The Volokh Conspiracy

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.

[UPDATE: Not worth responding to a certain obnoxious blogger, but, for those who are interested, feel free to check out the praise for my book from notorious right-wingers (NOT!) Jack Balkin, William Nelson, Mark Tushnet, and G. Edward White.]

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.
In short, supporters of the post-New Deal constitutional order—lawyers, historians, and political scientists—promoted the traditional Lochner story to shore up that order against residual, or future, opposition.

Commentary on today’s Obamacare decision:

Frank Pasquale, Concurring Opinions: “If the Supreme Court affirms it, we are well on our way to a new Lochner era.”

Nick Baumann, Mother Jones: “Drastically limiting the scope of the Constitution’s commerce clause (as Hudson would do) is the slippery slope to the libertarian paradise. Almost every meaningful action the federal government takes with regard to the economy rests on the commerce clause. In the past, the Supreme Court has read that clause to be incredibly constrained. During the Lochner era (1897-1937), the court routinely struck down federal laws regulating working hours, child labor, and minimum wages as inappropriate interventions in individuals’ ‘right of contract.’” [Editor: By the way, just about every word of the last sentence is false.]

H/T Josh Blackman

UPDATE: A Daily Kos diarist manages to repeat and add to Baumann’s errors:

As Mother Jones points out, this sort of libertarianism run amok has cropped up in the past, during the so-called Lochner era, when the conservative Supreme Court would routinely rule against FDR’s New Deal legislation on minimum wage, working hours, and child labor as a horrific violation of the sacrosanct “right of contract”. For as we all know, twelve-year old children should have an inviolable right to work 80 hours a week in the coal mines!

Amazon has published the blurbs for my forthcoming “Rehabilitating Lochner: Defending Individual Rights against Progressive Reform.” Blurbs obviously are subject to selection bias, but I still think these are pretty nice.

“An exhilarating book full of interesting new perspectives. Rehabilitating Lochner will change the way people think about the transition from the late nineteenth century to the modern New Deal and Civil Rights regime. It does what good revisionist history should do: see what is familiar in new ways.”—Jack M. Balkin, Yale Law School

“David Bernstein drives home powerfully and convincingly the fact that the supporters of Lochner were the biggest proponents of protecting the personal rights of African Americans, Roman Catholics, and other minorities. Rehabilitating Lochner will have a profound impact on constitutional law scholarship.”—William E. Nelson, New York University

“A terrific work of historical revisionism, Rehabilitating Lochner brings out some attractive resonances in libertarian themes associated with the widely disparaged constitutional jurisprudence of the period from 1905 to 1937, and some discordant undertones to the Progressive themes sounded during that period. It should induce some changes in the way many students and scholars read the cases from that period.”—Mark Tushnet, Harvard Law School

Kosmos Online, a project of the Institute for Humane Studies, interviewed me about my forthcoming Rehabilitating Lochner. If you’d like a preview of the book, or are just curious what I sound like, you can find the interview here.

And speaking of Rehabilitating Lochner, Amazon has reduced the preorder price from $40 to $30.

to endorse what we would now call a “substantive” interpretation of the Due Process Clause was not, as is commonly held, Dred Scott v. Sanford, but rather Bloomer v. McQuewan several years earlier.

Here’s the key language:

it can hardly be maintained that Congress could lawfully deprive a citizen of the use of his property after he had purchased the absolute and unlimited right from the inventor, and when that property was no longer held under the protection and control of the general government, but under the protection of the state, and on that account subject to state taxation.

The 5th Amendment to the Constitution of the United States declares that no person shall be deprived of life, liberty, or property without due process of law.

The right to construct and use these planing machines had been purchased and paid for without any limitation as to the time for which they were to be used. They were the property of the respondents. Their only value consists in their use. And a special act of Congress, passed afterwards, depriving the appellees of the right to use them certainly could not be regarded as due process of law.

Note the Court’s reliance on due process, even though the more specific language of the Takings Clause was available to it.

The Court’s statement must be counted as dicta, however, because it went on to state that “we forbear to pursue this inquiry, because we are of opinion that this special act of Congress does not and was not intended to interfere with rights of property before acquired.” Nevertheless, the assertion that the origins of substantive due process in the Supreme Court lie solely in Dred Scott, and somehow SDP must have derived from pro-slavery sentiment, is incorrect. (Not to mention the fact that abolitionists were at least as likely as pro-slavery forces to appeal to “substantive due process”, in the former case to support the liberty rights of slaves, especially slaves, like Scott, taken into federal territory).

