Back in April, I wrote, “We need a Godwin’s Law for constitutional litigation: the first side to raise Lochner, especially in a case not involving the Due Process Clause, automatically loses.”
Let’s call it “Bernstein’s Law.”
If Bernstein’s law was a criminal law, Justice Stephen Breyer would be going to jail for loooong time, given his dissent today in Sorrell v. IMS Health, a First Amendment/commercial speech case. (Thanks to several VC readers for alerting me to this, and especially to Josh Blackman for saving me the effort of finding all the Lochner references myself).
Here’s Breyer:
[1] “To apply a ‘heightened’ standard of review in such cases as a matter of course would risk what then-Justice Rehnquist, dissenting in Central Hudson, described as a ‘retur[n] to the bygone era of Lochner v. New York, 198 U. S. 45 (1905), in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies….'”
[2] Moreover, given the sheer quantity of regulatory initiatives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitutionalization of economic theories preferred by individual jurists. See Lochner v. New York, 198 U. S. 45, 75–76 (1905) (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory interests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the past in a manner not anticipated by our precedents.
[3] At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. See, e.g., supra, at 7–8, 9–11. At worst, it re-awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue.
To top things off, Breyer invokes Carolene Products and Williamson v. Lee Optical, two very deferential post-1937 due process cases, as providing appropriate guidance in First Amendment commercial speech cases.
Of course, Breyer is simply playing the rhetorical trick that modern liberal constitutionalists have been fond of since at least publication of Laurence Tribe’s constitutional law treatise in 1978: first, to segregate the pre-New Deal Court’s “economic” due process opinions like Lochner (bad!) from it’s “non-economic” decisions like Meyer v. Nebraska (good!) even though the Court made no such economic/non-economic distinction at the time, and neither, for the most part, did its critics; and, second, to conflate due process opinions like Lochner that protected the unenumerated right to liberty of contract with EVERY other serious judicial review of economic legislation, regardless of what provision it arises under, including the First Amendment.
It’s a reasonably effective rhetorical device, but it’s certainly not “history”, and citing flippant remarks of Justice Holmes, who routinely proclaimed himself utterly uninterested in the “facts” of the cases before him, doesn’t help Breyer. Nor does it help Breyer that he cites the late Justice Rehnquist several times. Rehnquist’s hostility to Lochner didn’t lie in his belief that the judiciary should take a hands-off approach to all economic regulation, but in his belief that the judiciary should apply the Due Process Clause narrowly. Thus, unlike Breyer, Rehnquist disparaged Lochner and Roe v. Wade with equal vigor, while of course voting against the government in Takings, Commerce Clause, and other cases involving economic regulation when the Due Process Clause was not at issue. [UPDATE: Deleted a bit about Rehnquist and commercial speech, in which I seem to have exaggerated his support for such speech.]
In any event, as Blackman notes, Justice Kennedy provides a simple but elegant two sentence reply to Breyer’s violation of Bernstein’s Law: “The Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics’ Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment.”
In other words Justice Breyer, Justice Kennedy is saying, modern conservatives agree that Lochner was wrongly decided, but don’t agree that the problem with Lochner was that it invalidated economic legislation. Rather, conservatives believe that the problem was that the Court turned a mild, non-specific, primarily procedural provision of the Fourteenth Amendment into a warrant to read libertarian values into the Constitution. [A criticism, by the way, that is not historically “conservative,” but originated with Progressive critics of Lochner like Learned Hand and Felix Frankfurter.] A far different scenario presents itself when the Court is applying a specifically enumerated right, like the First Amendment’s right to freedom of speech.