Lochner and the Anti-Canon:
In his post below, David makes a very interesting claim:
Siegan's influence is an important reason that Lochner is gradually losing its place in the constitutional law "anti-canon;" who would have believed pre-Siegan that leading liberal scholars such as Bruce Ackerman, Owen Fiss, Walter Dellinger, and others would express at least tepid regard for the Court's decision in Lochner (even if they think that it either went too far, or quickly became anachronistic in its principles)?
  Maybe I'm just missing the boat, but it doesn't seem right to me that Lochner is "gradually losing its place in the constitutional law anti-canon." My sense is that some elite scholars are less harsh in their condemnation of Lochner today than were elite scholars a few decades ago, for reasons that David has written about at length in a number of very interesting articles. But does anyone think that Lochner was actually correct?
Ackerman does--at least, under his view of what "the Constitution" was at the time Lochner was decided. See We the People.
4.4.2006 3:24pm
I think Lochner is at least plausible. After all the decision stated that the basis of the hours worked restriction was economic, and left the door wide open for limiting hours where health and safety were a concern. But if Lochner was beyond the pale, what about other Lochner based decisions such as "New State Ice", and "Pierce v. Society of Sisters of the Holy Names of Jesus and Mary", Is there anybody that thinks they were incorrect? Did they go just far enough and Lochner went too far?
4.4.2006 3:37pm
Greedy Clerk (mail):
Kazinski -- there are a lot of people who think that Pierce v. Society of Sisters was wrongly decided. I am not one of them -- though its reasoning was wrong.
4.4.2006 3:55pm
Lochner is less unpopular now for two primary reasons:

1. The height of the anti-Lochner era was also the height of, for want of a better word, "non-free market" economic policies. The primary animus to Lochner, despite the legal veneer, was as atrocious social policy. The return of free market economics and fashionability of Hayek and other such intellectuals has called this policy judgment into question. From there it is a short step from "Lochner is sound policy," to "Lochner vindicates an economic constitutional right."

2. Lochner was judicial activism personified. It found an unemurated right under the due process clause of the 14th amendment, as did Pierce v. Society of Sisters. A more recent controversial right found using this logic is, of course, Roe v. Wade. Therefore, those who support the judicial activism of Roe v. Wade can no longer plausibly decry the judicial activism of Lochner. And footnote 4 of the Carolene Products Case is an awfully slim support for a finding of difference.
4.4.2006 4:15pm
For those unaware of the facts behind Pierce v. the Society of Sisters, the Oregon KKK, in a height of anti-Catholic demagoguery, qualified and got passed as an initiative by the voters the Compulsory Public Education Act, which would have required all Oregon students to attend public schools. The target was the Catholic parochial school system. The Court, led by noted judicial progressive James McReynolds, found this law unconstitutional as a violation of subatantive due process.
4.4.2006 4:18pm
joe (mail):
I think there might be a sitting judge on the DC Court of Appeals that thinks Lochner was wrong. This is from Janice Rogers Brown's "Whiter Shade of Pale" speech to the Federalist Society:

I have argued that collectivism was (and is) fundamentally incompatible with the vision that undergirded this country's founding. The New Deal, however, inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document. In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the "constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire."19 Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. That Lochner dissent has troubled me — has annoyed me — for a long time and finally I understand why. It's because the framers did draft the Constitution with a surrounding sense of a particular polity in mind, one based on a definite conception of humanity. In fact as Professor Richard Epstein has said, Holmes's contention is "not true of our [ ] [Constitution], which was organized upon very explicit principles of political theory."20 It could be characterized as a plan for humanity "after the fall."
4.4.2006 4:27pm
Joe Henchman (mail):
I do.
4.4.2006 4:27pm
Oh my word (mail):
It's plausible to argue that Lochner can be justified on equal protection grounds, based on how 19th c. politicians viewed the concept of equality before the law--that the law should not play favorites, and economic legislation aimed at class warfare was to be barred by the Constitution to prevent majorities from beating up on various minorities (not just racial).

As an embodiment of Due Process (or Priviliges or Immunities), the case has no more justification than does Roe v. Wade or Griswold.
4.4.2006 4:39pm
But does anyone think that Lochner was actually correct?

Not I.

Holmes was right then and remains so today: "The Fourteenth Amendment [did] not enact Mr. Herbert Spencer's Social Statics."