UPDATE: Arguably, the due process point in Scott was also dicta, because the Court held that Scott, as a person of African descent, had no standing to sue in federal court. And I should have noted that this post was inspired by Tim Sandefur’s post below, discussing myths regarding “substantive due process”–itself an anachronism because no one in the 1850s, or indeed until the 1930s, would have been familiar with the phrase.

I’ll be speaking at Yale Law School for the Federalist Society tomorrow night at 6:10. The topic is my forthcoming book, Rehabilitating Lochner. Jack Balkin of Balkinization (and, incidentally, the Knight Professor of Constitutional Law and the First Amendment at Yale) will provide comments. It should be a lively evening.

I’m not one to generally praise law reviews, but the latest issue of the George Washington Law Review contains lots of interesting stuff.

I wanted to call particular attention to G. Edward White’s review of Phil Hamburger’s Law and Judicial Duty. White, one of my favorite legal historians, treats readers to an excellent discussion of Hamburger’s fine book, but he also locates the book in a growing literature of works that counter the standard Progressive interpretations of legal history. The most prominent examples of the corpus of counter-Progressive legal history are works of Lochner revisionism, but the Progressive understanding, once ubiquitous in American law schools and history departments, is under much broader assault. White concludes: “Historiographic orthodoxies are typically of very long duration. It has taken nearly a century for Progressive orthodoxy to crumble. But it is surely crumbling—perhaps on the verge of disintegration—in American legal and constitutional history.”

Added bonus: White states in a footnote that “the best general survey of the literature of Lochner revisionism is David E. Bernstein, Rehabilitating Lochner (forthcoming 2011).”

And speaking of Rehabilitating Lochner, the book is now available for preorder at Amazon.

UPDATE: Mark DeGirolami has an interesting (and critical) take on White’s essay.

Like Orin, I recommend Vermuele’s interesting and thoughtful review essay in the New Republic.

However, I want to take issue with a couple of Vermuele’s historical claims.

(1) The troika do not seriously address this possibility, except to remark that the possibility of “majoritarian abuse” may sometimes require a “robust judicial role.” But we lack a reliable technology for identifying abuses, about which lawyers have no privileged insight, and so some argument is needed to show that adding constitutional review by judges will produce fewer abuses overall. That claim is not obvious, because the judges might themselves create new abuses under the guise of constitutional law, or might prevent legislatures from remedying abuses by local majorities, or by the rich; the judges of an earlier day thought it a patent majoritarian abuse to set minimum wages, or to ban child labor.

I’m not aware of any court that held or implied that it was a “patent majoritarian abuse” to “ban child labor.” Every court decision that I’m aware of held that child labor bans were well within the states’ police power. The U.S. Supreme Court, in its only decision on the issue, held 9-0 that a state may regulate child labor.

The Supreme Court did hold that it was beyond the power of the federal government to ban child labor. This was not, however, an issue of “patent majoritarian abuse” in the sense that
Vermuele seems to be discussing, but the limited authority given in the Constitution to the federal government to regulate internal state affairs. Vermeule seems to agree with David Strauss “that the constitutional text is most forcefully and successfully invoked to settle not controversial questions of rights, but matters of governmental structure that are in some sense arbitrary, such as the minimum age for the presidency.” The question of federal authority over child labor was not a question of “rights,” but of the nation’s federalist structure. In some sense, it’s arbitrary that the federal government is given the power to regulate only “interstate commerce,” not domestic state labor conditions, but that’s what the Constitution says.

(2) Common-law constitutionalism can stumble into a bad equilibrium, in which accumulating precedents converge to an appalling rule. (An example is the gradual development of the law of “liberty of contract” before the New Deal, which the judges invoked to kill off welfare-improving social regulation.)

I’m struggling to come up with an example of a law invalidated by the Supreme Court under the liberty of contract doctrine that was likely “welfare-improving.” Housing segregation? No. Minimum wage laws? The welfare-improving nature of such laws is controversial at best, but in any event the Court only dealt with discriminatory laws that only applied to women, laws that few would defend today. A law establishing a state monopoly on the provision of ice? No. A law banning private schools? No. A law forbidding the existence of for-profit employment agencies? No. A law requiring all labor disputes to be settled by a state-imposed arbitration panel? No. A law requiring that bread meet a maximum weight requirement? No. A bakers’ hours law meant to aid established, unionized bakeries at the expense of their competitors? No. A law banning Chinese merchants in the Phillipines from writing in Chinese? No. The most plausible candidate is laws banning so-called yellow dog contracts (banning the signator from joining a union), but the Supreme Court reversed itself on that issue in 1930.

