The Volokh Conspiracy

Two issues ago, the Claremont Review of Books published Richard Epstein’s review of my book, Rehabilitating Lochner. In the next issue, two conservative readers criticized Epstein’s review for endorsing Lochner. Claremont asked Epstein and me to respond. Claremont has now posted the letters to the editor and the responses here.

My response focuses not on whether Lochner was right or wrong (I take no position on the issue), but on taking issue with some of the statements and assumptions made in the letters–statements and assumptions that reflect longstanding conservative propaganda points in debates over the Fourteenth Amendment, but that rely on myths inherited from Progressive jurists.

I conclude that

there are quite reasonable arguments that liberty of contract, per se, is not protected by the Due Process Clause. Even if it is so protected, one can reasonably argue that the Lochner Court should have followed Justice Harlan’s dissent and exhibited greater deference to the judgment of the New York legislature. For conservative constitutionalists to make such determinations, however, requires a careful study of the relevant historical and legal materials free from the baggage of the tendentious, politically motivated accounts of Progressives, New Dealers, and their successors on the Left and, surprisingly, the Right.

Claremont’s website doesn’t have a comment feature, but you can contribute to the debate in the comments below.

Jed Purdy has posted an interesting (and extremely polite) response to my critique of his article on the Roberts Court and Lochner here.

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.”

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.

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.

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.

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.

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.

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.

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.”

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.

Back in April, I wrote, “We need a Godwin’s Law for constitutional litigation: the first side to raise Lochner, especially in a case not involving the Due Process Clause, automatically loses.”

Let’s call it “Bernstein’s Law.”

If Bernstein’s law was a criminal law, Justice Stephen Breyer would be going to jail for loooong time, given his dissent today in Sorrell v. IMS Health, a First Amendment/commercial speech case. (Thanks to several VC readers for alerting me to this, and especially to Josh Blackman for saving me the effort of finding all the Lochner references myself).

Here’s Breyer:

[1] “To apply a ‘heightened’ standard of review in such cases as a matter of course would risk what then-Justice Rehnquist, dissenting in Central Hudson, described as a ‘retur[n] to the bygone era of Lochner v. New York, 198 U. S. 45 (1905), in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies….’”

[2] Moreover, given the sheer quantity of regulatory initiatives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitutionalization of economic theories preferred by individual jurists. See Lochner v. New York, 198 U. S. 45, 75–76 (1905) (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory interests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the past in a manner not anticipated by our precedents.

[3] At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. See, e.g., supra, at 7–8, 9–11. At worst, it re-awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue.

To top things off, Breyer invokes Carolene Products and Williamson v. Lee Optical, two very deferential post-1937 due process cases, as providing appropriate guidance in First Amendment commercial speech cases.

Of course, Breyer is simply playing the rhetorical trick that modern liberal constitutionalists have been fond of since at least publication of Laurence Tribe’s constitutional law treatise in 1978: first, to segregate the pre-New Deal Court’s “economic” due process opinions like Lochner (bad!) from it’s “non-economic” decisions like Meyer v. Nebraska (good!) even though the Court made no such economic/non-economic distinction at the time, and neither, for the most part, did its critics; and, second, to conflate due process opinions like Lochner that protected the unenumerated right to liberty of contract with EVERY other serious judicial review of economic legislation, regardless of what provision it arises under, including the First Amendment.

It’s a reasonably effective rhetorical device, but it’s certainly not “history”, and citing flippant remarks of Justice Holmes, who routinely proclaimed himself utterly uninterested in the “facts” of the cases before him, doesn’t help Breyer. Nor does it help Breyer that he cites the late Justice Rehnquist several times. Rehnquist’s hostility to Lochner didn’t lie in his belief that the judiciary should take a hands-off approach to all economic regulation, but in his belief that the judiciary should apply the Due Process Clause narrowly. Thus, unlike Breyer, Rehnquist disparaged Lochner and Roe v. Wade with equal vigor, while of course voting against the government in Takings, Commerce Clause, and other cases involving economic regulation when the Due Process Clause was not at issue. [UPDATE: Deleted a bit about Rehnquist and commercial speech, in which I seem to have exaggerated his support for such speech.]

In any event, as Blackman notes, Justice Kennedy provides a simple but elegant two sentence reply to Breyer’s violation of Bernstein’s Law: “The Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics’ Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment.”

