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

April 22, 2005

Unedited transcript prepared from a tape recording

10:00 a.m.	Registration
10:15	Panelists:	David E. Bernstein, George Mason University School of Law
		Jeffrey Rosen, George Washington University School of Law
		G. Edward White, University of Virginia School of Law
	Moderator:	Michael S. Greve, AEI
Noon	Adjournment

Proceedings:
MR. GREVE:  I'm Michael Greve with the American Enterprise Institute and its Federalism Project.  Thank you all for coming.  Thank you all for taking time out from Earth Day.

We will have a spirited discussion I think about one of the country's most controversial Supreme Court decisions.  Regardless of how spirited it becomes, we'll have to vacate this room at 12 o'clock because The New Times photographs are coming to take Jeff Rosen's pictures, and I assure you you don't want to be near that.

1905 was actually 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.  Of course, Justice Rufus Peckham offered his opinion in Lochner v. New York, and Oliver Wendell Holmes penned his famous dissent.

I think it's fair to say that both the author of this decision and quite probably the author of the famous dissent would have been absolutely astounded at the notoriety and longevity that their handiwork would achieve.  In due course, the Lochner opinion or the jurisprudence of Lochner ran headlong into the program of the New Deal which was to increase the demand for labor by raising its price, was such a rousing success that the unemployment problem was finally solved in 1941 by Admiral Yamamoto.

Somewhere along the way Lochner came to stand as a symbol as an entire era.  I remember a long, long time ago when I studied constitutional law, any debate about anything in law came down to one or two things.  If you said the most vaguely critical thing of the Supreme Court or a recent decision, somebody will pipe up and say, What about Brown v. Board, and that was a debate stopper.

The other sentence that came to people's minds was, that's just like Lochner, but that was never a debate stopper because, of course, both sides hold very contrarian or opposite views of Lochner.  To one side, Lochner stands for a menacing laissez-faire activism which is now on the verge of resurrection just as soon as Judge Roberts gets around to it.  And the other side contends that, of course, Lochner has long been resurrected, that particular stone was rolled aside in 1973 and out came Roe v. Wade.

We're here to discuss the once in for all, true meaning of Lochner v. New York and the strange trajectory of this unassuming little case.  I'm pleased to say that we have three really leading experts on this issue here to talk to us and with us today.

We'll go in alphabetical order.  David Bernstein is a professor at George Mason Law School and has been there since 1995.  He has written extensively on Lochner and the legacy of Lochner and the legacy of Lochner's legacy.  Some of his articles are displayed there in the back.

Jeff Rosen probably needs no introduction.  He is a professor at George Washington Law School and the legal affairs correspondent for The New Republic and has written extensively on constitutional law.

Ted White comes to us from the University of Virginia Law School.  He is one of the nation's most renowned legal historians and, among other things, which is not mentioned in the brief bio that you have, but I want to mention it here, the author of a, to my mind, just terrific book on the New Deal's constitution.

Each speaker will go for about 15 to 20 minutes, and then we'll open it up for discussion.  David?

MR. BERNSTEIN:  Thanks, Mike.  Until recently, the legal community's understanding of the Lochner era was clouded by myths left over from the ideological and political battles of the Progressive and New Deal eras.  In particular, the Lochner era justices were portrayed as reactionary social Darwinists who sought to impose a system of laissez-faire on the public.  I'm sure many of you have heard this before.

More recently, revisionist historians have strongly challenged and I would say disproved this and other myths and have attempted to construct a more historically grounded understanding of the Lochner era.

Controversy still remains over exactly what motivated the Supreme Court's Lochner era police powers jurisprudence.  Many legal historians have concluded that the Court was primarily motivated by hostility to so-called class legislation or special-interest legislation.  I've criticized the class-legislation thesis.  You could actually, if you want, pick up a reprint of my Texas Law Review article and learn about it.

I'm not going to talk about that today.  Instead, I'm going to make the positive case that Lochner era police power cases, the 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 what we would today call fundamental, unenumerated constitutional rights, although they didn't use that exact phrase.

The justices had a generally historicist outlook and they sought to discover the content of fundamental rights through an understanding of which rights had created and advanced liberty among the Anglo-American people.

Considering the origins of Lochner, we must consider the state of constitutional theory after the Civil War.  Post Civil War lawyers when they thought about American constitutionalism argued that just England had an unwritten constitution, so did the United States.  In the United States it was simply one that complemented the written Constitution, where as in England, of course, there was no written Constitution.

There had always been a strong strain in American constitutionalism suggesting that the federal government as one of delegated and enumerated powers was constrained not only by the written Constitution but also by unwritten natural rights.  The post Civil War innovation was to argue that the United States unwritten Constitution was also incorporated by the Fourteenth Amendment which was of course passed right after the Civil War and was, therefore, judicially enforceable against the states through the Fourteenth Amendment despite the states' police powers.

The existence of an unwritten American Constitution was accepted even by those who denied that the judiciary had the power to enforce its terms.  They argued, yes, there is an unwritten American Constitution just like there's an unwritten English Constitution, but as in England, it's for the legislature to exhibit self-restraint, not for the courts to enforce.

On the other hand, other commentators such as American Christopher Teterman (ph) and British theorist A.V. Dicey insisted that the very genius of the American constitutional system was precisely that it allowed judicial review to enforce libertarian norms not explicitly enumerated in the Constitution.

