In Revolution by Judiciary, Yale Law professor Jed Rubenfeld notes that the “Lochner era” Supreme Court invalidated several federal labor statutes on the seemingly reasonable grounds that they were beyond Congress’ delegated power under the Commerce Clause. The Court held that Congress was regulating intrastate labor, not interstate commerce. But, Rubenfeld adds,
The embarrassment was that when the Lochner Court dealt with state labor statutes of the very same kind, the Court would strike down these measures too. The implication of the Lochner Court’s “federalism” cases was that the regulation of bargaining, of wages, or of the hours of employment was constitutionally confided to exclusive state legislative control. Yet when the states attempted to exercise this control, the Lochner Court did not let them.
To support his claim, Rubenfeld cites Lochner itself, plus a case in which the the Supreme Court invalidated a state ban on “yellow dog contracts” (as it had also done to a similar federal law), and one in which the Supreme Court invalidated a D.C. (not state) minimum wage law.
Rubenfeld concludes that Lochner era jurisprudence was a “constitutional joke” that “did not deserve to be taken seriously as constitutional interpretation.” Rather, the Court was simply “anti-anti-capitalist,” and especially fearful of the socialistic tendencies of labor unions (something of an odd claim, given that few successful American labor unions were ideologically socialist during the AFL and Railroad Brotherhood-dominated Lochner era).
Rubenfeld’s thesis is a bit of a challenge for me. I’m writing a book on Lochner in which–while certainly not denying the influence of ideology and historical circumstance on Supreme Court decisionmaking–I do take the Lochner line of due process cases seriously as constitutional interpretation, and in which I treat the federalism cases as entirely jurisprudentially separate from that line. Moreover, Rubenfeld’s harsh view of Lochner era jurisprudence, while perhaps expressed more pungently than others have, seems to be reasonably common on both the liberal left and the conservative right.
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To prove his case that the Court’s jurisprudence was purely a mask for a substantive political agenda, Rubenfeld needs to show not simply that the Supreme Court invalidated an occasional state labor law on due process grounds–there is, after all nothing inherently inconsistent about holding certain federal labor laws are beyond the commerce power, and certain state laws violate the Due Process Clause. Rather, he needs to show that just about any law that was considered unconstitutional when passed by Congress to regulate the national labor market would also have been unconstitutional when passed by a state to regulate the state labor market.
There is at least one obvious counter-example to Rubenfeld’s claim. The Supreme Court twice invalidated, by 5-4 votes, attempts by Congress to indirectly regulate child labor. But when the issue of direct state regulation of child labor reached the Court, the Court upheld it unanimously. Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320(1913).
Beyond that, after Lochner, the Supreme Court upheld many state labor laws, sometimes unanimously, including, most prominently, workers’ compensation laws, laws regulating the hours of labor of women, and maximum hours laws for all industrial workers. Less prominent state labor laws upheld by the Court included laws requiring washhouses or washrooms for mine employees; requiring that coal miners’ pay be based on the prescreened weight of the coal that they produced; requiring railroads to pay their employees semi-monthly and in cash; requiring a minimum width pillar of coal between adjoining coal properties for safety; requiring a minimum width for entries of bituminous coal mines; requiring the enclosure of certain shafts or openings of bin building during construction; and holding mining companies liable for the negligent actions of their mine managers.
Congress did not pass analogous laws applying to the national labor market, in part because it’s likely that almost no one thought that such laws would pass constitutional muster under the Commerce Clause. And it’s nearly certain that if Congress had passed such laws, the Supreme Court would have invalidated them as beyond Congress’s commerce power, even though the Court upheld the state laws.
One could point to additional problems with Rubenfeld’s thesis. For example, Rubenfeld claims that the Lochner era Justices were not motivated by general anti-statist (or libertarian) sympathies, yet the most “Lochnerian” Justices were also the Justices most likely to argue in the Insular Cases that residents of U.S. territories were entitled to invoke the rights protected by the U.S. Constitution. Nor is it at all obvious that Rubinfeld could explain such early “civil liberties” cases as Meyer v. Nebraska or Pierce v. Society of Sisters via his “anti-anti-capitalism” thesis.
In short, Rubenfeld can sneer at Lochner era jurisprudence all he wants, and it certainly had its flaws. But the argument that Lochner era constitutional doctrine was simply a mask for the sort of narrow ideological considerations he identifies is not supported by the historical evidence.