Quick Response to Amar

I’m busy today teaching two classes, but I can’t resist a quick response to Akhil’s rejoinder.

First, while I have a great deal of respect for Jed Rubenfeld and Laurence Tribe, I don’t find their adoption of the “Lochner as redistribution” thesis terribly compelling.
Professor Tribe’s 1972 article adopts a surprisingly sophisticated understanding of Lochner–surprising only because Lochner scholarship was still in its infancy at that time. But Tribe, by necessity, didn’t have access to the wave of scholarship that has been published since, mostly by Ph.D. historians, who try to avoid the normative concerns that typically animate law professors. Beyond my own work, this literature includes, just for example, David Mayer, Liberty of Contract (2011); Mark Warren Bailey, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860-1910 (2004); Barry Cushman, Rethinking the New Deal Court (1998); James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller: 1888-1910 (1995);Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993); Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (1992); William E. Nelson, The Fourteenth Amendment (1988); Michael J. Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s (2000); G. Edward White, The Constitution and the New Deal (2000); Charles W. McCurdy, The Roots of “Liberty of Contract” Reconsidered: Major Premises in the Law of Employment, 1867-1937, 1984 Sup. Ct. Hist. Soc’y Y.B. 20; Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 L. & Hist. Rev. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L Rev. 1 (1991); and Barry Cushman, Some Varieties and Vicissitudes of Lochnerism, 85 B. U. L. Rev. 881 (2005).

Rubenfeld’s 2002 article, meanwhile, cites none of this literature, and indeed nothing at all to support his point of view beyond a couple of leading cases. This reflects something of a culture clash between historians, including historians who work at law schools, and constitutional theorists. The former engage in serious historical investigation to try to discover the underlying intellectual and social forces that led the Supreme Court to decide cases as it did. This involves both reading a very broad range of cases, and also secondary materials. Law professors, by contrast, tend to read a few leading cases from an era–like Lochner, Coppage v. Kansas, and Adkins v. Children’s Hospital–and then draw broad conclusions about what was wrong (or right) with the Court’s jurisprudence. (Sunstein’s famous article on Lochner, for example, cited fewer than a dozen cases.) Although my only degree in history is my undergrad degree, I side with the historians on this. To put it another way, I’m less interested in using cases to illustrate theoretical points, and more interested in getting the history right.

Akhil has done some great historical work, so I’d love to see him more deeply engage with the vast historical literature on Lochner, rather than cite theorists like Tribe and Rubenfeld. While law professors love to cite (and to my mind, often misinterpret) cases like Lochner and Coppage, the picture necessarily becomes far more nuanced when one considers the more obscure cases of the era. On the issue of whether the pre-New Deal Court was motivated by hostility to “redistributive” legislation, consider that the Court never interfered with welfare-type legislation, widows’ pensions, inheritance taxes, and the like. The Court also generally upheld antitrust laws, which were among the most blatantly redistributive of laws, as they were seen as aiding small businesses at the expense of large corporations.

Even if one limits things to the category to labor regulations, as early as 1898, the Court made it clear that states could regulate employers to alleviate inequalities in bargaining power. In Holden v. Hardy, Justice Brown (importantly, a member of the Lochner majority), wrote for a 7-2 majority that upheld a maximum hours law for miners that “the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting.” The “proprietors lay down the rules, and the laborers are practically constrained to obey them.” In such cases, Brown wrote, “the legislature may properly interpose its authority.”

Not surprisingly, the Court consistently upheld workers’ compensation legislation, one of the more radical Progressive reforms of the days. These included laws that required employers to pay into a state workers’ compensation fund instead of simply paying for their own employees’ injuries; permitted an employee’s recovery for disfigurement with no loss in earnings ability; required employers to pay into a state workers’ compensation fund when an employee without heirs died on the job; required that compensation for a worker’s death be paid to the decedent’s relatives who were citizens of, and lived in, another country; required payment of compensation to workers injured on their way to work; and restricted the fees attorneys could charge in workers’ compensation cases. The Court also upheld the federal Jones Act and the federal Longshoremen’s and Harbor Workers’ Compensation Act.