As early as 1878, the Supreme Court stated in--that the due-process clause prohibits the--of private rights by the states.  A few years later, so we're already in the early 1880s, the court noted that while due process or the law of the land clause of the Magna Carta was applied in England only against executive usurpation and tyranny, in the U.S. they are "also bulwarks against arbitrary legislation.  They must be held to guarantee 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 but what was known then as substantive due process under the Fourteenth Amendment.

Critics argued that the allowing the courts to protect unenumerated constitutional rights under due process amounted to judicial usurpation.  Nevertheless, by the time Lochner was decided there was a broad consensus around this issue, that everyone pretty much agreed that the Fourteenth Amendment's due-process clause did protect these rights.

The source of the fundamental rights recognized by the Supreme Court during the Lochner era was the American natural rights tradition tempered by historicist perspective.  The justices' historicism along with its concerns for federalism and overstepping of judicial bounds limited the scope of enforceability of natural rights to those that were considered fundamental to the Anglo-American heritage of liberty.  Moreover, the Court would only step in when the violation of natural rights was done in such a way that it went beyond the states' traditional police powers.  So you'd have two things, the violation of natural rights and a violation in such a way that it was beyond police powers.

Let's talk about natural rights theory.  Natural rights theory in my rendering refers to the idea that individuals possess prepolitical rights that antedate positive law and that can be discovered through human reason.  These influenced the Lochner era police powers jurisprudence in general, but liberty of contract in particular.  The dissents of Justices Field, Bradley and Slaughterhouse, so crucial to the development of the liberty of contract idea were laden with natural rights rhetoric.

For example, Field wrote that "It is to me a matter of profound regret that the statute's validity is recognized by a majority of this Court, for it is by the right of free labor the most sacred and prescriptible rights of man is violated.

While Field lost on this particular case, of course, Slaughterhouse was 5 to 4 the other way, just 1 year later Justice Samuel Miller speaking for all but one justice stated that "There are rights in every government beyond control of the state.  The theory of our government is state and national is opposed to the deposit of unlimited power anywhere."   State courts expanded upon the Supreme Court's natural rights rhetoric, often citing the Slaughterhouse dissents as if they were majority opinions and they started to overturn various kinds of state regulation, especially labor regulation.

Justice Field retired in 1897, and Bradley before that, but Justices Brewer and Harlan continued their natural rights advocacy.  Harlan, for example, wrote that there are limitations on all organs of government which "grow out of the essential nature of all free governments."  Brewer, meanwhile, argued that liberty of contract is "among the unalienable rights of the citizen."

By the time the Court decided Lochner, there seems to have been a virtual consensus among the justices that the due-process clause did indeed protect unenumerated fundamental rights.  Most of the justices had indeed authored dicta to that effect.  Even Justice Oliver Wendell Holmes, if you read his Lochner dissent carefully, acknowledges that a law would be unconstitutional under the due-process clause if "a rational and fair man would necessarily admit that the statute imposed would infringe fundamental principles as they have been understood by the traditions of our people and our law."

So as Holmes's comments suggest, 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.  Whether there should be presumption of constitutionality, and if so, how strong, Holmes was in favor of an extremely strong presumption strong presumption of constitutionality, Harlan's dissent less so, and Peckham's majority even less so.

On to historicism.  There was no set formula to determine what rights were central to the Anglo-American people, but postbellum legal theorists believed that the rights of liberty of contract along with general limitations in the scope of police power were implicit in the evolutionary history of the liberty of the Anglo-American people.  I won't quote it in detail here, but if you read Justice Bradley's dissent in Slaughterhouse, it's a model of combining natural rights rhetoric with an historicist outlook.

This right in Slaughterhouse was recognized as the right to be free from government-sponsored monopoly, whereas by the time Lochner came around, this right had basically evolved into a right to pursue an occupation free from all unreasonably government interference, monopoly or no.

This shift was helped along by the dissents of Justice Field in several major cases and the labor unrest and populist agitation of the period.  It was thought that to protect Americans from imminent socialism and what-not that the constitutionalization of free enterprise would help guarantee the perpetuation of Anglo-American liberty.

The right to pursue an occupation was of course a subsidiary of the more general right to liberty of contract.  Justice Field's nephew David Dudley Field published an overtly historicist defense of liberty of contract in the employment context in 1893.  He reviewed the history of Anglo-American liberty, talked about the abolition of primogeniture, the emancipation of women, the abolition of debtors' prison, and finally he said the apex of the development of liberty, the abolition of slavery which established "the right to labor when, where and for such reward as the laborer and his employer may agree to between themselves."

In 1894, following a series of state court opinions recognizing the right to occupational liberty, Supreme Court Justice Henry Brown wrote that "The legislation may not under the guise of protecting the public interest arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations."  In 1895 Justice Brewer stated even more broadly that "Generally speaking, among the unalienable rights of a citizen is that of liberty of contract."

By 1897 we get the famous Allgeyer v. Louisiana case written by Justice Peckham, the author of Lochner, stating the Fourteenth Amendment includes "The right to the citizen to be free from the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his living and livelihood by any lawful calling," et cetera, a very broad description of liberty of contract.  Note that contrary to popular belief, Allgeyer was not the first opinion to endorse liberty of contract, it was at least the third, and the other two were written by two other justices.

