation of the economy–are in natural harmony. In part, some critics seem to implicitly and uncharitably believe that while “our” academic work is neutral social science, “they” must have an underlying presentist political and ideological agenda.

If, however, one can separate the book’s thesis from its rather tenuous relationship to various modern controversies, it’s really no more remarkable, nor any more ideologically charged, that the Poland/Jews example provided above.

A reader emailed to say he enjoyed Rehabilitating Lochner, and wonders if I could recommend additional books on the same or closely related topics. Okay. Just note that my recommendation doesn’t necessarily constitute an endorsement of the author’s conclusions.

David Mayer, Liberty of Contract: Rediscovering a Lost Constitutional Right. Very recent, and covers some of the same ground as Rehabilitating Lochner--Mayer, a J.D./Ph.D. in history, also approaches the subject from a historical perspective. Unlike me, Mayer takes a normative position that liberty of contract is protected by the Fourteenth Amendment and should be judicially enforced.

Paul Kens, Lochner v. New York: Economic Regulation on Trial. The last major scholarly work [note that the original version of this book was published in 1990, based on a Ph.D. thesis written even earlier] on Lochner to propound the traditional view of Lochner–that its origins lie in “laissez faire Social Darwinism” and that its consequences were almost uniformly bad–that has lost favor among historians and that Rehabilitating Lochner tries to discredit once and for all. Comparing and contrasting the two books would make a great assignment for a constitutional history seminar.

Kenneth Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law. My favorite constitutional history book, ever.I reviewed it here. Kersch’s influence is apparent in several places in Rehabilitating Lochner. In particular, Kersch emphasizes how post-New Deal legal elites distorted pre-New Deal constitutional history to justify the massive changes to constitutional doctrine that occurred starting in the 1930s.

David Bernstein, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal. My previous Lochner-related book. The basic idea: (a) Legislators tend to favor those with political power; (b) before the modern civil rights era, African Americans had little political power; and (c) therefore, New Deal and pre-New Deal labor legislation tended at best not to take the interests of African Americans into account, and at worst was intentionally aimed at excluding them from the workforce. Judicial decisions favoring free labor markets, by contrast, tended to help African-American workers.

Bernard Siegan, Economic Liberties and the Constitution. A somewhat dated revisionist account of the Supreme Court’s economic liberties jurisprudence. What’s remarkable about this book is that when it was published in 1980, there had been exactly one law review article even mildly sympathetic to that jurisprudence in the last forty or so years. Siegan, then, was operating at a huge scholarly disadvantage, and did an incredible job. Siegan’s second edition is a complete and very inferior rewrite. Instead, check out Tim Sandefur, The Right to Earn a Living: Economic Freedom and the Law.

Howard Gillman, The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence. Gillman locates the origin of Lochner and other “substantive due process” cases of the pre-New Deal era in the anti-”class legislation” tradition going back to the Jacksonian era and beyond. I think Gillman overstates his case, but the book is undoubtedly an important contribution to Lochner historiography.

Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution. An “internalist” account of constitutional change during the 1930s, focusing on the weaknesses and internal contradictions in pre-New Deal constitutional jurisprudence, as opposed to political and historical forces operating on the Court. Query whether the changes that took place in the mid-1930s were nearly as consequential as what happened when the more traditionalist Justices who shared at least some common premises were replaced with a series of Roosevelt appointees in the late 1930s and early 1940s.

G. Edward White, The Constitution and the New Deal. Lots of interesting insights in this book, including a discussion of just how out-of-the-mainstream Justice Holmes’s due process opinions were at the time.

Albert Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes. Some VC commenters have given me a hard time about my negative views of Justice Holmes. Alschuler almost makes me look like a fan in comparison.

Richard Epstein, How Progressives Rewrote the Constitution. The title speaks for itself.

Michael Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s. Uneven, but definitely worth a look if you are interested in Lochner.

Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty. Only tangentially related, but always worth a plug!

