Barack Obama on Lochner

In comments to some of my recent posts, some commenters have suggested that few people nowadays get especially worked up about Lochner v. New York. Rather, it’s Bush v. Gore, or Korematsu, or Citizens United, that raises hackles, with Lochner seen perhaps as a quaint anachronism with little modern relevance. I agree that over time, and thanks in part to revisionist scholarship (including my own), Lochner’s salience to public constitutional debate has declined somewhat since its heyday in approximately the late 1980s–not coincidentally, the time period when I went to law school and became fascinated by the (negative) fascination with Lochner.

But that hardly means that Lochnerm has lost all, or even most of it potency. One could cite Supreme Court opinions for this proposition, but I instead call as a witness a former Senator from Illinois and constitutional law professor, an obscure fellow named Barack Obama. Here’s Obama in June 2005, opposing the nomination of Janice Rogers Brown to the D.C. Circuit. Dubious or inaccurate historical statements reflecting common misuses of Lochner as a historical symbol are highlighted in bold, and are annotated below:

For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court. In the Lochner case, and in a whole series of cases prior to Lochner being overturned, the Supreme Court consistently overturned basic measures[1] like minimum wage laws, child labor safety laws, and rights to organize, deeming those laws as somehow violating a constitutional right to private property. The basic argument in Lochner was you can’t regulate the free market because it is going to constrain people’s use of their private property[3]. Keep in mind that that same judicial philosophy was the underpinning of Dred Scott[4], the ruling that overturned the Missouri Compromise and said that it was unconstitutional to forbid slavery from being imported into the free States.

That same judicial philosophy essentially stopped every effort [5] by Franklin Delano Roosevelt to overcome the enormous distress and suffering that occurred during the Great Depression. It was ultimately overturned because Justices, such as Oliver Wendell Holmes[6], realized that if Supreme Court Justices can overturn any economic regulation — Social Security[7], minimum wage, basic zoning laws[8], and so forth — then they would be usurping the rights of a democratically constituted legislature[9]. Suddenly they would be elevated to the point where they were in charge as opposed to democracy being in charge.

[1] The “Lochner era” Court upheld the vast majority of “police power” measures that came before it, and many more were so obviously constitutional that they weren’t litigated. Even in Lochner itself, none of the many regulatory provisions of New York’s Bakeshop Act were even litigated, except for the ten-hour provision that made it to the Supreme Court.

[2] The Supreme Court stated repeatedly, including in Lochner, that legitimate safety laws were constitutional under the police power. And the Court never invalidated a “child labor safety law.” If Obama meant to say “laws regulating or banning child labor,” such state laws were upheld 9-0 under the Due Process Clause (the subject of Lochner), and invalidated 5-4 as beyond federal power under the Commerce Clause. In mixing together federalism cases and liberty of contract cases into one “Lochner era”, Obama is following mainstream, but anachronistic, constitutional law discourse.

[3] No, it wasn’t. First, it was about “liberty of contract,” not property rights. Second, the Court recognized all sorts of valid restrictions on both contracting and the use of property.

[4] Scott did state that it would violate the property rights of slaveowners to ban slavery in federal territories. But that was a short sideshow to the main holding that persons of African descent had no rights under the Constitution. Moreover, as part of the “vested rights” doctrine, this was not an endorsement of laissez-faire more generally. And finally, abolitionists used similar reasoning, relying on the liberty and property interests of the slaves themselves, to argue that any federal recognition of slavery was unconstitutional.

[5] The Supreme Court did invalidate some major pieces of federal New Deal legislation, though under doctrines that had nothing to do with Lochner, per se. And the “essentially stopped every effort” is a gross exaggeration.

[6] Justice Holmes retired in 1930.

[7] The Social Security Act was upheld 7-2, and was not challenged on grounds that doctrinally had anything to do with Lochner, though again, modern constitutional law discourse tends to lump all pre-New Deal doctrines limiting government power, state or federal, together.

[8] The “Lochner era” Supreme Court upheld “basic zoning laws” every time they arose, most famously in Euclid v. Amber Realty, with one exception: the Court unanimously invalidated zoning by race in 1917, to the howls of contemporary Progressives, and reiterated that holding in 1927 and 1930.

[9] In cases like Carolene Products (famous footnote 4), the Supreme Court rejected the Holmesian position that it should simply defer to democratic majorities and instead adopted a stance of deference for economic legislation, and “activism” for important civil liberties and laws that discriminated against minorities. In doing so, the Court favorably cited and retained (but reinterpreted) cases arose out of the Lochner tradition, such as Meyer v. Nebraska.

The point is not to pick on Obama, who is for the most part just repeating conventional wisdom, and who in this speech was in any event acting as a politician, not a law professor. Rather, it’s to point out not just Lochner’s continuing salience, but the fact that this salience is often based on a very tenuous understanding of history.

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