Nevertheless, all of these statements including Allgeyer were dicta, and the Supreme Court had routinely upheld labor regulations usually by a 7 to 2, 9 to 0, or at least a 6 to 3 vote, so Lochner came as quite a surprise to most legal observers with some justification.  Many early Lochner critics argued that liberty of contract became constitutional law by mere judicial assertion and that the doctrine had dubious roots in natural rights theory.  It of course did have roots in natural rights theory.  Whether they were dubious or not is a matter of opinion.

Critics accused the court of turning traditional Anglo-American hostility to grants of monopoly power by the government into the dogma into the liberty of contract.  But despite the relative radicalism of Lochner itself, the Lochner era police power jurisprudence developed by the court was far from dogmatic.  As mentioned earlier, Lochnerian jurisprudence was tempered by the norm that the scope of judicially enforceable fundamental rights was limited to what was necessary to maintain the practices and norms that were essential to the establishment and growth of Anglo-American liberty.  And, moreover, they were limited by police powers considerations which in practice meant that the court would often invoke common-law doctrines that limited the invocation of individual freedom which it was necessary to limit it for the perceived social good.

So as it turns out, if you look at Lochner era decisions, most forms of labor regulation were upheld, bans on lotteries and other forms of gambling including options trading which was considered gambling and maybe still should be, Sunday laws, regulation and prohibition of alcohol, and other traditional police power functions traditionally trumped liberty of contract even though the restriction at issue technically violated natural rights principles.

On the other hand, there was nothing in the Lochner era due-process jurisprudence that inherently limited its protection to the economic sphere.  So 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 and the egregious violations of civil liberties that occurred under Wilson and 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 today we would call civil liberties and to what was then just considered other liberties under the Fourteenth Amendment.

The expansion of Lochnerian jurisprudence to civil liberties began with Meyer v. Nebraska which was written, by the way, by Justice McReynolds, one of the great Lochnerians of the court, in which the court invalidated a Nebraska law that banned the teaching of German in private schools and by private tutors.  McReynolds wrote a very sweeping opinion holding that due process protects not just the right of the individual to contract, but "to also acquire useful knowledge to marry, to establish a home and bring up children, and to worship God according to the dictates of his own conscience along with other privileges long recognized by common law as essential to the orderly pursuit of happiness by free men."

Two years later in Gitlow v. New York, the court for the first time suggested that freedom of expression is directly protected against the states by the Fourteenth Amendment.

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.  All of these cases were considered cases involving the infringement of fundamental liberties protected by the due-process clause.  They were not considered to be First Amendment cases or Fifth Amendment cases or what-not, or equal protection cases, the way they'd been reinterpreted by the modern courts.  They were very clear if you read the opinions that they were based on the protection of due-process rights under the Fourteenth Amendment and they often cited Lochner as the leading precedent supporting them.

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, Naziism, Fascism, and social democracy, each of which had its share of admirers in the United States, the court's commitment to limited government, classical liberal thought, seemed outlandishly reactionary to most of the public.

The court's Lochnerian view that libertarian presumptions were fundamental to Anglo-American liberty became unsustainable as the Great Depression wore on, with many Americans blaming the purported laissez-faire policies of previous administrations for the continuing economic crisis.

It's widely known, but it was really the Hoover justices that signaled the end of Lochner, not the Roosevelt justices, or at least the more expansionary forms of Lochner, and then Roosevelt after Hoover both filled the court with progressive justices who preferred a "more approach to constitutional law," Lochner was doomed with only the civil liberties Lochnerian cases of the 1920s, as I mentioned, reinterpreted by the court to be First Amendment and equal-protection cases living on as valid precedents.

The theme of this question was supposed to be is it still crazy after 100 years, so it's hard to see ultimately where you get Griswold from, and even harder to see where you get Casey from if you don't go back to Lochner and understand the origins of these cases and being in the due-process clause of the Fourteenth Amendment protecting unenumerated rights.  Row is more extreme than Lochner because it even recognized really a police power interest unlike Casey.  Casey is much more along the lines of Lochner.

I would say that if you think that Griswold and Casey aren't crazy, it's hard to think that Lochner is crazy even if you think Griswold and Casey are crazy given that if you have an historicist perspective, the rights recognized by Lochner were more fundamental and historically based in Anglo-American civilization than the right to abortion, for example, then you could still think that Lochner isn't crazy.

MR. GREVE:  Thank you, David.  Jeff?

MR. ROSEN:  Happy birthday, Lochner.  I'm very happy to be here, and especially to be invited by Michael who is despite the suggestion of that terrifying photograph, the most mild-mannered fellow imaginable.  Whenever I tell friends how much I like him and they express doubt that such a friendly person could really be calling for the resurrection of Lochner and be the head of a conspiracy to do so, I just point that I've just been invited to a panel by him celebrating Lochner and calling for its resurrection in a conspiratorial way.  So that's a delightful fact as well.

Michael asked me to address a simple question, why Lochner?  Why has it that Lochner has become a bogeyman for liberals and conservatives until recently while other decisions of the era, more jurisprudentially vulnerable, have escaped this sort of popular censure?

I want to begin by asking why Lochner as opposed to Slaughterhouse, for example?  Slaughterhouse is the decision that everyone, to quote Robert Bork, "agrees was wrongly decided," everyone on both sides of the political spectrum.  I see a contingent from the Institute of Justice here.  They've done heroic work over the years trying to call for the overturning of Slaughterhouse and to point out its flaws.