In other words Justice Breyer, Justice Kennedy is saying, modern conservatives agree that Lochner was wrongly decided, but don’t agree that the problem with Lochner was that it invalidated economic legislation. Rather, conservatives believe that the problem was that the Court turned a mild, non-specific, primarily procedural provision of the Fourteenth Amendment into a warrant to read libertarian values into the Constitution. [A criticism, by the way, that is not historically "conservative," but originated with Progressive critics of Lochner like Learned Hand and Felix Frankfurter.] A far different scenario presents itself when the Court is applying a specifically enumerated right, like the First Amendment’s right to freedom of speech.

Not in absolute length, but relative to what they have to say. A few reasons:

(1) Many academic books are revised Ph.D. theses. When you write a Ph.D. thesis, one goal is to show your review panel that you have mastered the literature. The easy way to do so is to cite and discuss everything even tangentially related to your narrative. Even after editing for publication, many books retain lengthy discussions of other people’s work which could easily be reduced from pages to sentences, if retained at all.

(2) For books written by law professors, law reviews encourage (indeed demand) turgid literature reviews and overfootnoting, and attorneys often equate a “thorough” legal brief with a legal brief that addresses any possible argument that the judge may think of–I remember spending hours researching a sentence or two for a footnote on obscure issues that the partner wanted to address “just in case.” These habits are hard to break when you write a book.

(3) Many professors aren’t writing for their readers. They are writing to impress tenure committees, to join an intellectual conversation followed by only a handful of others, or to create the equivalent of a reference book (as opposed to a book that you expect someone to actually read cover to cover). I suppose if these are the goals and they are satisfied, the book isn’t be “too long” from the author’s perspective. Indeed, there is a risk that a short, concise, clear book won’t be seen by one’s colleagues as having sufficient gravitas.

In my own books, I try very hard to write clearly and succinctly, to eliminate or at least limit tangents that distract from the overall narrative, to use footnotes primarily for citation purposes and not to make side arguments, to condense material as much as possible, and to write for as broad an audience as is consistent with both potential interest in the topic at hand and a reasonable level of sophistication. In short, I try to write for my readers.

I’ve been very pleased that some reviewers have appreciated my efforts with regard to Rehabilitating Lochner. A new review by Joseph Tartakovsky in National Review (unfortunately behind a paywall, but available to those with access to Lexis-Nexis) states that “Bernstein writes in a plain, clear style, and moves his story along at a brisk pace. This is a slim volume (though the small type makes it appear slimmer than it actually is), yet he manages to course through a century of shifting, complicated case law.”

An anonymous Amazon reviewer–no, I have no idea who this is–writes that “This slim volume is pithy and thought provoking. . . . He traces the crippling of the doctrine of liberty of contract in chapter 6, and does a much better job in that single chapter than others have done in much longer works. He has single sentences that convey as much information as many law review articles. . . . It’s incredible you get this all in only 129 pages!”

Maybe one day I’ll write a post about Rehabilitating Lochner’s editing process. But just to give an example, I eventually boiled down what was originally many pages about Cass Sunstein’s influential understanding of Lochner into two paragraphs. I could have easily written a book twice as long, that wouldn’t have been half as “good” from the reader’s perspective.

The vast majority of academic books I’ve read should have been at least 30% shorter, though there are some very long books–like Michael Klarman’s From Jim Crow to Civil Rights–that fully justify their length.

UPDATE: I’ll always be grateful to Professor Black of Brandeis University’s History Department, who set a strict five-page limit on our papers for his class on the French Revolution. For my first paper, I managed to cover the history of Jews during the French Revolution in those five pages, editing down 20+ pages of draft material into a paper Black told me was well-received by the one of the leading historian of French Jews (unbeknownst to me, his wife!). I learned from this experience that often pages could be cut down to paragraphs, paragraphs to sentences, and sentences to words, without the reader losing any essential information.

In comments to some of my recent posts, some commenters have suggested that few people nowadays get especially worked up about Lochner v. New York. Rather, it’s Bush v. Gore, or Korematsu, or Citizens United, that raises hackles, with Lochner seen perhaps as a quaint anachronism with little modern relevance. I agree that over time, and thanks in part to revisionist scholarship (including my own), Lochner’s salience to public constitutional debate has declined somewhat since its heyday in approximately the late 1980s–not coincidentally, the time period when I went to law school and became fascinated by the (negative) fascination with Lochner.

