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[Ilya Somin (guest-blogging), April 4, 2006 at 5:38pm] Trackbacks
Lochner and the Anti-Canon:

Within the legal academy, I think it's clear that Lochner is slowly losing its status as an anti-canonical case, in part for precisely the reasons David suggests. That is not to say that most law professors agree with it - they do not. But far fewer than before regard it as unquestionably wrong and as a symbol of judicial evil.

In addition to the excellent historical research by Siegan, David, and others, Lochner's reputation has also benefited from the return of free market economics to intellectual respectability over the last 30 years. In order for a decision to enter the anti-canon, it usually has to be regarded not only as unquestionably wrong from a legal point of view, but also as an endorsement of what is seen as an obviously evil policy result. That's why Plessy and Dred Scott are so widely reviled, while numerous other decisions with equally bad or worse legal reasoning have not suffered the same fate.

Obviously, most law professors (though a smaller percentage than before) still don't like the policy impact of Lochner. But since the rise of law and economics it's much tougher for them to claim that that impact was obviously negative. For example, even the con law textbook from which I teach, coauthored by four prominent liberal academics, seems to endorse the now conventional view that the maximum hours statute invalidated by Lochner was enacted for the purpose of driving small bakeries that employed poor immigrant bakers out of business in order to benefit their competitors - larger bakeries that primarily employed somewhat wealthier native-born workers. In other words, far from benefiting "the workers" at the expense of "the capitalists," this law was benefiting relatively wealthier capitalists and workers at the expense of poorer, less-established members of both classes. And that's not even to mention the impact of higher food prices on consumers, which also disproportionately harmed the poor; this part, I think, is not given sufficient attention even in the revisionist scholarship. None of this proves that the law was unconstitutional (many harmful laws are not). But it does throw a wrench into the standard class warfare morality tale that used to be the unchallenged conventional wisdom on Lochner.

That said, Lochner's reputation has changed much less (if at all) among lawyers outside the academy than within the ivy walls. That may begin to change as more attorneys educated within the last 10-15 years enter the top echelons of the profession.

JLR (mail) (www):
One could just simply say that Lochner was incorrectly decided for the same reason Adkins v. Children's Hospital and other decisions like it were incorrectly decided: the Constitution textually and historically does not grant the right of "substantive due process." Along similar lines, Meyer, Pierce, Griswold, Roe, Casey, Lawrence, and other decisions would also have been wrongly decided.

Whether or not that claim is correct, it is certainly defensible.
4.4.2006 6:54pm
DavidBernstein (mail):
For the sake of historical accuracy, Lochner, Adkins, Meyer, and Pierce did not assert a "substantive due process" right, nor would the Justices of that era have been familiar with the term.
4.4.2006 6:58pm
JLR (mail) (www):
Professor Bernstein,

Thanks for the clarification. Lochner, Adkins, Adair, Coppage, Allgeyer, etc., discussed "liberty of contract" that the Court chose to lodge in the due process clauses of the 5th and 14th Amendments.

In Meyer v. Nebraska, 262 US 390 (1923), Justice McReynolds writes that "Without doubt, [the 14th Amendment due process clause] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Justice McReynolds cites Adkins, Lochner, Allgeyer, and other decisions to support his point.

So yes, "substantive due process" as a right was not asserted in any of the cases of that era. But I think Justice Black was accurate in calling it the "Allgeyer-Lochner-Adair-Coppage constitutional doctrine" (Lincoln Union v. Northwestern Co., 335 U.S. 525 [1949]).

Once again, thanks for the clarification.
4.4.2006 7:29pm
FlimFlam:
So we have butchers and bakers. Soon the candlestick makers?

