EVENTS

Date:	Friday, April 22, 2005
Time:	10:15 AM -- 12:00 PM
Location:	Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036

April 2005

The Supreme Court: Lochner at 100--Still Crazy after All These Years?

In Lochner v. New York (1905), the Supreme Court--discovering a right to contract in the Fourteenth Amendment--invalidated a New York statute setting maximum working hours for bakery employees. A century later, Lochner still stands as one of the most widely despised decisions in the Court’s entire history. Conservatives denounce it as a prime example of “substantive due process” run wild--judicial invention paving the way for Roe v. Wade (1973) and its offspring. With equal fervor, liberals criticize the Lochner Court’s perceived attempt to write laissez-faire economics into the Constitution. But does Lochner deserve its lousy reputation? Or are these modern perceptions a product of dubious historical scholarship? What exactly is Lochner’s legacy? These and other questions were considered at an April 22 AEI conference.

Michael S. Greve
AEI

1905 was a year of great writings and great accomplishments. Einstein’s “General Theory of Relativity” appeared that year. Sigmund Freud published three well-known works, including a fragment of an analysis of a case of hysteria, fittingly enough. And Justice Rufus Peckham offered his opinion in Lochner v. New York (198 U.S. 45, 1905), alongside Oliver Wendell Holmes’s famous dissent. Both authors would have been absolutely astounded at the notoriety and longevity that their handiwork would achieve. In due course, the jurisprudence of Lochner ran headlong into the New Deal’s plan to increase the demand for labor by raising its price, which was such a rousing success that the unemployment problem was finally solved in 1941 by Admiral IsorokuYamamoto.

Somewhere along the way, Lochner came to stand as a symbol of an entire era. To one side, it stands for a menacing laissez-faire activism, which is now on the verge of resurrection just as soon as Judge John Roberts gets around to it. And the other side contends that Lochner has long been resurrected, as that particular stone was rolled aside in 1973 and out came Roe v. Wade (410 U.S. 113, 1973). We are here to discuss the once and for all true meaning of Lochner v. New York and the strange trajectory of this unassuming little case.

David E. Bernstein
George Mason University School of Law

Until recently, the Lochner-era justices were portrayed as reactionary social Darwinists who sought to impose a laissez-faire system on the public. More recently, revisionist historians have attempted to construct a more historically grounded understanding of the Lochner era. I will argue that Lochner-era police power cases--involving the Supreme Court’s interpretation of liberty protected by the due process clause of the Fifth and Fourteenth Amendments--were motivated by the belief that due process protected fundamental, unenumerated constitutional rights.

There had always been a strong strain in American constitutionalism of belief that the delegated and enumerated federal powers were further constrained by an unwritten constitution of natural rights. The post-Civil War innovation was to argue that this unwritten constitution was judicially enforceable against the states. As early as 1878, the Supreme Court stated that the due process clause prohibits the violation of private rights by the states. A few years later, the Court identified the due process clause and the law of the land clause of the Magna Carta as bulwarks against arbitrary legislation, guaranteeing not particular forms of procedure, but the very substance of individual rights to life, liberty, and property. Thus, as early as the 1880s, the Court explicitly recognized what is now known as substantive due process. Critics called it judicial usurpation. Nevertheless, by the time the Court decided Lochner, the debate was not over the enforceability of unenumerated constitutional rights under due process, but over how vigorously these rights would be enforced against the states.

The source of the fundamental rights recognized by the Supreme Court during the Lochner era was the American natural rights tradition tempered by a historicist perspective. There was no set formula to determine what rights were central to the Anglo-American people, but post-bellum legal theorists believed that the right of liberty of contract, along with general limitations in the scope of police power, was implicit in the evolutionary history of the liberty of the Anglo-American people. By the very late 1800s, this right had evolved in part into a right to pursue an occupation free from all unreasonable government interference, monopoly, et cetera. Nevertheless, the Supreme Court had routinely upheld labor regulations, so Lochner came as quite a surprise to most legal observers. Critics accused the Court of turning traditional Anglo-American hostility to grants of monopoly power by the government into liberty of contract. But despite the relative radicalism of Lochner itself, the police power jurisprudence developed by the Court was far from dogmatic. If you look at Lochner-era decisions, most forms of labor regulation were upheld, and other traditional police power functions usually trumped liberty of contract even though the restriction at issue technically violated natural rights principles.

Substantive due process was not naturally limited to economic liberties, but in the late 1890s and early 1900s when socialism seemed like the greatest risk to liberty, the Court naturally emphasized liberty of contract. After World War I, with the egregious violations of civil liberties that occurred under President Woodrow Wilson, the rise of the second Klan, and the rise of authoritarian ideologies imported from abroad, the Court explicitly expanded the protections of the Fourteenth Amendment’s due process clause to what we would call civil liberties. That expansion began with Meyer v. Nebraska (262 U.S. 390, 1923), in which the court invalidated a Nebraska law that banned the teaching of German in private schools and by private tutors. Decisions followed over the next few years invalidating laws banning private schools, forbidding the teaching of Japanese in Hawaii schools, banning the display of the communist flag, et cetera. These cases were not First Amendment or Fifth Amendment cases: they were due process cases involving the infringement of fundamental liberties, and they often cited Lochner as the leading precedent.

The classical liberal foundations of Lochnerian jurisprudence ultimately 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, with statism ascendent across the globe in the form of communism, Nazism, fascism, and social democracy, each of which had its share of admirers in the United States, the Court’s commitment to limited government and classical liberal thought seemed outlandishly reactionary to most of the public.

