Bernard Siegan, R.I.P.:
I regret to report that Professor Bernard Siegan of the University of San Diego Law School died last Monday. Siegan was author of the 1980 book Economic Liberties and the Constitution, which revolutionized thinking about the "substantive due process" jurisprudence of the Lochner era. Typical of pioneering books, this book had some flaws, but was basically right in the essential points it made: (1) the idea that "due process of law" was not satisfied by mere judicial process, but also necessitated protection of individual liberty from arbitrary legislative action, was not invented by the Lochner Court, but had historical roots going back to the Founding and well beyond; (2) looked at in economic terms, especially considering public choice factors, the most reviled cases of the Lochner era, including Lochner itself, had positive consequences for social welfare, and especially for the welfare of despised minority groups; (3) the roots of modern civil liberties jurisprudence lie in the cases of Meyer v. Nebraska and Pierce v. Society of Sisters, both of which are in exactly the same jurisprudential traditional as the economic liberties cases more often associated with Lochner; and (4) economic liberty is an important civil right that was foolishly disregarded in the wake of the post-New Deal statist consensus.
Having spent a considerable part of my academic career researching Lochner-related issues, I'm amazed how much Siegan was able to intuit in this one book, with almost no help from the existing literature. For example, he concluded based on rather scant evidence that the maximum hours law at issue in Lochner was anti-competitive legislation promoted by unionized bakers and their employers at the expense of more recent immigrants who worked longer hours. Many scholars scoffed at his conclusion, but I've recently completed an exhaustive historical inquiry into the origins of the law at issue, and have concluded that Siegan was largely correct. More generally, 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)?
I had the pleasure of meeting Prof. Siegan only once, at a conference at USD a few years back. I don't believe that I got the opportunity to thank him for his contributions (of which the book described above is only one) to the revival of classical liberal thought in the legal academy. I hope this posting will serve as posthumous thanks.
UPDATE: When I was a student at Yale, one of my professors, the author of eminently forgettable and inconsequential works on law and economics, referred to Prof. Siegan as "that nut from San Diego, what's his name?" This is the sort of thing that first generation libertarian professors like Siegan had to routinely put up with, and those of us who have followed in his path owe a debt of gratitude.
Bernie Siegan, R.I.P 2
I just wanted to second David's tribute to Bernie Siegan. Unlike him, I had the opportunity to meet Bernie many times over the years, dating back to when I was an unsuccessful candidate for an entry-level teaching job at the University of San Diego. Almost whenever we saw each other, which was every few years, Bernie would rue the day that the San Diego faculty had voted to reject the Appointments Committee recommendation that I be hired.
I, however, would never mention the injustice of his being rejected by Senate Democrats for a seat on the Ninth Circuit after being nominated by President Reagan. Such a memory must have been painful for him, and I could not bring myself ever to bring it up. According to the L.A. Times
Had he foreseen the negative reaction in Congress and in the press, the University of San Diego law professor later said, he would have turned down the appointment by President Reagan.
"At times, I felt like Public Enemy No. 1," the soft-spoken Siegan told The Times in 1988 after the Senate Judiciary Committee denied his confirmation along party lines.
In addition to his path-breaking work that David ably summarizes, Bernie was one of the sweetest persons I have ever met. With his disposition, it was hard to believe he was a lawyer, much less a former very successful Chicago
real estate transactions lawyer before entering academia. I had not known he was ill (nor realized he was 81!), and his passing is a real loss to all those who love liberty, and especially to all classical liberal law professors who followed in his wake. He was a pioneer whose trail-blazing did not leave him unscathed, but who will live on in our memories of him and in his works.
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?
More on Lochner
To answer Orin's query below, there aren't many scholars who have argued that Lochner was correctly decided, but there are some, including not just Siegan, but the VC's own Randy Barnett, Richard Epstein, Ellen Frankel Paul, Roger Pilon, among others. There are a number of other scholars who are generally sympathetic with Lochnerian cases, but haven't endorsed the particular holding of Lochner, including Alan Meese, Michael Phillips, and Chris Wonnell. Yet another group of scholars argue that the Court went too far in the Lochner era, but that the Court then went too far in the opposite direction in completely refusing to protect economic liberty. Walter Dellinger, Rebecca Brown, David Strauss, among others, fall into this category. A fourth group, including Bruce Ackerman and Owen Fiss, seems to think that Lochner was correct for its time, but properly didn't survive the New Deal Reformation.
Meanwhile, revisionist legal historians including myself, G. Edward White, Barry Cushman, and Howard Gillman have spent the last couple of decades placing Lochner and its progeny in historical context, destroying the myth that Lochner was a "Social Darwinist" opinion issued by a Court seeking to favor corporate power over the rights of workers, and showing that the Court's reasoning was consonant with American political and judicial tradition. Meanwhile, Justice Holmes, author of a famous pithy dissent in Lochner, has seen his reputation plummet.
Contrast the above with the virtually universal condemnation of Plessy or Dred Scott, and one can see that Lochner is no longer in the same anti-canonical league as those opinions. And contrast the above with the way Lochner and its progeny were universally condemned a couple of decades ago, to the extent that after a reasonably exhaustive search I could find only one law review article published between 1937 and 1980 (the year Siegan's book was published) even mildly praising "economic substantive due process." All in all, Lochner is losing its anti-canonical status, and Siegan is as responsible as anyone.