Jack Balkin, Constitutional Redemption: Political Faith in an Unjust World. Contains an excellent “historicist” discussion of Lochner, and is well worth reading otherwise.

James W. Ely, The Guardian of Every other Right: A Constitutional History of Property Rights. The title speaks for itself.

The Seventh Circuit’s decision in Ezell v. Chicago is a tremendously important case for Second Amendment doctrine. The key rules from Ezell: use originalism from both 1791 and 1868 to determine if an activity is within the scope of the Second Amendment right. If it is, apply First Amendment doctrine, and make the standard of review more stringent when the activity is closer to the core of the right, and when the government is prohibiting rather than regulating. Generally speaking, when looking for guidance, look to Eugene Volokh.

As the above rules apply to the case at bar: The right to practice with firearms is an important ancillary to the core of the Second Amendment right, so Chicago’s ban on firing ranges is subject to not-quite-strict scrutiny.

Here’s how the Ezell court set forth the above standards.

The Second Amendment is like the First Amendment, in that a temporary deprivation of the right may constitute irreparable harm:

[F]or some kinds of constitutional violations, irreparable harm is presumed. See 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2948.1 (2d ed. 1995) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”). This is particularly true in First Amendment claims. See, e.g., Christian Legal Soc’y, 453 F.3d at 867 (“[V]iolations of First Amendment rights are presumed to constitute irreparable injuries . . . .” (citing Elrod v. Burns, 427 U.S. 347, 373 (1976))). The loss of a First Amendment right is frequently presumed to cause irreparable harm based on “the intangible nature of the benefits flowing from the exercise of those rights; and the fear that, if those rights are not jealously safeguarded, persons will be deterred, even if imperceptibly, from exercising those rights in the future.” Miles Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 548 (6th Cir. 2010) (internal alteration and quotation marks omitted); see also KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). The Second Amendment protects similarly intangible and unquantifiable interests. Heller held that the Amendment’s central component is the right to possess firearms for protection. 554 U.S. at 592-95. Infringements of this right cannot be compensated by damages.

When a law is “alleged to infringe Second Amendment rights,” there is a two-step inquiry, beginning with the question “Is the restricted activity protected by the Second Amendment in the first place? See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1449.”

To answer the first question, look to original meaning from both 1791 and 1868:

The answer requires a textual and historical inquiry into original meaning. Heller, 554 U.S. at 63435 (“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”); McDonald, 130 S. Ct. at 3047 (“[T]he scope of the Second Amendment right” is determined by textual and historical inquiry, not interest-balancing.). McDonald confirms that when state- or local-government action is challenged, the focus of the original-meaning inquiry is carried forward in time; the Second Amendment’s scope as a limitation on the States depends on how the right was understood when the Fourteenth Amendment was ratified. See McDonald, 130 S. Ct. at 3038-42.

Courts should follow the Supreme Court’s lead and treat “original public meaning as both a starting point and an important constraint on the analysis. See Heller, 554 U.S. at 610-19; McDonald, 130 S. Ct. at 3038-42. ” [fn. 11].

Footnote 11 offers some examples of what the court apparently sees as the generally correct approach to the original public meaning inquiry:

11 On this aspect of originalist interpretive method as applied to the Second Amendment, see generally AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 215-30, 257-67 (1998); Brannon P. Denning & Glenn H. Reynolds, Five Takes on McDonald v. Chicago, 26 J.L & POL. 273, 285-87 (2011); Josh Blackmun [sic, Blackman] & Ilya Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 GEO. J.L. & PUB. POL’Y 1, 51-57 (2010); Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, “This Right Is Not Allowed by Governments That Are Afraid of the People“: The Public Meaning of the Second Amendment When the Fourteenth Amendment Was Ratified, 17 GEO. MASON L. REV. 823, 824-25 (2010); Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7, 11-17, 50-54 (2008); Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 TEX. L. REV. 237, 266-70 (2004); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359; Stephen P. Halbrook, Personal Security, Personal Liberty, and “The Constitutional Right to Bear Arms”: Visions of the Framers of the Fourteenth Amendment, 5 SETON HALL CONST. L.J. 341 (1995).