I find when I teach Slaughterhouse there's much more sympathy among students for the Institute for Justice's position than there is for Lochner.  Students are confused and appalled that a decision so transparent inconsistent with the text, history and structure of the Constitution could remain on the books and not be overturned.

The historical evidence only recently amassed by scholars such as Akila Mahr (ph) and Michael Kent Curtis and others have proved convincingly beyond reasonable doubt that the conventional wisdom that the privileges and immunities clause does not incorporate the Bill of Rights was impossible to square with the explicit understanding of the reconstruction Republicans.  Quotations from John Bingham standing up in Congress and saying, "Mr. Speaker, it was my intention to overturn Barron v. Baltimore by precisely choosing the words of the privileges and immunities clause that I did and thus make explicit Congress's intention to incorporate the Bill of Rights have been persuasive and unanswered."

I find students who, especially at an early stage in their careers, 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 I suppose is that Slaughterhouse had no strong political constituency determined to overturn it.  As we know, the controversial part of the decision was not its ruling on incorporation which by the time the case was decided had little constituency after the end of reconstruction, and the internecine debate about the application of class legislation jurisprudence between the majority and the dissenters and even among the dissenters, between Bradley and Field, was well within the scope of accepted legal discourse.  You could disagree about whether or not the Crescent City Butchers had in fact been granted a monopoly, and Herbert Hovenkamp of course has argued very convincingly that far from being an illegitimate form of class legislation, the effort to require a grand centralized Slaughterhouse, that all economic competitors could have access to on equal terms, was a way of helping often African-American freed men who had been excluded by a local monopoly.  So there was a convincing case that this was perfectly legitimate.

But because there was no political constituency for challenging the basic framework of class legislation jurisprudence, Slaughterhouse happily remained on the books for a long time.

This brings us to Lochner.  Why Lochner?  Why has it become the bogeyman for liberals and conservatives?  And why, despite the valiant efforts of revisionist historians like my friend and classmate David Bernstein has mainstream legal thought been uninterested in returning to the original understanding of the decision and trying to resurrect it?

Bernstein's distress is palpable and poignant.  His articles, Lochner's Legacy, the Legacy of Lochner's Legacy, the Legacy of Lochner's Legacy's Legacy, can indeed be read on the coffee table, and if you don't to read them there, you can read his blog where on a daily basis he expresses outrage and shock that more people aren't paying attention to his important ideas.

He was especially exorcised by a recent article I wrote in the Times in which he suggested it was unthinkable, inexplicable, that I wouldn't address all of his important arguments and give them the broad audience that they deserved.  Why didn't I recognize that he was right, he asked again and again and again, and you can read him blogging about it more this afternoon I'm sure if you'd like to continue the debate.

There are a number of possibilities for why people have paid less attention to Bernstein's ideas than Bernstein believes that they should.  One possibility is the ideas are wrong, that they're just not interesting and that, therefore, they have found little audience in mainstream legal academy.  I don't think that's right because I know Bernstein and find his ideas very interesting and provocative as an academic matter.

Another possibility is that there is indeed a liberal conspiracy in the media and in mainstream academic thought generally to suppress the true story of Lochner and to ensure that progressive dogma reigns supreme.  I won't talk about media conspiracies when it comes to the photography department of the New York Times, about which I have no control.  But I do control the words that I write and I can assure that my failure to cite Bernstein's important work had nothing to do with an effort to suppress it or felt that it wasn't academically interesting.  I didn't cite it because it would be inconceivable in an article about the political legacy of Lochner to focus on its original understanding and to assume dogmatically as Bernstein has asserted again and again and again that merely by returning to the original understanding of the Fourteenth Amendment and also to certain natural law's conceptions of limitations on government the case could be gotten right.

That would be a silly thing to do.  It would be inconceivable.  It would be both journalistically silly and also it would make no sense in terms of a legal narrative because it misses the lesson of Lochner and it really misses, of course, the reason that Lochner has become a bogeyman and Slaughterhouse has not.

Lochner became a bogeyman not because the theories on which it rested were ridiculous during the time.  On the contrary.  They made good sense during the time.  It became a bogeyman because the theories on which it rested became hotly contested.  Theories that were once broadly accepted by the legal culture soon became less than broadly accepted by the legal culture.

Of course, the account of the reception of Lochner very precisely tracks the political climate of the times.  When Lochner was decided, there was no special sense that the Court had applied the wrong categories and, indeed, Justice Harlan's dissent was a far more conventional criticism of the decision than Holmes's more aphoristically memorable but less doctrinally rigorous response.

It was progressives, indeed, in the legal academy and in the media who expressed initial concern about Lochner.  Ted White will tell us more about this than I can, but I do know that Learned Hand who at the time was an editor of The New Republic, and Felix Frankfurter were especially exorcised by the progressive era decisions and criticized Lochner and companion decisions such as Allgeyer in The New Republic in an effort to drum up opposition to them.

It wasn't until, however, 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 hasn't yet commanded a majority can begin to try to express its views in Congress.

The progressives introduced a series of bills that interestingly looked not dissimilar to some of the ones that are being introduced nowadays by conservative Republicans to strip the courts of jurisdiction, to require a two-thirds vote to overturn an act of Congress, and also to introduce constitutional amendments in economic cases.  They lost because at the time they had not yet won a majority of the country.  It was still a period of Republican dominance in the Congress and in the presidency and there was not majority support for the kind of constitutional revisionism that they were attempting to put forward.