And even if one could come up with some examples, I think it’s pretty clear that overall the liberty of contract doctrine, as applied by the Supreme Court, had positive social welfare effects. The problem from a social welfare perspective, in fact, is that the Court was far too deferential to state regulation, upholding wasteful and inefficient laws ranging from laws banning the sale of margarine to featherbedding laws requiring “full crews” on railroads.

and his call for a new progressive constitutionalism, modeled on the old, New Deal-style progressive constitutionalism. I agree wholeheartedly with Meese and Oman. One additional point: Feldman, like other modern liberal writers who yearn for the Progressive days of yore, whitewashes Progressivism, so that it consisted solely of public-spirited regulation of corporations and the labor market. Meese and Oman note that the regulations in question weren’t always so public-spirited, but I’d add that Progressive regulation also included alcohol prohibition, coercive eugenics, housing segregation laws, bans on private schools, and other measures that people today across the political spectrum would agree were gross violations of individual rights. Resistance to these measures came primarily from the libertarian constitutionalists Feldman decries, not from his Progressive heroes. With that context, and in stark contrast to the way Feldman portrays things, the idea that property rights and limited government were a bulwark of individual liberty doesn’t seem quite so bizarre.

Coincidentally, just before Feldman’s piece appeared in the Times, I decided on the full title for my forthcoming book: “Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform.”

UPDATE: I don’t want to distract readers from looking at Meese and Oman’s excellent piece by focusing too much on a side issue, but let me elaborate on my point a bit more. Feldman intentionally conflates old-style Progressives with modern liberals, referring, for example, to the former as “constitutional liberals.” In fact, modern constitutional liberalism descends not solely from constitutional Progressivism, as Feldman seems to think, but also from what he calls the constitutional conservatives’ “libertarian reading of the Constitution, one that emphasized inalienable rights.”

My point is not that the Progressives were often illiberal, so modern liberals are also illiberal. Rather, because Progressives were often illiberal, it’s extremely problematic to call for modern liberal constitutionalists to return to their Progressive roots, unless one’s goal is to make “liberalism” illiberal–which is not Feldman’s goal.

Feldman, for example, writes, “The fundamental difference, then, between constitutional liberals [he means Progressives] and constitutional conservatives was on the question of whom they feared most,” government or big business. The problem with putting it this way is that as a rule, constitutional Progressives didn’t fear government at all; rather, they welcomed its growth, even when it was regulating matters that had nothing to do with big business.

Similarly, Feldman writes, “little by little, the [post-New Deal] liberal majority began to realize that it had the capacity to protect minority rights and to expand individual freedom,” as if their Progressive predecessors were unaware of this power, as opposed to indifferent or hostile to it.

In his Stop the Beach opinion, Justice Scalia writes, “The first problem with using Substantive Due Process to do the work of the Takings Clause is that we have held it cannot be done.”

But hold on! The Takings Clause does not apply to the states. The Fourteenth Amendment’s Due Process Clause applies to the states. The Supreme Court has held that the rights protected by the Clause include the rights delineated by the Fifth Amendment via “incorporation.”

You can see where this is going. Enforcing the Fifth Amendment’s Takings Clause against the states via the Due Process Clause is literally an exercise in protecting a substantive right through that clause, and therefore is “substantive due process.”

I understand, of course, that in modern constitutional discourse we distinguish between “substantive due process” and the “incorporation doctrine.” But I think this distinction is incoherent, an illogical historical artifact.

Basically, the post-New Deal Justices who wanted to protect some or all of the rights contained in the Bill of Rights against the states needed to blunt criticism that they were emulating their discredited pre-New Deal predecessors. The pre-New Deal Justices had also protected some of those rights–freedom of speech speech, Takings, etc.–via the Due Process Clause, often with no reference to the Bill of Rights. So the post-New Deal Justices and their defenders asserted that the liberty of contract cases and other unenumerated rights cases involved illegitimate “substantive due process,” while cases “incorporating” the rights found in the Bill of Rights against the states did not.

Grounding the Due Process Clause’s substantive protections in the Bill of Rights and avoiding unenumerated rights may constrain judicial activism, but it’s still a quite literal exercise in “substantive due process.” And given precedent going back to the 1870s implicitly acknowledging that the rights protected by the Due Process are not constrained by the Bill of Rights but apply to all arbitrary deprivations of important rights, and precedents from the 1880s holding that the criminal procedure protections of the Bill or Rights are unprotected by the Fourteenth Amendment, it’s not clear why one kind of substantive due process is inherently more legitimate than the other, or why conservatives should privilege nonsense made up by the liberal Vinson and Warren Courts.