But that hardly means that Lochnerm has lost all, or even most of it potency. One could cite Supreme Court opinions for this proposition, but I instead call as a witness a former Senator from Illinois and constitutional law professor, an obscure fellow named Barack Obama. Here’s Obama in June 2005, opposing the nomination of Janice Rogers Brown to the D.C. Circuit. Dubious or inaccurate historical statements reflecting common misuses of Lochner as a historical symbol are highlighted in bold, and are annotated below:

For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court. In the Lochner case, and in a whole series of cases prior to Lochner being overturned, the Supreme Court consistently overturned basic measures[1] like minimum wage laws, child labor safety laws, and rights to organize, deeming those laws as somehow violating a constitutional right to private property. The basic argument in Lochner was you can’t regulate the free market because it is going to constrain people’s use of their private property[3]. Keep in mind that that same judicial philosophy was the underpinning of Dred Scott[4], the ruling that overturned the Missouri Compromise and said that it was unconstitutional to forbid slavery from being imported into the free States.

That same judicial philosophy essentially stopped every effort [5] by Franklin Delano Roosevelt to overcome the enormous distress and suffering that occurred during the Great Depression. It was ultimately overturned because Justices, such as Oliver Wendell Holmes[6], realized that if Supreme Court Justices can overturn any economic regulation — Social Security[7], minimum wage, basic zoning laws[8], and so forth — then they would be usurping the rights of a democratically constituted legislature[9]. Suddenly they would be elevated to the point where they were in charge as opposed to democracy being in charge.

[1] The “Lochner era” Court upheld the vast majority of “police power” measures that came before it, and many more were so obviously constitutional that they weren’t litigated. Even in Lochner itself, none of the many regulatory provisions of New York’s Bakeshop Act were even litigated, except for the ten-hour provision that made it to the Supreme Court.

[2] The Supreme Court stated repeatedly, including in Lochner, that legitimate safety laws were constitutional under the police power. And the Court never invalidated a “child labor safety law.” If Obama meant to say “laws regulating or banning child labor,” such state laws were upheld 9-0 under the Due Process Clause (the subject of Lochner), and invalidated 5-4 as beyond federal power under the Commerce Clause. In mixing together federalism cases and liberty of contract cases into one “Lochner era”, Obama is following mainstream, but anachronistic, constitutional law discourse.

[3] No, it wasn’t. First, it was about “liberty of contract,” not property rights. Second, the Court recognized all sorts of valid restrictions on both contracting and the use of property.

[4] Scott did state that it would violate the property rights of slaveowners to ban slavery in federal territories. But that was a short sideshow to the main holding that persons of African descent had no rights under the Constitution. Moreover, as part of the “vested rights” doctrine, this was not an endorsement of laissez-faire more generally. And finally, abolitionists used similar reasoning, relying on the liberty and property interests of the slaves themselves, to argue that any federal recognition of slavery was unconstitutional.

[5] The Supreme Court did invalidate some major pieces of federal New Deal legislation, though under doctrines that had nothing to do with Lochner, per se. And the “essentially stopped every effort” is a gross exaggeration.

[6] Justice Holmes retired in 1930.

[7] The Social Security Act was upheld 7-2, and was not challenged on grounds that doctrinally had anything to do with Lochner, though again, modern constitutional law discourse tends to lump all pre-New Deal doctrines limiting government power, state or federal, together.

[8] The “Lochner era” Supreme Court upheld “basic zoning laws” every time they arose, most famously in Euclid v. Amber Realty, with one exception: the Court unanimously invalidated zoning by race in 1917, to the howls of contemporary Progressives, and reiterated that holding in 1927 and 1930.

[9] In cases like Carolene Products (famous footnote 4), the Supreme Court rejected the Holmesian position that it should simply defer to democratic majorities and instead adopted a stance of deference for economic legislation, and “activism” for important civil liberties and laws that discriminated against minorities. In doing so, the Court favorably cited and retained (but reinterpreted) cases arose out of the Lochner tradition, such as Meyer v. Nebraska.

The point is not to pick on Obama, who is for the most part just repeating conventional wisdom, and who in this speech was in any event acting as a politician, not a law professor. Rather, it’s to point out not just Lochner’s continuing salience, but the fact that this salience is often based on a very tenuous understanding of history.

The review is by Instapundit’s Glenn Reynolds, and it starts like this:

With the possible exception of Plessy v. Ferguson, which gave us the racial doctrine of “separate but equal,” the case of Lochner v. New York stands as the most reviled decision of the post–Civil War Supreme Court. As every law student knows, Lochner was a case in which a court packed with business sympathizers stuck it to the little guy in a shameless display of judicial activism.