It wasn't until the New Deal and the story that we all know too well to be repeated that efforts to apply the old laissez-faire categories inspired a meaningful and national political backlash.  This backlash was explicitly noted in the decisions from Lochner.  In West Coast Hotel the court's thinking couldn't have been more plain.  "The economic reality," said the court, "had dislodged the old laissez-faire nostrums that there was an equality of bargaining power between labor and capital" and that it was no longer thought that the indignities of the sweating system, which is one of the more resonant adjectives in court history, would be adequately served by application of the old categories.

Therefore, in the face of contestability, the court decided that judicial deference was appropriate.  It wasn't that the old doctrines were wrong when decided 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.

I think there is a rhetorical part of this story as well.  Again, Professor White will cast more light on this than I can.

There is something about Holmes's dissent which of course is less convincing legally than Harlan's dissent.  I always find myself agreeing with Harlan entirely.  He doesn't reject the category of class legislation.  He says, indeed, the job of courts to distinguish between legislation and the public interest and legislation that represents a naked wealth transfer from one group of competitors to another.

Harlan says that as long as reasonable people can disagree about whether or not the law in question is a form of class legislation or a law in the public interest, judges should defer in the form of contestability which is most precise and convincing formulation of the judicial restraint position for the time that could be imagined.

Holmes is much more radical.  He does approach a kind of radical judicial abstinence consistent with his general view that if the people of the country want to go to hell, I will help them.  As he said, "It's my job."

It's of course often noted that if were writing a law school exam, he may be flunked because he doesn't quite the ordinary judicial categories, he doesn't attempt to apply them.  He doesn't 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."  What is so spectacular about that phrase?  Why is it, although perhaps wrong and inconsistent with Holmes's own views, one of the finest and most effective phrases in Supreme Court history?

First of all, it's the precision of the phase.  How would a clerk have written the phrase or how would it be written if it were done today:  "The Fourteenth Amendment does not require the require the government to distinguish between legislation in the public interest and legislation that is self-oriented because heretofore we will recognize that generally people can disagree about these reasonable matters," with five footnotes to a lot of doctrine.  As opposed to the vague, imprecise abstractions of legalisms, he makes the thing concrete by choosing this book, an unusual book, an esoteric book with an unfamiliar title--name for an author, he personalizes it.  With that personalization, with that precision, he made the thing real and provided a rallying cry for opponents of the decision.

It's also the glib overstatement that's important, too:  "Just the other day we decided the case upholding compulsory vaccination," that elegant aphoristic ease unencumbered by the kind of rigid categories that the majority was struggling over gives the thing an authority that no other decision has had.

Ultimately, he expresses a broad and convincing statement about the nature of the theory of our government which is made for people with fundamentally differing points of view which in decent enough time would come to exemplify the progressive critique against the old jurisprudence.  So it's important on a bunch of levels.

It's important as a reminder of the importance of--it's important because it reminds us of the need to have a constituency.  Without Holmes's aphorisms, Hand and Frankfurter couldn't have began their assault on Lochnerian jurisprudence that wouldn't bear fruit until the 1930s.

But most of all, of course, Lochner is a reminder of the importance of deference, of contestability and the great folly of overconfidence, of ever assuming that old formalistic categories can be rigidly applied merely because they at one time had been embraced and damn the consequences.

What's going to happen next?  Whether or not Michael is, as I believe, the most important and influential political figure in the country today, and whether or not he succeeds in transforming our legal understanding of the centerpiece of a grand conspiracy whose scope can only begin to be imagined as I hope and expect, we are at the cusp of a debate which has to do with the transformation of legal culture.  There are indeed people, Michael and David among them, who would like to differing degrees and in differing ways resurrect these classical understandings because they're right, whether or not they are accepted.

Michael has a sophisticated understanding of this.  He is a scholar of the court and agrees with the great Robert McClosky who understood that the court in the end can nudge or apply small brakes, but it can never meaningfully thwart the wishes of a determined national majority, and when it attempts to do so, it often provokes backlashes that hurt the causes it attempts to help.  This is the lesson of all the great cases of the 19th and 20th centuries without exception.  Therefore, if it were the case that a court in the short rather than the long term were to attempt to resurrect Lochnerism with a vengeance, there is no reason for a moment to expect that the results would not be just as counterproductive for conservatives and would be just as much--victory, that there wouldn't be just as much of a political whirlwind has happened the last time around.

Things can change dramatically, and perhaps in the course of good time the political climate can be transformed in a way that it is more sympathetic and conducive to Lochnerian ideas, but I believe as strongly as I can, and with everything I've studied about the court convinces me that to attempt to complete and consummate this revolution in the courts before it's persuaded a majority of the American people, the legislatures will reap a whirlwind that conservatives will come to regret.  Thank you very much.

MR. GREVE:  Thank you, Jeff.  I won't get a chance to respond, but David will in due course.  Quoting my favorite Jeff Rosen line which was the other day on the Diane Rehm Show where we were together, "I could tell you who else is in with me in this conspiracy, but I would have to kill you."  Ted White?

MR. WHITE:  It's always a little daunting to have a panelist suggest that one is going to say more about issues when one doesn't have any intention of saying anything about those issues.

PANELIST:  You could if you wanted to.