Simple, ugly, rapacious greed is at the core of a philosophy which embraces Lochner and the idea of substantive economic rights. Nothing more; nothing less.

To assert that ours is a Constitution which aims to protect base acquisitive urges is to defile it and the work of those responsible for it.
4.4.2006 5:16pm
Scott Scheule (mail) (www):
I used to work for a guy who thought it was correct.

See this book. I thought his argument was plausible.
4.4.2006 5:21pm
eddie (mail):
Nether being as deeply grounded in the "history" of these decisions nor the actual argumentation in the various decisions, I would still like the following questions answered:

1. Is there any Constitutional basis for any "economic" legislation, whether aimed at such nefarious "collectivist" (read "socialist or communist") intentions as the protection of the health and safety of individual citizens or at "free market" protections (i.e. where do organizations and markets receive any of the protections granted in the Constitution)?

2. Why does the Constitution favor one form of economic regime over the other?

3. If all of these so-called regulatory protections can only be provided through state legislation, if one state ships tainted materials to another or pollutes a river upstream that effects a separate state down stream, does the Federal government offer any remedies? Will all such individual and "State" protections merely fregmentize the republic?

4. What is the basis for the federal government to provide money to anyone (except to the extent to pay actual bills)? What gave congress the power to build the interstate highway system?

5. Are there any penumbra that emanate from Article II, Section 8 (e.g. "general welfare")or the 16th Amendment that provide a basis for the horrors that are post-Lochnerian?

6. Once the Constitution has been rescued from exile, will all provisions thereof be returned to the pristine purity of a late 18th century outlook, except to the extent explicitly amended? In fact, how can any amendments to the Constitution be conformed to that point of view?

(Okay the last question was perhaps a bit snarky, but I am always amazed at how any person alive today can have the chutzpah to imagine that they have any concept of what our founders thought then or more importantly what our founders would think today.)
4.4.2006 5:26pm
Um, what's an "anti-canon?"

Would such a group include, say, the Gospel of Thomas, because it was rejected by those who had the opportunity to include it? Plessy v. Ferguson and Bowers v. Hardwick, because they've been overruled? The Civil Rights Cases, because nobody pays much attention to it? For a legal taxonomist, this is an important question.
4.4.2006 5:35pm
The majority opinion held that because there was a very tenuous link between hours worked and the health and welfare of a baker that the state had extended its police power too far. Especially since "To the common understanding, the trade of a baker has never been regarded as an unhealthy one." So based on that premise, in today's world when do you think the state would go to far in regulating the hours spent working with or without pay:

1. A farmer on his own farm
2. A lawyer.
3. A lawyer in his own practice.
4. A college student studying.
5. A Housewife running a household.
6. A doctor in private practice.
7. A doctor in an emergency room.
8. A trucker.
9. A trucker as owner operator.
10. A blogger.

I'd like to see what the response would be if the State outlawed all-nighters for students, or limited lawyers to billing 40 hours per week. Or limited farmers to no more than 60 hours a week, even during harvest. If there are not overriding health and safety concerns why can't someone sell their labor, which they are entitled to use in their own interest?
4.4.2006 5:40pm
"I'd like to see what the response would be if the State . . . limited lawyers to billing 40 hours per week."

It would confirm the existance of G-d. ;-)
4.4.2006 5:52pm
Nunzio (mail):
I always liked Lochner. The problem for any legal advocate is that it will never be over-turned b/c you will be arguing to life-tenured gov't bureaucrats who can't ever get a pay cut.

Surely these fools, like Judge Brown of the D.C. Circuit who's basically always worked for a gov't, have no interest in freedom or entrepreneurial qualities. If they had them, they'd actually have real jobs that produce economic wealth.
4.4.2006 5:56pm
Justin (mail):
Kazinski, so because the Supreme Court disagreed with the policy decision of the State of New York, it should feel free to overturn on those grounds?

Just keep that in mind the next time you make the statement about how judges abuse their powers when they make policy decisions and/or "make law" rather than "follow law."


Also, I know this is a conservberterian blog, but do people really think that modern society has justified Hayek and laissez faire economic theory? While some deregulation has taken place (to both effective and ineffective results), much is being more and more regulated (from education to building and health codes to worker safety to the environment) and it appears that this is one battle that the current Republicans in office have abandoned, preferring instead to use regulation to protect their preferred interest groups from competition or from the effects of other regulations or prohibitions.
4.4.2006 5:59pm
Oh my word (mail):
I think that a careful study of economic history amply justifies the virtues of the free market and property rights today.
4.4.2006 6:07pm
Justin (mail):
Oh my word,

That's very nice. I think careful studies of economic history tend to show the opposite conclusion.

