Archive | Rehabilitating Lochner

The Demise of Progressive Legal History

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. [...]

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More on Vermuele on Living Constitutionalism

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 [...]

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Alan Meese and Nate Oman Take on Noah Feldman

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 [...]

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A Funny Thing About “Substantive Due Process”

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 [...]

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So Why Not Roe?

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

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First Review of Rehabilitating Lochner

Stumbled across this at 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

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Rufus Peckham KOs Oliver Wendell Holmes

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.

LOCHNER-- final 600 (3)

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. [...]

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The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school

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. [...]

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Lochner v. New York as a Test Case

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 [...]

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The Incorporation Doctrine

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

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