In today’s Stop the Beach opinion, Justice Scalia (joined by the other three conservatives) criticizes Justice Kennedy for arguing that what Scalia consider “judicial takings” should instead be handled as violation of the Due Process Clause:

The second problem is that we have held for many years (logically or not) that the “liberties” protected by Substantive Due Process do not include economic liberties. See, e.g., Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 536 (1949). [EDITOR: But cf. Schware v. Board of Examiners, 353 U. S. 232 (1957) h/t Tim Sandefur]

The “logically or not” part gets me; Justice Scalia is not a lower court judge. If he think it’s not logical to strictly segregate economic and non-economic rights, he has the power to do something about it.

Imagine, instead, Justice Kennedy writing this sentence in an abortion case, in response to Scalia:

The second problem is that we have held for many years (logically or not) that the “liberties” protected by Substantive Due Process include the right to have an abortion.

Roe has been around for thirty-seven years now, and it’s high time the conservative Justices stop pretending that a decades-old opinion, on which there is huge cultural reliance (as sexual mores have changed in part to reflect the availability of abortion) is somehow less “precedential” than equally bad opinions from the 1930s, 40s, and 50s.

Of course, Scalia does have an answer to this analogy–we should avoid any decision reminiscent of the dreaded “Lochner era”: “Justice Kennedy’s language … propels us back to what is referred to (usually deprecatingly) as “the Lochner era.”

And here’s my response to Scalia, from the second to last paragraph of my forthcoming “Rehabilitating Lochner:”

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 the Justices (and others) 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.

Thanks to Josh Blackman for the tip.

Stumbled across this at goodreads.com. I don’t know who wrote it; only that it’s one of the approximately 50 people who read the book in manuscript form, including colloquium participants at NYU and Georgetown. It’s a nice review, and the good news is that the book has undergone additional revisions/editing since it the review was written, so I expect the reviewer would like the final version even more:

Read in manuscript. This is coming out late this year, I think, though there isn’t a pub date yet [actually, early next year]. Regardless, I think it’s going to make a splash when it does come out, at least within the specialized pond of legal academia and intellectual history.

This book gathers and carries forward a lot of the counter-historical work done to try and roll back a lot of the Lochner v. New York hate we’ve all been spoon-fed in law school. He does a great job with the history of the case and the intellectual tides of the time, with the general goal of arguing that the liberty of contract crowd wasn’t just out for big business over the little guy, but was actually drawing on some long-standing natural law principles. The book then does a whirlwind through women’s rights, the early segregation cases, the early civil liberties stuff like Pierce v. Society of Sisters and forward to reproductive rights and the vilification of substantive due process. He connects up Lochner with a lot of the later civil liberties work in order to literally reverse how most of us presume the line actually runs — from the Progressives, the anti-lochnerites.

It’s a cracking read, as these things go, hampered in places by its revisionist project – it spends too much time on what it’s arguing against, rather than in straight history, and is thus less convincing in places. Still, totally worth it if you’re, you know, one of the slice of people who have any idea what I’ve just been talking about, and the tinier slice who actually give a damn.

I recently sent the final version of my “Rehabilitating Lochner” manuscript to University of Chicago Press for proofreading, typesetting and so forth. Yay! The book should be out in Spring 2011.

At some point, my editor asked me for my conception of the cover. I chose something unrealistic, but that I really liked. And I hired an artist to do a mock up based on my idea, to use for my own p.r. for the book, if not the cover.

Historical notes: Peckham wrote the majority opinion in Lochner, Holmes wrote a famous dissent. The guy on the right in the Lochner bakery apron is Joseph Lochner, based on photos of him. The audience members are dressed in “authentic” bakers’ outfits of the day, based on a photo of Lochner’s employees.

My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for three decades in the early 20th century. He was also a founder of the Ku Klux Klan in Florida, and every year at UT he gave a formal speech extolling the Klan.

Most of Russell’s paper concentrates on Simkins’ career at UT, as well as the 1954 decision (five weeks after Brown v. Board was announced) to name the dormitory after him. I was curious to learn more about Simkins had actually done with the Florida Klan, so I read Michael Newtown’s book The Invisible Empire: The Ku Klux Klan in Florida.

Continue reading ‘The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school’ »

Many of the most important cases in American constitutional law have not involved true cases or controversies. Instead, they involved individuals or organizations who intentionally set up a test case to challenge a law they disliked. Prominent examples include Plessy v. Ferguson and Griswold v. Connecticut.