If the plaintiffs lose on the “scope” question, then the case is over and the government wins. If the alleged law does apply to something within the scope of the Second Amendment right, the court must apply judicial review. “[T]he rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right. See generally, Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. REV. at 1454-72 (explaining the scope, burden, and danger-reduction justifications for firearm regulations post: Heller); Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1372-75 (2009); Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551, 1571-73 (2009); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 NW. U. L. REV. 923, 979-80 (2009); Glenn H. Reynolds & Brannon P. Denning, Heller’s Future in the Lower Courts, 102 NW. U. L. REV. 2035, 2042-44 (2008).”

The right to arms includes the right to practice with arms: “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective. The Ezell court pointed to the Supreme Court having “quoted at length from the ‘massively popular 1868 Treatise on Constitutional Limitations’ by judge and professor Thomas Cooley: ‘[T]o bear arms implies something more than the mere keeping; it implies the learning to handle and use them . . . ; it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order’.” In addition, “‘No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right.’ (quoting BENJAMIN VAUGHAN ABBOTT, JUDGE AND JURY: A POPULAR EXPLANATION OF THE LEADING TOPICS IN THE LAW OF THE LAND 333 (1880)).”

So what exactly is the standard of review?

“The City urges us to import the ‘undue burden’ test from the Court’s abortion cases…but we decline the invitation. Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635; McDonald, 130 S. Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second Amendment context, see Skoien, 614 F.3d at 641; id. at 649 (Sykes, J., dissenting); Chester, 628 F.3d at 682; Marzzarella, 614 F.3d at 89 n.4; see also Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. REV. at 1449, 1452, 1454-55; Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. at 1376; Winkler, Heller’s Catch-22, 56 UCLA L. REV. at 1572.

So “we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. First, a severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end.” This amounts to what the court calls “not quite ‘strict scrutiny.’” Or it could be called strict scrutiny light. A “an extremely strongly” state interest, rather than a “compelling one”; and “a close fit” rather than “narrowly tailored.”

For “laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.” The Ezell court does not elaborate the doctrine for deciding lesser cases, because the instant case involves a prohibition very close to the core.

The “plaintiffs are the ‘law-abiding, responsible citizens’ whose Second Amendment rights are entitled to full solicitude under Heller . . .The City’s firing-range ban is not merely regulatory; it prohibits the ‘law-abiding, responsible citizens’ of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense.”

In short, the Second Amendment is part of normal constitutional law. The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights. Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times. As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”

One of the great oddities of discussions of Lochner v. New York is that the case consistently gets blamed for interfering with child labor laws. A few examples:

After discussing Lochner’s support for freedom of contract, a public policy textbook by Professor Thomas A. Birkland states that “even the most basic child labor laws were often struck down under the Lochner logic.”

Historian Jonathan Rees blogs that if the Supreme Court had continued to adhere to Lochner’s vision of freedom of contract, it would have invalidated the FLSA “which includes the first minimum wage and bans child labor.”

An encyclopedia entry, of all things, claims that after Lochner, the Supreme Court “expanded on the idea of substantive due process to strike down laws … prohibiting child labor.”

There are two oddities here. First, in the only case I’m aware of to present the issue of direct state regulation of child labor to the Supreme Court, the Court upheld the law unanimously. Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913). Given that Lochner v. New York was decided in 1905, it’s quite obviously untrue that the Justices thought that Lochner’s conception of freedom of contract (or “substantive due process”) prohibited child labor laws. The constitutionality of child labor laws was so well-established that advocates for (much more controversial) protective laws for women consistently tried to lump adult women in with children as classes of workers in need to paternalistic legislation.