But, like a surprisingly large number of the things everyone knows, this conventional wisdom is almost entirely wrong, and David E. Bernstein’s new book, Rehabilitating Lochner, makes clear just how wrong it is—and how and why the Lochner narrative became established in the legal academy. In fact, writes Bernstein, “The Lochner line of cases pioneered the protection of the right of women to compete with men for employment free from sex-based regulations, the right of African Americans to exercise liberty and property rights free from Jim Crow legislation, and civil liberties against the states ranging from freedom of expression to the right to choose a private school education for one’s children.”

Unfortunately, the rest of the piece, which continues in a very positive vein, is behind a paywall, but perhaps Glenn will provide a link at some point.

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.

VC readers in the DC area are invited to a book form on Rehabilitating Lochner at the Cato Institute on Monday at 4:00 p.m. Here are the details from the Cato website:

Speakers: David Bernstein, George Mason University School of Law; with comments by Louis Michael Seidman, Georgetown University Law Center; and Gregory E. Maggs, George Washington University School of Law; moderated by Roger Pilon, Cato Institute.

The Cato Institute
1000 Massachusetts Avenue, NW
Washington, DC 20001

No Supreme Court decision concerning economic liberty has been more emblematic of the alleged errors of the “old,” pre-New Deal Court than Lochner v. New York, decided in 1905. Upholding contractual freedom against a New York statute that limited the hours that bakers might work, the decision has been reviled by both liberals and conservatives as an egregious example of judicial malfeasance — cited today most often for the prescient dissent of the sainted Justice Oliver Wendell Holmes. Yet the story of Lochner is not over. In a new book that examines the history and background of the case, David Bernstein argues that the decision has been widely misunderstood and unfairly maligned, that it was well grounded in precedent, and that subsequent battles over segregation laws, sex discrimination, civil liberties, and more owe much to the limited-government ideas of Lochner’s proponents. Please join us for what is bound to be a lively discussion about this important new book.

If you can’t make it in person, you can watch a live video feed at this link.

When I’ve given speeches at law school Federalist Society events, I’ve gotten much more favorable comments from liberal commenters than from conservative commenters. It will be interesting to see if this holds true with Seidman (liberals) and Maggs (conservative).

on SSRN. Here is the abstract:

This paper is the Introduction to David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011), which will be officially released in May [but is already shipping from Amazon]. The Introduction makes the following points, which are elaborated upon and defended in the body of the book.

The standard account of the rise, fall, and influence of the liberty of contract doctrine is inaccurate, unfair, and anachronistic. Lochner has been treated as a unique example of constitutional pathology to serve the felt rhetorical needs of advocates for various theories of constitutional law, not because the decision itself was so extraordinary, its consequences so bad, or its anti-statist presumptions so clearly expelled from modern constitutional law.

The liberty of contract doctrine was grounded in precedent and the venerable natural rights tradition.

Progressive jurists who opposed liberty of contract had an extreme pro-government ideology, and typically opposed any robust constitutional protection of individual or minority rights.

The Supreme Court’s liberty of contract advocates, by contrast, were sufficiently committed to the notion of inherent limits on government power and a limited police power that they voted for liberal results across a wide range of individual and civil rights cases.

The Lochner line of cases pioneered the protection of the right of women to compete with men for employment free from sex-based regulations; the right of African Americans to exercise liberty and property rights free from Jim Crow legislation; and civil liberties against the states ranging from freedom of expression to the right to choose a private school education for one’s children.

Many post-New Deal liberal developments in Fourteenth Amendment jurisprudence can trace their origins to Lochner and its progeny. More generally, modern Fourteenth Amendment jurisprudence owes at least as much to the liberty of contract proponents’ libertarian values as to its pro-regulation Progressive opponents.

The history of the liberty of contract doctrine should be assessed more objectively and in line with modern sensibilities, and Lochner should be removed from the anti-canon and treated like a normal, albeit controversial, case.

Rehabilitating Lochner, Conclusion:

The longstanding myth of a wildly activist, reactionary Supreme Court imposing a grossly unpopular laissez-faire ideology on the American people on behalf of large corporate interests—with little concern for precedent, constitutional text, or individual or minority rights—is far removed from historical reality.

The academics who invented the prevalent mythology likely sought, consciously or not, to justify their preferred political outcomes. They promoted the notion that the liberty of contract cases had no origins in American tradition or in American constitutional thought, and were instead simply stalking horses for the economic elite’s interests. This allowed advocates of the revolutionary New Deal and post-New Deal changes in constitutional interpretation to lump all the decisions of the pre-New Deal Supreme Court together.

