Complements to Rehabilitating Lochner

A reader emailed to say he enjoyed Rehabilitating Lochner, and wonders if I could recommend additional books on the same or closely related topics. Okay. Just note that my recommendation doesn’t necessarily constitute an endorsement of the author’s conclusions.

David Mayer, Liberty of Contract: Rediscovering a Lost Constitutional Right. Very recent, and covers some of the same ground as Rehabilitating Lochner--Mayer, a J.D./Ph.D. in history, also approaches the subject from a historical perspective. Unlike me, Mayer takes a normative position that liberty of contract is protected by the Fourteenth Amendment and should be judicially enforced.

Paul Kens, Lochner v. New York: Economic Regulation on Trial. The last major scholarly work [note that the original version of this book was published in 1990, based on a Ph.D. thesis written even earlier] on Lochner to propound the traditional view of Lochner–that its origins lie in “laissez faire Social Darwinism” and that its consequences were almost uniformly bad–that has lost favor among historians and that Rehabilitating Lochner tries to discredit once and for all. Comparing and contrasting the two books would make a great assignment for a constitutional history seminar.

Kenneth Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law. My favorite constitutional history book, ever.I reviewed it here. Kersch’s influence is apparent in several places in Rehabilitating Lochner. In particular, Kersch emphasizes how post-New Deal legal elites distorted pre-New Deal constitutional history to justify the massive changes to constitutional doctrine that occurred starting in the 1930s.

David Bernstein, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal. My previous Lochner-related book. The basic idea: (a) Legislators tend to favor those with political power; (b) before the modern civil rights era, African Americans had little political power; and (c) therefore, New Deal and pre-New Deal labor legislation tended at best not to take the interests of African Americans into account, and at worst was intentionally aimed at excluding them from the workforce. Judicial decisions favoring free labor markets, by contrast, tended to help African-American workers.


Bernard Siegan, Economic Liberties and the Constitution.
A somewhat dated revisionist account of the Supreme Court’s economic liberties jurisprudence. What’s remarkable about this book is that when it was published in 1980, there had been exactly one law review article even mildly sympathetic to that jurisprudence in the last forty or so years. Siegan, then, was operating at a huge scholarly disadvantage, and did an incredible job. Siegan’s second edition is a complete and very inferior rewrite. Instead, check out Tim Sandefur, The Right to Earn a Living: Economic Freedom and the Law.

Howard Gillman, The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence. Gillman locates the origin of Lochner and other “substantive due process” cases of the pre-New Deal era in the anti-“class legislation” tradition going back to the Jacksonian era and beyond. I think Gillman overstates his case, but the book is undoubtedly an important contribution to Lochner historiography.

Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution. An “internalist” account of constitutional change during the 1930s, focusing on the weaknesses and internal contradictions in pre-New Deal constitutional jurisprudence, as opposed to political and historical forces operating on the Court. Query whether the changes that took place in the mid-1930s were nearly as consequential as what happened when the more traditionalist Justices who shared at least some common premises were replaced with a series of Roosevelt appointees in the late 1930s and early 1940s.

G. Edward White, The Constitution and the New Deal. Lots of interesting insights in this book, including a discussion of just how out-of-the-mainstream Justice Holmes’s due process opinions were at the time.

Albert Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes. Some VC commenters have given me a hard time about my negative views of Justice Holmes. Alschuler almost makes me look like a fan in comparison.

Richard Epstein, How Progressives Rewrote the Constitution. The title speaks for itself.

Michael Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s. Uneven, but definitely worth a look if you are interested in Lochner.

Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty. Only tangentially related, but always worth a plug!

Jack Balkin, Constitutional Redemption: Political Faith in an Unjust World. Contains an excellent “historicist” discussion of Lochner, and is well worth reading otherwise.

James W. Ely, The Guardian of Every other Right: A Constitutional History of Property Rights. The title speaks for itself.