MR. WHITE:  I want to do a couple of things.  I first want to respond in part to something that David didn't really say but has emphasized in his work by way of trying to get what I think is a more rounded picture of the constitutional ideology that animated the majority in Lochner and in the decisions from which liberty of contract evolved.  Then I want to say a little bit about why that particular ideology, which I agree on its face has no particular reason to be regarded as illegitimate, had a rough patch starting in the 1930s and extending through at least up until the last decade; that is, why Lochner went from a period of orthodoxy to a status of notoriety.

First, about the ideology that's underpinning Lochner.  I think that David perhaps for his own purposes is anxious to emphasize what he called the prepolitical natural rights strand of Lochner, that is, the idea that there are inherent in human citizenship certain natural rights and that those rights are held against the state, the states cannot interfere with them, and that the rights emerge in a constitutional framework as liberties some of which are defined in the due-process clause, some of which are inferred more generally from readings of due process.  That is to say, they're not specifically mentioned in the constitutional text, but they are part of the understanding behind what liberty is.

I don't disagree that this prepolitical strand is important and animating decisions like Lochner, but I think it's not the only strand, and I think for some reason of his own, David is anxious to minimize the existence of one other strand and then to ignore the existence of a third, and so I want to say a little bit about those two.

The one that he seems anxious to minimize is the strand that I think derives from the theory of free labor which goes back to the Jacksonians and has its principal manifestation in the principle that a legislature cannot take property from A and give it to B unless the legislature as a public-regarding reason to do so.  That's traditionally been called in revisionist literature, and by revisionist literature I mean exactly what David has meant, I mean literature that's trying to discredit the stereotype of Lochner as a decision that simply rests on laissez-faire ideology, social Darwinism, if you will, and is nothing more than a judicial ideology.

The revisionist Lochner literature that David has actually been criticizing suggests that there is a strand in Lochner which is understood as perfectly orthodox and not emanating from social Darwinist ideology but, rather, from this Jacksonian notion that one needs to be deeply suspicious of interest groups in the legislature that favor one class over another.  So when legislation is couched in the form of police power regulation, one has to look more carefully and ask whether it is in fact the transfer of property from one interest group to another, and that is an important theme in Lochner majority.  Lochner uses the language of liberty of contract, but it also uses the language of taking rights from one group and giving them to another.

The statute in Lochner according to Peckham's opinion is not a public-health measure.  It is simply advantaging one class of industrial workers in the baking industry at the expense of their employers, and there is no particular public reason to do so.  The public as a whole does not benefit from this.

This is quite orthodox and conventional reasoning at the time and it doesn't take on the tinges of social Darwinism.  Indeed, its origins are in a more libertarian early 19th century set of ideas and would have been regarded at the time as "conservative."

I think the reason that David is interested in minimizing this strand of the Lochner revisionist historiography is because he wants to sweep in along with the liberty of contract decisions other enumerated rights decisions, decisions such as Meyer v. Nebraska, Pierce v. Society of Sisters, which talk about liberties of expression, liberties of communication.  They are not grounded in the First Amendment, they are grounded in the due-process clause, and they are part of the same package of prepolitical liberties.

I think that it's appropriate to see that line of decisions as jurisprudentially akin to Lochner, and these decisions to some extent are obscured by the court's later fascination with the First Amendment and developing jurisprudence under the textual language of the First Amendment and then incorporating the Bill of Rights into the due-process clause of the Fourteenth Amendment.

The line of decisions that Pierce and Meyer represent are actually preincorporation decisions.  They are simultaneous to the Gitlow decision that incorporates the First Amendment speech clause for the first time, and they actually come out of an older 19th century tradition that liberty of contract comes out of.

I think what David's agenda is is to buttress some modern decisions protecting personal autonomy in various respects that are not related necessarily to economic autonomy, and giving them more of a constitutional heritage.  I think that's appropriate, but I think in the process, he seems anxious to minimize the anticlass principle, what he calls of principle of neutrality strand, and I don't think that's necessary.  I just think that's another component to the ideological package that--

[End Tape 1, side A, begin Tape 1B.]

MR. WHITE:  The other thing that's important about Lochner alluded to in David's remarks is that after the reconstruction amendments, the judiciary assumes a new role and the role that it assumes is one of policing state legislation under the due-process and equal-protection clauses.

It's important to understand that you don't need the equal-protection clause to have a constitutional challenge against a statute that discriminates against one class of actors in the community without a sufficient public power justification; that is, without a sufficient health, safety or morals justification so that all citizens are comparably advantaged by the legislation.

You can use, if let's say this is a federal legislation based on the commerce clause instead of police power, the due-process clause to invalidate this legislation.  You don't need an equal-protection clause because the due-process clause includes within it not just this idea of prepolitical natural individual rights, but the idea of anticlass legislation.

So it isn't really necessary in the line of cases that Lochner is a part of, the police power cases, to use the equal-protection clause literally, but you can draw on the principle of equality through the due-process clause.

Indeed, if you look at commentary and judicial opinions in the 1920s, there is all kinds of language that suggests that due process and equality are overlapping constitutional values.  The clauses intersect and in some ways combine the two principles.