Scores of books and articles state or imply that there is no significant difference between the “Lochner era” commerce clause cases, due process cases, non-delegation cases, and so on. Rather, they purportedly were all different manifestations of the Court’s reactionary “laissez-faire” jurisprudence. Conflating these doctrines allowed legal scholars—and, for that matter, Supreme Court Justices—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.

Consider that quote in light of the following from an amicus brief filed by Professors Walter Dellinger and H. Jefferson Powell in the Eleventh Circuit on behalf of Harry Reid and Nancy Pelosi. The brief urges reversal of the district court’s opinion invalidating Obamacare’s individual mandate as beyond Congress’s Commerce Clause authority:

Appellees’ attempt to divide economic behavior into “activities” that Congress can regulate and ‘inactivity” that it cannot is of course reminiscent of the theory of economic substantive due process associated with the famous decision in Lochner v. United States, 198 U.S. 45 (1905).

To which I can only respond, “huh”? I can’t think of any “economic substantive due process” case that even hinted that it relied on an activity/inactivity distinction. Nor can I think of any other way the activity/inactivity distinction is reminiscent of the Lochner line of cases, unless one accepts the bogus post-New Deal conflation of all doctrines that historically limited government regulatory power. One might just as well say that an Ex Post Facto Clause argument is reminiscent of Roe v. Wade.

The phrase “of course” does not save the brief’s Lochner argument from being a complete non sequitor, a transparent attempt to try to tie the lower court’s Commerce Clause ruling to Lochner, simply because Lochner is disreputable, and, as noted above, to try to “elide debate over the meaning” of the Commerce Clause.

We need a Godwin’s Law for constitutional litigation: the first side to raise Lochner, especially in a case not involving the Due Process Clause, automatically loses.

Irony alert: Writing in the Cato Supreme Court Review in 2004, Dellinger stated, “The disparagement by some liberal scholars and jurists of the constitutional protection of economic rights weakens the constitutional foundations of personal liberty.”

(1) Amazon is shipping the book, though its official publication date is more than a month away. Those who preordered from Amazon have already received it.

(2) Larry Solum’s Legal Theory Bookworm recommends the book.

(3) Tim Sandefur was one of the pre-orderers, and he calls Rehabilitating Lochner “the first serious effort to put the case in its legal and historical context,” and “a fair and carefully researched description of the history of the case, its consequences, and mostly of the bizarre relationship that Progressives, both past and present, have to the case.” He concludes that “Bernstein’s book is an important contribution to understanding not only the Lochner decision itself, but the political and jurisprudential storms that have surrounded it for a century. I recommend it highly.”

Tim is the author of The Right to Earn a Living, a worthy successor to Bernard Siegan’s classic Economic Liberties and the Constitution.

(4) You can find a video of me lecturing about Rehabilitating Lochner to an audience of libertarian undergrads here.

(5) If you scroll down this page, you will find a podcast of me discussing the book at the University of Chicago Law School, with comments by Professor Gerald Rosenberg.

(6) Some VC readers have inquired about a Kindle edition. There will be one, but I’v heard that Amazon is known for dragging its feet on bringing these out for books that aren’t best-sellers, so it may be a while.

UPDATE: Glenn Reynolds of Instapundit fame writes: “David Bernstein’s Rehabilitating Lochner is now shipping. I’m writing a review of it right now, and it’s excellent; Bernstein makes clear that Lochner was pretty much the opposite of how it has been portrayed in the progressive narrative.”

Attorney Ryan Williams recently published an article in the Yale Law Journal called “The One and Only Substantive Due Process Clause.” It’s pathbreaking.

Essentially, Williams argues that in 1791, when the Fifth Amendment’s Due Process Clause was enacted, “due process of law” had only a procedural meaning, and only guaranteed proper judicial procedures. By 1868, however, when the Fourteenth Amendment’s Due Process Clause was enacted it was widely accepted that “due process of law” also had a substantive meaning, and prohibited certain types of legislation.

That, in itself, is not entirely new. Indeed, based on my own reading of the previously existing sources, it’s more or less what I say in Chapter 1 of Rehabilitating Lochner. What’s new is the depth of the research Williams has undertaken. Previously, attention had focused mainly on a few major state court cases, along with Dred Scott v. Sandford. Williams goes well beyond the usual suspects, which allows him to conclude that by 1868, “a recognizable form of substantive due process had been embraced by courts in at least twenty of the thirty-seven then-existing states as well as by the United States Supreme Court and the authors of the leading treatises on constitutional law.” (Few state courts, meanwhile, had rejected “substantive due process”, as opposed to simply not ruling on the issue one way or another).

