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.