The Court also upheld laws forbidding the employment of children below the age of sixteen in certain hazardous occupations; regulating the hours of labor of women and of men in industrial occupations when overtime work was permitted; regulating the width of entries to coal mines; requiring coal mines to maintain wash houses for their employees at the request of twenty or more workers; making mining companies liable for their willful failure to furnish a reasonably safe place for workers; requiring that coal miners’ pay be based on car loads of coal they produced; requiring railroads and mining companies to pay their employees in cash; requiring railroads to pay wages due an employee on discharge regardless of contrary contractual agreement; requiring coal produced by miners be weighed for payment purposes before it passes over a screen; giving preferences to citizens in public works employment; regulating the wages and hours of workers employed on public works projects; the payment of seamen’s wages in advance; regulating the timing of wages paid to employees in specified industries; and mandating an eight-hour day for federal workers or employees of federal contractors. The vast majority of these decisions were unanimous, and, among the exceptions, almost all of the dissenting votes came from Justices Brewer and Peckham, the only two Justices of the time who more or less consistently voted to restrain government power. Moreover, the vast majority of laws obviously geared to worker and public health and safety, including bakery regulations that accompanied the hours law at issue in Lochner, were so obviously constitutionally unobjectionable that they never resulted in constitutional challenge.

The Court did invalidate one specific category of laws that might be considered redistributive: laws that it believed had no purpose other than to aid labor unions. For example, the Court twice invalidated laws that prohibited employers from forbidding their employees to join labor unions. Not surprisingly, this raised the ire of leading Progressive lawyers of the day who strongly favored unions. (Herbert Croley, friend and publisher of Learned Hand, Louis Brandeis, and Felix Frankfurter, wrote that “nonunion industrial laborer . . . should be rejected as emphatically if not as ruthlessly as the gardener rejects the weeds in his garden for the benefit of fruit and flower-bearing plants.”)

But the conflict between Progressive jurists and the Supreme Court, then, was not over whether inequality of bargaining power could justify government regulation of labor markets, but over the appropriate remedy. The Court’s critics advocated union-led social democracy in place of a regime of general contractual freedom. A majority of Justices, by contrast, approved of ameliorative legislation directly addressing what they saw as oppressive corporate labor practices, but believed that preserving a general presumption of liberty of contract was both constitutionally required and served workers’ interests (as Justice Pitney expressly argued in Coppage v. Kansas). They further believed that labor unions were monopolistic and potentially oppressive.

One can certainly argue that it wasn’t the Court’s place to take sides in such a pressing and controversial social issue, and one in which they had little real expertise. That, in fact, was the classic Progressive critique of the Court, since adopted by modern conservatives. But modern liberals are less enamored of that critique, because it could equally apply to the Court’s involvement in abortion or gay rights. It’s far more comfortable to claim that the Court was wrong because it opposed “redistribution,” which is no longer a serious constitutional controversy, than to acknowledge that the Justices were trying to preserve liberty as they understood it, which is at the heart of modern liberal constitutionalism.

None of this is to say that Lochner itself, or other liberty of contract cases, were correctly decided. But to have an informed debate about that, I think we need to know what the Court was actually doing. And that requires an immersion in the historical literature.

[I know this is long for a quick response. If I had more time, I would have written a shorter one.]

UPDATE: I should note that Tribe later took on the argument that the liberty of contract cases, like Roe, simply reflected the Court’s contemporary understanding of liberty. He wrote that “Lochner’s downfall did not represent a denigration of economic liberties but a recognition that such liberties were not meaningfully protected by the ‘free’ market” and that “the error of [the liberty of contract cases] lay not in judicial intervention to protect ‘liberty’ but in a misguided understanding of what liberty actually required….” Laurence H. Tribe, American Constitutional Law § 15-13, 769, 1374 (2d ed. 1988).

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