I think we can add Lochner v. New York to that list. Joseph Lochner was accused in early 1902 of allowing baker Aman (sometimes referred to in newspaper reports as Amand or Armand) Schmitter to work more than ten hours in one day in Lochner’s bakery. Various sources, including one as early as 1905, state that Schmitter stayed late voluntarily to learn cake-making, but I’ve been unable to discover the source of this detail.

It’s obvious that Lochner eventually became a test case. Lochner presented no evidence to challenge the prosecution, and instead allowed himself to be convicted so he could appeal. And it’s no secret at this point that Lochner’s attorneys were paid by the New York Master Bakers Association, which had resolved to challenged the hours law.

But did the case start out as a test case, or just develop into one? Contrary to what I have previously written, when I surmised that the complaint against Lochner was initiated at the behest of the bakers’ union, the evidence suggests the former.

In particular, it turns out that Schmitter himself swore out an affidavit against Lochner, and it’s highly unlikely that Schmitter was an agent of the bakers’ union. I’ve discovered a newspaper report from 1895 stating that the union tried to fine Lochner because he allowed Schmitter to live in his home, contrary to union rules that Lochner had agreed to obey. Schmitter begged the union to drop the complaint, explaining that he had nowhere else to live.

I’ve discovered another newspaper report from 1898, stating that Lochner and Schmitter, who now owned his own bakery, traveled together to New York City. Finally, Schmitter’s 1941 obituary noted his long employment in Lochner’s bakery.

So here we have an individual who lived in Lochner’s home, who resented the union for interfering in his relationship with Lochner, who was friendly enough with Lochner to travel with him, who was a former bakery owner himself, and whose family was proud enough of his service as a Lochner employee to have it mentioned in his obituary. This doesn’t sound like a person who would have tried to get Lochner criminally prosecuted under a union-sponsored law, especially not for teaching him cake-making after hours!

Add that to the fact that Lochner was active in both the Utica Master Bakers Association, and the state association, and the evidence strongly suggests that Lochner and Schmitter had cooked up the latter’s complaint as a mechanism to challenge the hours law.

Since the incorporation doctrine is in the news today, I thought I’d share a relevant excerpt from Rehabilitating Lochner (forthcoming, U. Chicago Press, Spring 2011):

The Supreme Court … gradually applied most, but not all, of the Bill of Rights to the states, on a case-by-case basis. To blunt criticism that they were emulating their discredited pre-New Deal predecessors, the Justices and their defenders asserted that the liberty of contract cases involved illegitimate “substantive due process,” while “incorporation” cases did not.

Conceptually, however, the liberty of contract line of cases involved an exercise of what historian G. Edward White calls “guardian review,” policing the limits of state power, not “substantive due process.” The concept of “substantive due process” was primarily a post-New Deal innovation that did not become firmly established in American jurisprudence until the 1950s. Even if the Lochner line of cases could accurately be described as examples of substantive due process, exempting the incorporation cases from that moniker defied logic. For example, enforcing the First Amendment right of freedom of speech against the states via the Due Process Clause is literally an exercise in protecting a substantive right through that clause, and therefore is “substantive due process.”

In practice, the post-New Deal Court was doing precisely what its predecessor had done before it: identifying which rights it deemed fundamental to American liberty, and decreeing that the Due Process Clause protected those rights against the states. The Court, in fact, eventually out-Lochnered Lochner. Before the New Deal, the scope of liberty of contract and other Fourteenth Amendment due process rights recognized by the Supreme Court, including freedom of expression, was constrained by the states’ police powers. After the New Deal, police power considerations were eventually replaced with the test of whether government infringement on freedom of speech served a “compelling interest,” a significantly stricter test. The right to freedom of expression under the Due Process Clause, which the Court deemed a “preferred freedom,” quickly became far broader than the right to liberty of contract ever had been.

Nor did “incorporation” prevent the Justices’ from exercising discretion based on their ideological proclivities. First, the Court engaged only in “selective incorporation.” The rights not incorporated, such as the right to a grand jury hearing and the right to bear arms, were the rights that the Justices either didn’t approve of or thought were unimportant. Second, the Court interpreted some incorporated rights, such as the Fifth Amendment’s ban on taking private property without just compensation, and some other rights found explicitly in the Constitution’s text, such as Article I, Section 10’s ban on states impairing contractual obligations, far more narrowly than it interpreted rights favored by liberal intellectuals, such as freedom of expression. In short, if Lochner and other liberty of contract cases were examples of dubious “substantive due process” based on the Justices’ ideological proclivities, then so, a fortiori, were the incorporation cases.