Archive | Rehabilitating Lochner

Claremont Review of Books Discussion of Lochner

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. [...]

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Obama’s Progressive Mythology

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 [...]

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Myths of the Brandeis Brief

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. [...]

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Dialogue with Victoria Nourse on Lochner

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. [...]

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Lochner and Constitutional Continuity

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).

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Reason Reviews Rehabilitating Lochner

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 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. [...]

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Liberal Reactions to George Will’s Lochner Column

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 [...]

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George Will on Rehabilitating Lochner

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 [...]

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Complements to Rehabilitating Lochner

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, [...]

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Lochner and Child Labor Laws

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 [...]

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Gerber on Bernstein

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 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.” [...]

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Breyer’s Dissent in Sorrell and Carolene Products

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 [...]

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Breyer Violates Godwin’s Bernstein’s Law

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

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Most Academic Books are Too Long

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 [...]

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