Jeffrey Rosen
George Washington University School of Law

Why has Lochner become a bogeyman for liberals and conservatives while other more jurisprudentially vulnerable decisions of the era have escaped this sort of popular censure? Why Lochner as opposed to Slaughterhouse (83 U.S. 36, 1873), for example? Slaughterhouse is the decision that everyone, to quote Robert Bork, “agrees was wrongly decided.” When I teach Slaughterhouse, I find students who are earnest in attempting to correct constitutional mistakes wondering, “How is it possible that a decision so inconsistent with text and history could stay on the books?” The answer is that Slaughterhouse had no political constituency determined to overturn it; because there was no strong base for challenging the basic framework of class legislation jurisprudence, Slaughterhouse happily remained on the books for a long time.

On the other hand, when Lochner was decided there was no special sense that the Court had applied the wrong categories. It became a bogeyman because the theories on which it rested became hotly contested after the fact. Progressives in the legal academy and in the media expressed the initial concerns about Lochner, but it was not until the 1920s that the criticism really began to gain steam. (If you look at the number of court-curbing bills that were introduced in the 1920s, you have a sense of how a political movement that has not yet commanded a majority can begin to try to express its views in Congress.) It was not until the New Deal that efforts to apply the old laissez-faire categories inspired a meaningful and national political backlash; in West Coast Hotel Co. v. Parrish (300 U.S. 379, 1937), the Court’s abandonment of “the old laissez-faire nostrums” could not have been more plain. It was not that the old doctrines were wrong in Lochner or that the Court was crazy in 1905 to try to apply them, but at a time when they no longer represented the constitutional views of a majority of the American people, the Court found that deference was the better part of wisdom.

There is a rhetorical part of the story as well. While Justice John Marshall Harlan’s dissent is much more convincing legally, Justice Holmes’s dissent approaches a kind of radical judicial abstinence consistent with his general view that if the people of the country want to go to hell, he will help them. He does not even engage the debate of the majority or the dissent; he sweeps it all away with his magnificent aphorisms. The Fourteenth Amendment “does not enact Mr. Herbert Spencer’s Social Statics.” As opposed to the vague abstractions of legalisms, Holmes makes the thing concrete by choosing this book (an unusual, esoteric book with an unfamiliar title) and with that personalization and that precision, he makes the thing real and provides a rallying cry for opponents of the decision. Without Holmes’s aphorisms, Judge Learned Hand and Justice Felix Frankfurter could not have begun their assault on Lochnerian jurisprudence that finally bore fruit in the 1930s.

G. Edward White
University of Virginia School of Law
 
What animated the majority in Lochner and in the jurisprudential evolution of liberty of contract? Bernstein emphasizes the prepolitical natural rights strand of Lochner. A second strand derives from the theory of free labor going back to the Jacksonians with its chief manifestation in the principle that a legislature cannot take property from A and give it to B unless it has a public-regarding reason to do so; one must be deeply suspicious of legislative interest groups that favor one class over another. Bernstein is interested in minimizing this strand of the Lochner revisionist historiography because he wants to sweep other unenumerated rights decisions in with the liberty of contract cases, thereby buttressing some modern decisions protecting personal autonomy, and giving them more of a constitutional heritage. These historical autonomy cases--grounded in the due process clause--are jurisprudentially akin to Lochner, and that fact is sometimes obscured by the Court’s later work in the areas of the First Amendment and incorporation. Bernstein’s emphasis is well taken but goes too far in minimizing this anti-class principle.

It is important to understand that in a constitutional challenge to a statute that discriminates against one class of actors in the community without a sufficient public power justification, you do not need an equal protection clause because the due process clause includes within it not just the idea of prepolitical natural individual rights, but also the idea of anti-class legislation. The third strand in Lochner, then, has to do with the judiciary’s new role in scrutinizing state legislation. Because of the proliferation of state police power legislation in the late nineteenth and early twentieth centuries and because of the reconstruction amendment clauses, the judiciary began policing the boundary between permissible public power legislation and impermissible legislative invasions of private rights. There were two categories: legislation that offended the anti-class principle and, therefore, transgressed on prepolitical natural rights; and legislation that was justifiable because it was public-regarding and designed to protect all citizens.

As the Court works through these questions of police power and the commerce clause, you see the development of an elaborate doctrinal structure, not unlike what we now see in First Amendment cases with varying levels of scrutiny. The application of these doctrinal formulas involves the kind of glossing of the Constitution which was hitherto regarded as a necessary part of the judicial role: the discernment and employment of the Constitution’s animating principles. But when a line of criticism emerges that portrays judges as lawmakers, capable of pouring their ideology into open-ended constitutional provisions, the exercise of glossing constitutional provisions--such as liberty of contract or liberty of expression--is identified as illegitimate. And combined with a general critique of constitutional invalidation of legislation designed to regulate economic activity or redistribute economic benefits, you have political motivation for criticizing this judicial role and ammunition to declare the role illegitimate.

As this more deferential judicial posture harmonizes with attitudes toward political economy that are more sympathetic to regulation and redistribution, a new role is carved out for the Court, and Lochner looks like the old bad way to do things. It is judges running amok, substituting their ideological views for those of legislatures and violating the counter-majoritarian edict. The new orthodoxy of deference especially in economic regulation cases becomes so entrenched that by 1965 in Griswold v. Connecticut (381 U.S. 479), the Court preferred to go through an elaborate penumbral analysis, drawing rights from enumerated rights against the backdrop of incorporation, rather than lose the appearance of deference by resurrecting Lochner.

Moving into the present, the revisionist literature has done its work in recreating the understandings behind Lochner so that the jurisprudence of the resulting line of cases can be taken more seriously. And there has been another political shift in our attitudes toward economic regulation and redistribution of economic benefits. We no longer reflexively think that government solves all problems. We have moved to a different era, and now Lochner looks less stigmatic.

AEI research assistant Kate Rick prepared this summary.