[You should probably scroll down and start with Orin’s first post on Glenn Beck if you want to follow this thread]
First, thanks to Orin for the nice plug for my Rehabilitating Lochner book, which probably won’t be out until about a year from now.
Second, just to clarify, my broader concern in criticizing Roscoe Pound and his Progressive contemporaries is not that they were principled advocates of judicial restraint in constitutional interpretation, and I don’t like judicial restraint. (In fact, my own views on judicial restraint and constitutional law are rather murky, even to me, at this point.)
Rather, I object to the fact that the Progressive legal scholars supported judicial restraint primarily because they thought that this would further the Progressive agenda, which sought to elevate the power of the government at the expense of individual rights. (Holmes was a different story; Holmes was a democrat not because he was a Progressive, but because he saw democracy as a relatively peaceful way for individuals to engage in the Darwinian struggle for survival. I can’t say I find this ideology especially attractive.) So I don’t see the Progressives as principled supporters of judicial restraint, but as consistent supporters of government regulation of virtually all aspects of human life, from limiting how many hours a baker could work, to banning private schools, to segregating housing [Progressive law review commentary was especially hostile to Buchanan v. Warley, which invalidated de jure housing segregation], to encouraging state-sponsored eugenics. Judicial restraint was a means to promote and protect these statist ends, and not an end in itself.
Relatedly, one of the most interesting things I’ve learned about Lochner [as a stand-in for the liberty of contract doctrine more generally] is that while right-of-center scholars like Orin often criticize it today as “based on a nontextual and ahistorical doctrinal test,” that wasn’t (with the partial exception of Corwin) the Progressives’ critique. Please indulge one more excerpt from the book:
The irony of the conservative originalist critique of Lochner is that proponents of liberty of contract were themselves originalists, trying to adhere to what they saw as the constitutional understandings of the Fourteenth Amendment’s Framers regarding individual liberty and the scope of the police power. The early twentieth century version of originalism differed in significant ways from modern conservative originalism, and it was neither well-theorized nor well-explained by its judicial adherents. Modern conservative originalists might very well argue that the liberty of contract cases represented a mistaken interpretation or application of originalism, but it was originalism nevertheless….
Progressives [,meanwhile,] generally blamed the Constitution itself, and its implicit and explicit support for property rights and limited government, rather than “judicial activism,” for the liberty of contract cases and due process cases they believed were harmful and mistaken. Indeed, Progressives invented and promoted the concept of a “living Constitution.” (See, e.g., Howard Lee McBain, The Living Constitution A Consideration of the Realities and Legends of Our fundamental Law (1927)).
In short, while Progressive legal elites favored judicial restraint, their political and jurisprudential ideologies, favoring statism and opposing originalism (flip sides of the same coin to them) would seem to have little to recommend themselves to modern conservative legal elites.