Of course, the Supreme Court did invalidate federal laws attempting to adopt national child labor rules, though these cases were decided on federalism grounds, not freedom of contract grounds. One could almost forgive various academics for confusing federalism concerns with liberty of contract concerns, but for the fact that by the end of the so-called Lochner era in the late 1930s, every one of the forty-eight states had laws banning and regulating child labor. Unlike the national Fair Labor Standards Act passed in 1938, most of these laws restricted children under fourteen, as opposed to sixteen, though a sixteen-year rule was gradually gaining traction. But it’s really bizarre to read over and over again how “Lochner” prevented child labor laws, despite the fact that Lochner managed to coexist with child labor laws in every state.

Time magazine managing editor Richard Stengel has penned a cover essay about the Constitution, One Document, Under Siege. My Independence Institute colleague Rob Natelson wrote a response addressing some of the many illogical or inaccurate claims therein.

For example:

Stengel: “The framers . . . gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote and that South Dakota should have the same number of Senators as California, which is kind of crazy.”

Answer: The three-fifths compromise was a way of resolving a particularly thorny political difficulty; it was not an anthropological statement. In fact, the framers did recognize—repeatedly—the personhood of African-Americans. Nor did they “give us the idea” that women couldn’t vote; this was left up to the states, and in 1787 women DID vote, formally or informally, in some states. That may be one reason the Founders deliberately left the Constitution gender-neutral. (See p. 63 in my book, The Original Constitution.)

Whether equality of states in the Senate is a good idea is a matter of opinion, but enough very sane people think so to disqualify the idea from being “kind of crazy.”

For Natelson’s point about personhood, see Federalist 54, explaining that the Constitution recognizes that slaves are “moral persons,” not mere property. That’s why Madison was careful to refer to them as “persons.” In New Jersey,  women had the formal right to vote until the legislature changed the law in 1807.

Stengel: “Your doctor’s stethoscope was made in one state and was shipped to and sold in another.”

Answer: Yes, and Congress may regulate the stethoscope sale.  But the Constitution, properly understood, generally does not permit Congress to regulate what the physician does with the stethoscope, and certainly not how he is paid for his services.

My favorite:

Stengel: “There is an old Latin phrase, inter arma enim silent leges, which roughly translates as “in time of war, the Constitution is silent.”

Answer: I included this because ignorance of Latin and of the Founders’ latinate English has led to many constitutional misinterpretations, and because the mangled, ungrammatical version Stengel uses suggests that he got it from Star Trek (Deep Space Nine) rather than from Cicero.

The phrase is actually “Silent enim leges inter arma.” One reason the Founders were better qualified to address constitutional issues than Mr. Stengel is that they HAD read Cicero, and in Latin.

Incidentally, the correct translation is “For laws are silent amid arms.”

ONU lawprof (and leading legal historian) Scott Gerber, himself the author of an important new book on the rise of the independent judiciary, reviews Rehabilitating Lochner for Eh.net. The punchline: “Rehabilitating Lochner is intellectual history in its highest form…. Bernstein has done nothing less than explode the myth of Lochner…. This is a book that will transform the way constitutional law is understood for years to come.”

Imagine a twentieth century Justice who was a Social Darwinist; who had a self-proclaimed disdain for facts, and who often substituted flip aphorisms for legal analysis; who was the most hostile Justice of the century to the rights of African Americans, dissenting even in cases invalidating peonage laws as violations of the Thirteenth Amendment; who showed virtually no interest in civil liberties, dissenting, for example, from the Court’s decision invalidating a law banning the teaching of foreign languages in private schools; who wrote one of the most intemperate opinions in Supreme Court history, affirming the sterilization of alleged imbeciles, with his only regret that his colleagues made him tone down his wording; who wrote, even after being censored by his colleagues, that instead of waiting to “execute degenerate offspring for crime, or to let them starve for their imbecility,” it’s best to prevent the “manifestly unfit from continuing their kind”; who mocked the notion that the Nineteenth Amendment signaled that the law should treat women equally with men: “It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account;” who was such a strong majoritarian that he argued that “a law should be called good if it reflects the will of the dominant forces of the community, even if it takes us all to hell.”

