Archive | Rehabilitating Lochner

Barack Obama on Lochner

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

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Commentary Reviews Rehabilitating Lochner

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. […]

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Some Controversies Addressed by Rehabilitating Lochner

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 […]

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Rehabilitating Lochner Event at the Cato Institute Monday at 4 pm

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). […]

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I’ve Posted the Introduction to Rehabilitating Lochner

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

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Yet More “Life Imitates Rehabilitating Lochner”

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

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Rehabilitating Lochner News

(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.” […]

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The One and Only Substantive Due Process Clause

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 […]

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The Progressive-Conservative View of Judicial Restraint

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 […]

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More “Life Imitates ‘Rehabilitating Lochner'”

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 […]

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Life Imitates Rehabilitating 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 […]

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Book Blurbs

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

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The First U.S. Supreme Court Case

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 […]

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