The third strand has to do with the judiciary's new role in scrutinizing state legislation.  Because of the proliferation of state legislation based on police power in the late 19th and early 20th centuries, and because of the reconstruction amendment clauses, the judiciary assumes a role of what Chief Justice Taft describes in a decision in his dissenting in Atkins in 1923, as policing the boundary between permissible public power legislation and impermissible legislative invasions of private rights.  The judiciary is putting legislation in or another category.  It's legislation that either offends the anticlass principle and, therefore, transgresses on prepolitical natural rights, or it's legislation that's justifiable because it's public regarding and designed to protect all citizens, not just favor the interests of some against the interests of others.  The court has hundreds and hundreds of cases in which it engages in this methodology, not just the more celebrated line of liberty of contract cases, but rate regulation cases, commerce clause cases, all sorts of cases where there's legislation, the court has to make these distinctions and they prick at, as Taft said, they prick at the boundary.

What happens is that as the court does a lot of work, it puts itself a little bit in the position analogous to the court in deciding First Amendment cases in the late 20th century.  In the First Amendment area, the court has scrutiny levels, strict scrutiny, intermediate scrutiny.  It also has within the scrutiny levels means ends analysis.  So there are various steps that the court walks through in speech cases.  Political speech cases are not the same as commercial speech cases.  Cases involving subject matter or content discriminations are not the same as content-neutral discriminations.  The methodology is very refined.  It has categories and subcategories.

The same thing is going on with police power and commerce clause cases in the early 20th century.  When you have this elaborate doctrinal structure, you tend to get doctrinal formulas that help the court make clarifications and put cases on one or another or on the boundary, and the formula of business affected with the public interest is one such that the court uses in police power cases.  The formula of direct versus indirect effects on commerce is another formula.

When you have these formulas and the court is applying them, there are opportunities to invalidate legislation on more than one level.  One of the things the court does in decisions in the 1920s is they will take legislation and they will say, the first question is, Is this affecting a business rather than the public generally?  Yes, it does seem to be affecting business.  Is it affecting a business that is affected with the public interest?  Yes, it is.  So, therefore, it's presumptively constitutional.

However, and then this is sort of a refinement, there are some instances of legislation where the legislature even though it's regulating a business that's affected with the public interest, is doing so in so heavy handed and indiscriminate a fashion that the means are unconstitutional.  There's a hilarious sequence of cases where the Nebraska State Legislature attempts to regulate the bread industry.  What they want to do is they want to limit the weight of bread.  So they get a bunch of experts that they produce, weights-and-measures bureaucrats who come in and testify about how this bread is too heavy and it's affecting the consumer, and they don't have any bread experts.  The bread industry comes in and says, there are three things we can do to make the bread lighter and they're all bad.

The court says the bread industry itself is a food industry, it affects the public generally so it's affected with the public interest, so normally this would be public-regarding legislation.  It doesn't seem to be taking money from one industry and giving it to another.  However, this is a ridiculous piece of legislation because it's asking the bread industry to fundamentally change what bread is about and produce an inferior product.  There is a line of decisions along that line.

There's a whole elaborate superstructure of jurisprudence that's been built up under this overriding constitutional ideology including both prepolitical rights and the anticlass principles.  As I said, it's entirely orthodox, it's not particularly controversial, then what happens is that the role that the court assumes in this implementation of interpreting the due-process and equal-protection clauses becomes thought of as illegitimate because it amounts to judicial law making, judicial glossing of the Constitution hitherto regarded as incumbent in the judicial role, necessary; the Constitution has these animating principles; the role of the judge is to apply these foundational constitutional principles to cases, and that's what judges do.  That's what they're good at.  They discern and apply principles to cases.

When a line of jurisprudential criticism emerges that suggests that that's not exactly what judges do, what judges do is make law themselves, they're a species of law makers, and they're, therefore, capable of pouring their ideology into these open-ended constitutional provisions, then the exercise of glossing constitutional provisions such as liberty of the due-process clause as liberty of contract or liberty of expression, becomes identified as illegitimate.  When you combine that with a general political and social critique of constitutional invalidation of legislation designed to regulate economic activity or redistribute economic benefits, when, in short, you move into the Progressive and New Deal era, then you have political motivation for criticizing this judicial role and then you have some ammunition to declare the role illegitimate.

It's at this point that you get judges including Holmes championing judicial deference and propounding the theory that legislation and presumed to be constitutional if there's any rational basis for it that the judiciary should stay out.

Jeff Rosen cited Harlan as an example of judicial restraint.  That's not this version of judicial restraint.  Harlan is operating within the universe.  Harlan's dissent in Lochner, Harlan's decisions in Mugler v. Kansas, Harlan's jurisprudence is the older line of police power boundary pricking, he just happens to be on the whole more on the side of legislative regulation than some on the court.  But he is not a restraintist in the mode of Stone or Frankfurter or members of the Warren Court in the sense that when you have economic and social legislation you just keep hands off.

What happens is that as this more deferential judicial posture animated by a chastened theory of judges as law makers, harmonizes with more political attitudes toward political economy that are more sympathetic to regulation and redistribution, then a new sort of role is carved out for the court, and Lochner looks like the old bad way to do things.  It's judges running amok substituting their ideological views for those of legislatures, violating the countermajoritarian edict.

The new orthodoxy of deference especially in economic regulation cases becomes so entrenched that by 1965 in Griswold v. Connecticut which is right along the lines of David's older unenumerated liberty cases, a case that conventionally would be regarded as involving private activity and not the sort of thing, or at least would be a highly contested police power case if Griswold had come up, Griswold might well have gone the other way had it been adjudicated let's say in 1910, but not because there was no right of privacy because the state interest in morals would have been regarded as quite fundamental.