In fact, you don’t have to imagine such a Justice, as I’ve described Oliver Wendell Holmes, Jr.

One might think that given his highly illiberal views on a wide range of issues, Holmes would be utterly discredited by 2011. But Holmes is still frequently cited by name in the courts, including the Supreme Court. In other words, the Justices still act as if dicta from Holmes is worth more than dicta from the mean Justice, when by all rights it should be the opposite. Holmes is apparently still living off the residual good will engendered by his being on the right side of history in Lochner and other cases involving federal and state regulations, and by the fact that his acolytes (e.g.) created a powerful myth that Holmes was a prescient liberal, a counterfactual that seems to have some residual staying power.

Holmes’s reputation has clearly declined over the past couple of decades, but not so much that judges seem to feel even faint embarrassment in citing and indeed venerating him, nor enough that even elite legal scholars always recognize the decline.

Related thoughts here.

UPDATE: It’s odd, but several commentators for some reason think this post is an attack on modern American liberal jurists. In fact, I think Holmes’s stock these days is higher among conservative jurists than among liberals, and my post was inspired in part by (conservative) Judge J. Harvie Wilkinson’s holding up Holmes as a role model at the recent American Constitution Society national conference. I dealt with the irony of conservatives adopting Holmesian position once associated with the Progressive Left here.

A recent Yale Law Journal Online article by Northwestern law professor Andrew Koppelman argues that the Obamacare individual mandate is obviously constitutional, especially in light of how McCulloch v. Maryland construed the Necessary and Proper clause. Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform (April 2011).

Gary Lawson (Boston Univ.) and I partially agree:

Professor Koppelman evidently believes that the constitutionality of the individual mandate begins and ends with McCulloch v. Maryland. He is absolutely right about that. He simply has the wrong beginning and ending.

Professor Koppelman gets the beginning wrong because he starts his analysis in the middle of the McCulloch opinion instead of where John Marshall began. Chief Justice Marshall‘s famous discussion in McCulloch of the causal connection required by the word “necessary” was preceded by a seven-page analysis of the constitutionality of a federal corporation under the Necessary and Proper Clause. Those seven pages dealt with an issue that Marshall recognized had to be addressed before he decided whether a corporation was a causally “necessary” (or otherwise “proper”) means for implementing federal powers. The threshold question was whether the power to incorporate was incidental or principal.

Our article, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, elucidates the original meaning of the Necessary and Proper clause, which Chief Justice Marshall considered so important, but which professor Koppelman overlooked:

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must exercise a subsidiary rather than an independent power, must be important or customary to achievement of a principal end, and must conform to standard fiduciary obligations.

From administrative law, the Necessary and Proper Clause embodies the closely-related principle of reasonableness in the exercise of delegated power, which independently requires conformance with a similar set of fiduciary norms, including the norms of acting only within delegated jurisdiction and of treating all persons subject to a public agent‘s power impartially.

Evidence from eighteenth-century corporate law – and the Constitution was widely recognized in the founding era as a type of corporate charter – confirms these conclusions about the meaning of the phrase “necessary and proper for carrying into Execution . . . .”

The power to order someone to purchase a product is not a power subordinate or inferior to other powers, such as the power to regulate voluntary commerce. The power to compel commerce is at least as significant – or, in eighteenth-century language, as “worthy” or of the same “dignity” – as the power to regulate insurance pricing and rating practices. It is therefore not incidental to other powers exercised by Congress in the PPACA and must be separately enumerated if it is to exist.

Second, the doctrine of principals and incidents and the principle of reasonableness both embody the fiduciary norm that agents exercising delegated power must treat multiple principals subject to those agents’ power impartially. Interpreting the Necessary and Proper Clause to allow Congress to force private dealings with preferred sellers of products fails that basic fiduciary norm, as illustrated by founding-era concerns about Congress invalidly using the Necessary and Proper Clause power to create monopolies.