Williams’s article poses a challenge to the minority of scholars who argue that the original meaning of the Fifth Amendment’s Due Process Clause was “substantive,” and even more so to the much larger group of scholars who claim that the substantive interpretation of the Fourteenth Amendment’s Due Process Clause was simply invented by activist judges in the Gilded age and “Lochner era.” Indeed, Williams’s research suggests that a sincere originalist may be required to accept a substantive interpretation of component to “due process of law.”

Aside: Kudos to the Yale Law Journal, which I’ve noticed has published some very interesting scholarship this year which has not emanating from the standard sources, i.e., well-known law professors at top 15 or so schools.

From the U. Va. Fed-Soc blog on the student conference that took place this past weekend:

Professor [Jeffrey] Rosen responded with a call to resist Professor Barnett’s libertarian interpretive approach and look to the traditional conservative model of judicial deference to the political process…. Professor Rosen proposed a framework of three divergent “conservative” approaches to constitutional interpretation:

(1) the traditional view of judicial restraint and deference – Justices Jackson, Frankfurter, Holmes, and Scalia were discussed as models of this approach. Judge J. Harvie Wilkinson III, the moderator of our second panel, was also discussed as a model of this interpretative philosophy.”

Rosen is undoubtedly correct that conservatives such as Scalia and Wilkinson have adopted and advocated views regarding the role of the judiciary previously championed by the likes of Frankfurter and Holmes.

The oddity, however, is that Holmes was the favorite Justice of early 20th century Progressives, and was despised by contemporary conservatives. And Frankfurter, of course, was a leading Progressive legal activist and academic, and never abandoned his basic Progressive (i.e., statist) presumptions as a Justice.

Consider Holmes’s Lochner dissent. Progressive historian Charles Beard effused that Holmes’ opinion was “a flash of lightning [in] the dark heavens of juridicial logic.” Progressive jurist Benjamin Cardozo asserted that Justice Holmes’s dissent was “the beginning of an era…. [I]t has become the voice of a new dispensation, which has written itself into law.” In 1915, the Progressive New Republic praised Holmes’ “classic” Lochner dissent.

By contrast, conservative George Wickersham, writing in the Harvard Law Review in 1915, argued that if Holmes’s view in Lochner became the rule, “constitutional government, in the sense in which it has been understood for a century and a half, will be at an end, and the doctrine of the police power will have been swallowed up in the capacious maw of unrestrained democracy.” Libertarian-conservative H.L. Mencken complained that if Holmes’s judicial opinions “were accepted literally, there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.”

It wasn’t until after World War II that the few remaining influential conservative commentators on constitutional law abandoned traditional conservative limited-government and natural rights constitutionalism, and instead focused on containing the Warren Court’s emerging judicial liberalism. In the process of doing so, they adopted the Progressives’ majoritarian critique of the Supreme Court’s pre-New Deal liberty of contract jurisprudence, joining the remaining old-school Progressives like Learned Hand, Herbert Wechsler, and Frankfurter.

A telling example is a short 1952 memo written by a young conservative Supreme Court clerk (and future Chief Justice of the United States), William Rehnquist, to Justice Robert Jackson. Rehnquist argued that the Court should rule against the plaintiffs in the pending school segregation cases, lest it write its own views into the Constitution. He accused the pre-New Deal Court of ignoring Justice Holmes’s wise admonition “that the Fourteenth Amendment did not enact Herbert Spence’s [sic] Social Statics” and instead allowing “business interests” to “dominate the Court.” Rehnquist wrote that if the Court invalidated public school segregation laws, “it differs from the McReynolds court only in the kinds of litigants it favors and the kinds of special claims it protects.” (Holmes, not coincidentally, was by far the Justice least willing to question segregation laws in his heyday.)

In short, until folks like Richard Epstein and Randy Barnett upset the apple cart, modern constitutional debate, especially with regard to the Fourteenth Amendment, was a battle between New Progressive ideology advocated by modern liberals, and Old Progressive ideology advocated by modern conservatives.

There is nothing actually conservative, however, about Old Progressive ideology, and it was only adopted by conservatives as an attempt to stop or at least slow the march of New Progressive ideology. Now that conservatives are no longer simply playing defense, there is no good reason, politically or ideologically, for them to continue to defend an ideology invented and promoted by their historical Progressive enemies: Roscoe Pound [in his early years], Holmes, Frankfurter, Brandeis, Corwin, etc.

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.