George Will on Rehabilitating Lochner

George Will’s latest column is devoted to my book! It starts:

Liberal certitudes continue to dissolve, the most recent solvent being a robust new defense of a 1905 Supreme Court decision that liberals have long reviled — and misrepresented. To understand why the court correctly decided Lochner v. New York and why this is relevant to current arguments, read David E. Bernstein’s Rehabilitating Lochner: Defending Individual Rights against Progressive Reform.

As they say, read the whole thing. (And to preempt the inevitable question, I really have no idea how Will came across the book. Also, you might want to check out this recent podcast I did with the folks at the New Ledger.)

Will gives a concise summary of some of the major themes the book, and I’m obviously pleased with the favorable attention. I do have two quibbles/caveats: First, while I don’t object to anyone concluding after reading the book that Lochner was correctly decided, I don’t make that argument. I instead limit myself to arguing that Lochner was a reasonable decision given precedent, constitutional text, and the legal, intellectual, and political culture of the day–but so was Justice Harlan’s (but not Justice Holmes’s more famous) dissent.

Second, it’s true that liberals have traditionally reviled Lochner, and Lochner-bashing seems to be in particular fashion on the left of late as folks on the left contemplate a modern Supreme Court dominated by what they consider right-wing judicial activists. But it’s also true that for the last several decades, conservative jurists have been, if anything, even more anti-Lochner than their liberal counterparts. As I’ve mentioned before, when I’ve talked about the book at law schools, my only vociferous critics have been conservatives, while liberal commenters have ranged from very supportive to at least open-minded. (And see this review by conservative lawyer George Liebmann, and my response).

More generally, with regard to the Fourteenth Amendment one can see modern liberal jurisprudence as something of an amalgam of Progressive hostility to restrictions on economic regulation combined with a Lochnerian concern for limits to the states’ police power, with Lochner-era decisions such as Meyer v. Nebraska and Pierce v. Society of Sisters reinterpreted, expanded, and revised to suit modern liberal sensibilities. It’s conservatives like Robert Bork, by contrast, who have fully accepted the traditional Progressive critique of Lochner, and disclaim use of the Fourteenth Amendment to restrain state power in just about any context; Justice Scalia, for example, seems to think that Pierce, which prevented states from shutting down all private schools, was wrongly decided.

Conservative hostility to Lochner will likely remain fierce so long as abortion rights remains a constitutional controversy (and the looming same-sex marriage controversy doesn’t help). I don’t think that accepting Lochner’s rehabilitation implies that Roe v. Wade was correctly decided–heck, it doesn’t even imply Lochner was correctly decided–but a lot of conservatives seem to, and Roe is to them as Moby Dick is to Captain Ahab. Anything that potentially undermines the case against Roe, including treating Lochner like a normal case and not a symbol of all that’s wrong with American jurisprudence, is unacceptable. On the other had, both National Review and Commentary have published favorable reviews of my book–not to mention Will’s column–so maybe there’s hope that the caricaturing of Lochner in conservative legal circles is nearing an end.

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