Professor Thomas Ross, reviewing Constitutional Law Stories in the Journal of Legal Education, has this to say about my chapter on Lochner v. New York:
“At one point Bernstein actually manages to suggest a connection between the ascendance of the Nazis, the collapse of Lochner, and the rise of the New Deal. (Discerning and unpackaging that rhetorical excess would be a really nice student exercise.)”
Fortunately, Ross provides in a footnote the relevant quotation from my chapter, which I’ve reprinted below, except with the ellipses he uses replaced with the actual text in bold:
“The classical foundations of Lochnerian jurisprudence, however, could not survive the strains of the Great Depression With almost no support among the intellectual class, with the unemployed and underemployed clamoring for government intervention and with statism ascendant across the globe in the forms of fascism, communism, and social democracy–each of which had its share of admirers in the United States–the Court’s commitment to limited government classical liberalism* seemed outlandishly reactionary to much of the public. The Court’s Lochnerian view that libertarian presumptions were fundamental to Anglo-American liberty became unsustainable as the Depression wore on, with many Americans blaming the purported laissez-faire policies of previous administrations for the continuing economic crisis.
Given the lack of intellectual and public support for Lochnerism, its demise was inevitable, but still required a change of personnel on the Court. President Hoover, a Progressive Republican, put the first nails into Lochner’s coffin by appointing to the Court Justices Charles Evan Hughes, Owen Roberts, and Benjamin Cardozo, each of whom had views well to the left of the conservatives who dominated the Court in the 1920s. By 1934 a majority had formed willing to broadly expand the “affected with a public interest doctrine” to the point where just about any regulation of prices was constitutional. After a short period of resistance to the more extreme aspects of the New Deal, the end of the “Lochner era” was signaled when in 1937 the Court reversed Adkins and upheld a minimum wage law for women.
[By the late 1930s]President Franklin Roosevelt sealed Lochner’s fate by appointing a series of New Dealers and other political allies to the Court.
So somehow, with a tendentious use of ellipses, not to mention the confusion of Naziism [never mentioned in my chapter] with Mussolini’s fascism (which did indeed have many American admirers), the unremarkable point that a combination of declining intellectual support for classical liberalism, the economic crisis of the Great Depression, and the general ascendance of statist ideologies undermined the classical liberal foundations of American constitutional law as reflected in Lochner is summarized as “a connection between the ascendance of the Nazis the collapse of Lochner, and the rise of the New Deal.” I leave to the reader to discern who is engaging in rhetorical excess.
*There should have been an ellipsis here, but there wasn’t.
Comments are closed.