Rubenfeld on Lochner:

In Revolution by Judiciary, Yale Law professor Jed Rubenfeld notes that the "Lochner era" Supreme Court invalidated several federal labor statutes on the seemingly reasonable grounds that they were beyond Congress' delegated power under the Commerce Clause. The Court held that Congress was regulating intrastate labor, not interstate commerce. But, Rubenfeld adds,

The embarrassment was that when the Lochner Court dealt with state labor statutes of the very same kind, the Court would strike down these measures too. The implication of the Lochner Court's "federalism" cases was that the regulation of bargaining, of wages, or of the hours of employment was constitutionally confided to exclusive state legislative control. Yet when the states attempted to exercise this control, the Lochner Court did not let them.

To support his claim, Rubenfeld cites Lochner itself, plus a case in which the the Supreme Court invalidated a state ban on "yellow dog contracts" (as it had also done to a similar federal law), and one in which the Supreme Court invalidated a D.C. (not state) minimum wage law.

Rubenfeld concludes that Lochner era jurisprudence was a "constitutional joke" that "did not deserve to be taken seriously as constitutional interpretation." Rather, the Court was simply "anti-anti-capitalist," and especially fearful of the socialistic tendencies of labor unions (something of an odd claim, given that few successful American labor unions were ideologically socialist during the AFL and Railroad Brotherhood-dominated Lochner era).

Rubenfeld's thesis is a bit of a challenge for me. I'm writing a book on Lochner in which--while certainly not denying the influence of ideology and historical circumstance on Supreme Court decisionmaking--I do take the Lochner line of due process cases seriously as constitutional interpretation, and in which I treat the federalism cases as entirely jurisprudentially separate from that line. Moreover, Rubenfeld's harsh view of Lochner era jurisprudence, while perhaps expressed more pungently than others have, seems to be reasonably common on both the liberal left and the conservative right.

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