(Or, to be more precise, tends to show that neither free markets nor centralized markets, and neither Nozickian property rights nor Marxism property theory, tend to produce good results - that well regulated markets with some respect for property rights but also respect for equality and minimal economic subsistance have had the best results. But that is much less pithy.)
4.4.2006 6:13pm
So you think constitutionaly that the state can limit farmers to farming 40 hours a week, or limit students to studying no more than 8 hours a day, and never between 2am - 6am? Is there no limit to the State's powers in limiting human economic activity?
4.4.2006 6:17pm
Anderson (mail) (www):
Um, what's an "anti-canon?"

A judicial decision that, when it contacts part of the canon, destroys both in an enormous blast of sound &fury (but very little light).
4.4.2006 6:55pm
Greedy Clerk (mail):
If there are not overriding health and safety concerns why can't someone sell their labor, which they are entitled to use in their own interest?

If you cannot see the difference between the two, you are either willfully blind or an idiot.

This is the real world Kazinski, not a freshman microeconomics class where everything takes place in the hypothetical perfect market. I forget that conservatives these days live in Bush's world -- Kazinski will probably say that it's a media construct that a single worker has the same bargaining power as a factory owner. . . .
4.4.2006 7:25pm
Greedy Clerk (mail):
By the way, this list does pose interesting questions:

1. A farmer on his own farm

Too far -- person has a right to work for himself as much as he wants absent special circumstances (see 6 below).

2. A lawyer.

Depends on the circumstances.

3. A lawyer in his own practice.

Too far (see 1).

4. A college student studying.

Too far -- a person has a right to educate themself to the fullest extent they want. This would also raise first amendment issues.

5. A Housewife running a household.

Too far --- see Griswold, etc. Cf. also US Const, amend IV.

6. A doctor in private practice.

OK -- only because of special public health concerns, though I would require a higher degree of scrutiny.

7. A doctor in an emergency room.

OK. See 6.

8. A trucker.

OK. See 6, also because a regulation of a private employers' requirements on employees is A-OK because the bargaining power between the two is usually non-existent, i.e., the employee has no power.

9. A trucker as owner operator.

OK. See 6.

10. A blogger

Too far. Cf. 4. See also US Const. amend I.
4.4.2006 7:30pm
Greedy Clerk,

So what is the governing principle? Is it the obscenity test? I'd say 6,7,8,9 should be under the legitimate regulation of the state because the health and welfare of others can be directly affected by the hours worked by doctors and truckers. And it shouldn't matter if they are in business for themselves or others.

As for the own business vs employee issue, you are going to discriminate against a baker that hasn't amassed enough capital to go into business for himself vs the baker that has already accumulated sufficient capital? Or are you just going to make the poor baker go out and find a second job with all of the additional inefficientcies in time and transportation that that will cost him.
4.4.2006 7:49pm
Bezuhov (mail):
"Simple, ugly, rapacious greed is at the core of a philosophy which embraces Lochner and the idea of substantive economic rights. Nothing more; nothing less.

To assert that ours is a Constitution which aims to protect base acquisitive urges is to defile it and the work of those responsible for it."

Wow. When's the altar call?

"2. A lawyer.

Depends on the circumstances."

LOL. The pertinent circumstance being that we're ruled by lawyers. Possibly the least bad option, but still funny.
4.4.2006 8:40pm
Robert Schwartz (mail):
If Lochner is less unpopular, it is because SCOTUS conceded in Lawrence that the sex cases (Griswold, Roe, Lawrence) were all based on substantive due process. SDP is a very powerful genie to let out of the bottle.
4.4.2006 11:01pm
Goober (mail):
I'm utterly at a loss at all this confusion over whether Substantive Due Process as recognized in Roe and Lawrence mean that no one has any choice but to accept Lochner. Do you really believe no one can make the distinction between one kind of SDP (protecting sex, marriage, child-bearing and child-rearing), which is protected under our Constitution, and another kind (based on the economic views of a handful of self-sure GMU law profs---er, 19th century Justices), which is not? Roe was concordant with our constitutionbal history and correctly decided; Lochner was not! The willful blindness of those who want to pretend they can't see any difference between them is truly a mystery.
4.5.2006 1:50pm