Anchor it where it belongs (and fits) - P and/or I.
4.4.2006 8:57pm
Justin (mail):
JLR: Don't you get it? Reading into the Constitution LIBERAL policy preferences is considered "substantive due process" and is bad. Reading into the Constitution CONSERATIVE policy preferences is called "natural law" and is good - and is, of course, not making law or overturning the democratic will.
4.5.2006 1:32am
von (mail) (www):
For the sake of historical accuracy, Lochner, Adkins, Meyer, and Pierce did not assert a "substantive due process" right, nor would the Justices of that era have been familiar with the term.

I appreciate the point, which is well taken as a matter of history. As a functional matter, however, JLR argues that these cases are substantive due process cases. It's a persuasive argument, to my ears. Is there a response?

von

FWIW -- and without re-invigorating the long-simmering debate at VC over Justice Black's (admitted) failings -- I tend toward the it-means-what-it-says-and-says-what-it-means school. Which makes me somewhat hostile to Lochner in concept, and somewhat annoyed by the fact that Lochner has become more fashionable (this season, at least).
4.5.2006 2:00am
Bruce Wilder (www):
"not only as unquestionably wrong from a legal point of view, but also as an endorsement of what is seen as an obviously evil policy result. That's why Plessy and Dred Scott are so widely reviled, while numerous other decisions with equally bad or worse legal reasoning have not suffered the same fate."

Citing Dred Scott in this context seems very curious in this context, as I will explain below.

A precedental opinion's consequences for subsequent social and political struggle and development would seem to be the determining criteria for the anti-canon. Brown is in the canon, because it freed the country to pursue the dismantling of segregation, etc., not because it is a model of Constitutional analysis. Just so, Plessy is in the anti-canon, because it gave Constitutional sanction to Jim Crow, not because the opinion is particularly "bad" as abstract analysis.

Plessy's doctrine of "separate, but equal" had the virtue of hypocrisy, acknowledging and preserving the Constitution's requirement of equality. That doctrine was unrealistic, a kind of legal fiction, which allowed conservatives and reactionaries to deny the obvious, that segregation was policy adopted to impose and maintain inequality, to make of one race inferior to the other. The social and political consequences of Jim Crow cannot be separated from the consequences of Plessy in closing the courthouse door to Federal challenges to Jim Crow. But, Plessy did not lock the court house door; it left the nominal requirments of the 5th and 14th amendments intact, to be used subsequently to chip away at Jim Crow segregation.

The current critique of Roe, that it has retarded and distorted subsequent political (i.e. legislative) developments relating to abortion, is a nomination for the anti-canon. The criticism of Blackmun's opinion as illegitimate Constitutional interpretation, has been been supplemented by a view of the subsequent controversies as having been significantly shaped and distorted by the decision in a regrettable way.

The quality of legal reasoning is less important to an historical judgement, than the effect of the precedent on subsequent political and social struggle. It is the effect of Lochner on subsequent efforts to enact progressive labor laws, which earned it, its well-deserved bad rep.

That said, I think it curious that Ilya Somin should cite Dred Scott in this context. Taney's opinion in Dred Scott was, of course, one of the most dreadfully consequential in American history, contributing in no small part to the eruption of the Civil War. The 14th amendment was enacted to "repeal" Taney's opinion in Dred Scott!

Oddly, the decision in Dred Scott was accepted as legally correct, even by contemporary opponents of slavery. It was Taney's opinion -- the quality of his legal reasoning, if you will -- that caused all the difficulty.

Taney's "legal reasoning" in more than twenty odd pages is the epitome of "bad" -- bad as only a very smart, skilled and determined practioner can make it, which is to say, more horrifying to contemplate than a car wreck. The man actually manages to flatly contradict the text of the Constitution, itself, in effect declaring a provision of the Constitution, itself, unconstitutional! He embraces the interpretative strategy of original intent with a death grip of lies and tendentious history. He parses constitutional text into meaninglessness. And, of course, Taney finds a substantive right in due process, and what a "right" it is! It really is an amazing performance, deserving every bit of opprobrium it receives.
4.5.2006 3:23pm