In Justice Breyer’s dissent in Sorrell v. IMS Health, he cited United States v. Carolene Products, a Fifth Amendment due process case from 1938, for the proposition that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators.” Breyer adds, “To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial message) would work at cross-purposes with this more basic constitutional approach.”

The obvious problem, not directly addressed by Breyer, is that Carolene Products also states, in famous footnote 4, that “there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” The Court ultimately concluded that it should stringently review legislation coming within the purview of the First Amendment. So it would seem that the lesson of Carolene Products, for the purposes of Sorrell, is that while the rational basis test applies to run-of-the-mill economic legislation, once the First Amendment is implicated heightened scrutiny applies. The Sorrell majority is therefore correct.

Breyer has an implicit response, which is that the core of the First Amendment is the protection of the “marketplace of ideas,” which reflects “the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted.”

So a little history. The idea that the First Amendment is primarily about supporting the democratic process goes back to the Progressive era. Before World War I, most Progressive* jurists (Learned Hand excepted) opposed constitutional protection for freedom of speech for the same reasons they opposed constitutional protections for liberty of contract–they opposed judicial interference with the popular will. Herbert Goodrich’s views reflected the dominant Progressive attitude: “The same kind of argument and the same line of thought which upholds a law which restricts a man in the contracts he may make upholds a law limiting the exercise of his tongue when the majority wills it.” As late as June 1918, Holmes told Learned Hand that free speech “stands no differently than freedom from vaccination,”–the same example he used in his famous Lochner dissent.

Most Progressives eventually came around on freedom of speech for two reasons. First, they were traumatized by President Wilson’s suppression of leftists and dissidents during World War I. Second, Zechariah Chafee and others developed a theory of free speech that differentiated it from what they thought of as the obsolete, individualist, natural-rights based liberties of the American past. Freedom of speech–unlike, say, liberty of contract, or property rights–should receive constitutional protection not because it was an inherent individual right, but because of the importance of political speech to the functioning of a democracy. It helped that Justice Brandeis, in particular, supported this theory of free speech because he thought that the more his favored Progressive causes were publicly discussed and debated, the more popular support they would garner.

So here’s the irony. Breyer cites Holmes’s Lochner dissent for the proposition that when the USSC reviews economic regulations, it resulted “in the constitutionalization of economic theories preferred by individual jurists.” But the idea, adopted by Breyer, that the core of the First Amendment is about the marketplace of ideas and enhancing democracy, and therefore does not include commercial speech, is itself a judicial construct, based on the political theories preferred by Chafee, Holmes, Brandeis and other Progressives–and undoubtedly Breyer himself.

However, the First Amendment itself says nothing about democracy promotion or the marketplace of ideas. It refers only to the “freedom of speech.” Reasonable minds can certainly disagree about what the “freedom of speech” includes, and what standards the judiciary should use in scrutinizing laws that infringe on that freedom.

But it’s a bit rich for Breyer to first accuse the Court of risking a return to an era when the Justices relied on their own ideology to interpret the Constitution, while meanwhile insisting that the First Amendment’s scope must be limited by an atextual theory of interpretation that was invented by ideologically motivated judges and legal scholars in the late 1910s and early 1920s, and that just-so-happens to be consistent with Breyer’s own ideological preferences.

*It’s tiresome to keep repeating this, but when I talk about “Progressives” in the early 20th century, I’m not talking “people who had ideological preferences that would place them comfortably on the left-liberal side of things in 2011,” but people who were ideological fellow-travelers with the Progressive movement of the Progressive era, most of whom had at least some beliefs that modern left-liberals would find absolutely appalling, and indeed disqualifying for a modern progressive. It’s annoying that modern left-liberals have decided to call themselves “progressives”, thus making it virtually impossible to talk about the original Progressives without confusion.