But Griswold in 1965 is a different problem.  Griswold in 1965 invites the court as Douglas says to resurrect Lochner, and so Douglas declines to resurrect Lochner and instead goes through this elaborate penumbral analysis drawing rights from enumerated rights against the backdrop of incorporation which is by then an established judicial doctrine.

As an aside, let's consider what is the analytical difference between in selective judicial incorporation of the Bill of Rights and substantive due process?  If the problem with Lochner is that judges are selectively reading liberty, then how is that any different from judges selectively reading some Bill of Rights as incorporated and other Bills of Rights as not?  It's the same exercise.  The court never acknowledges that it's the same exercise.

As we move then into the present, I think what's happened is the revisionist literature has done its work in demonstrating that the stigmatization, the caricature of the Lochner line of cases is a product of a New Deal and New Deal-inspired generation of historians who are really just reacting to the results and then characterizing the judicial methodology as a naked ideology because they believe that judges are political figures, behaviorists who make law.  What the Lochner revisionist literature has done is recreate the understandings behind Lochner so that the jurisprudence of the Lochner line of cases can be taken more seriously.

Then, of course, the other thing that's happened is there has been another political shift in our attitudes toward economic regulation and redistribution of economic benefits.  We now no longer reflexively think that government solves all problems, that government should intervene in markets necessarily, that there are no individual economic rights against the state and so on.  We've moved to a different era.  As we've moved to a different era, Lochner looks less stigmatic.

Jeff warned direly that if the court resurrects Lochner, there will be the same kinds of difficulties that the court faces whenever it engages in a so-called activist, freewheeling interpretation of the Constitution, and he cites Brown v. Board as an example.

I gather your point is that sooner or later the country, the average citizen, determines what is the constitutional mainstream, when judges get too far away from the constitutional mainstream they're going to get into trouble, and that's the risk of resurrecting this sort of aggressive judicial scrutiny, let's say, of legislation.

I'm inclined to take just the opposite view which is that Jeff's premise is correct, which is to say that the court cannot escape the culture in which it's situated, and the boundaries on the court are in a sense boundaries dictated by the culture.  Consider the transition from Bowers v. Hardwick to the Lawrence case.  Bowers v. Hardwick was handed down at a time when there was a contested view on sexual-preference decisions, and Lawrence came down in a period when that culture had shifted and rank discrimination against people on the basis of sexual preference seemed less palatable.

The court can't escape that sort of trend, but I don't think it follows from the fact that the court is imbounded, if you will, by culture that the court should adopt a stance of restraint.  I think that whether or not the court adopts restraint isn't the question.  The question is, What are the acceptable boundaries of constitutional ideology at any particular point in time?  And they happen to change as the history of Lochner suggests.

If Lochner is due for a revival, I don't think we should worry overmuch about it.  Thank you.

MR. GREVE:  Thank you very much.  I will give all of the panelists a chance to discuss amongst themselves and to respond to one another starting with David, and then we'll move to Q and A.  David?

MR. BERNSTEIN:  I'll start with Professor White's remarks.  I generally agree with what he said, except I would argue that I don't have any, the question is self-serving so take it with a grain of salt, but I don't have any particular agenda in emphasizing the natural rights sorts of origins of Lochner over the class legislation origins.  I acknowledge that certainly class legislation never ceased to play a role in the sense that you can never justify something under police power by saying we want to just help this group of people at the expense of everybody else.

But in fact, if you read my earlier work on Lochner, I had read Howard Gillman's very interesting book on Lochner and other work including professional--and I was persuaded by the class legislation argument.  But then when I reread at least the cases that Gillman relies on for my more recent work, I just thought he misread many of them.  He would often have a partial quote and then at the end of the sentence he'd say, "which means," but if you read the opinion it became clear it didn't mean that.

So I do agree, though, that the cases I'm talking about are really what I would call the Lochner line of cases, Atkins, Lochner and also the Meyer, Pierce and Atkins v. Kansas and what-not.  But there are other cases that are considered part of the Lochner due-process jurisprudence, the weight regulation cases Professor White mentions, the cases that involve really property under the due-process clause as opposed to liberty, and I would agree that in those cases the class legislation, don't take from A to give to B element, was predominant, I just didn't happen to be focusing on those previously and perhaps I probably should have made that more explicit in my work.  Also I've just seen Professor White's colleagues, Barry Cushman's paper basically agreeing with much of what I've said, but then saying but he doesn't emphasize class legislation enough, and I would agree if nothing else that probably some of the justices even in Lochner itself were motivated by class legislation even if that wasn't predominant.  So I think Barry makes a very persuasive case that you could explain Justice McKenna who seemed to keep switching around, he was in the majority in Lochner but he was in the majority upholding hours laws in 1917, but then he was again in the majority striking down minimum wage laws in Atkins v. Children's Hospital.  So he was the decisive vote in each case, actually, and you could explain his votes by his hostility to class legislation.  So a point well taken more generally.

As far as what Jeff said, Jeff gave the impression, I think, that I'm on a singular one-person crusade to revise the story of Lochner.  I think it's fair to say that I am just one of many people interested in legal history who have been working on this.  Professor White is one of them.  Howard Gillman I mentioned, Barry Cushman, Jim Ely, Willy Forbath.  There are a few other people who I could mention.

The question is, Does it matter?  I wrote my Texas piece which is back there criticizing Cass Sustein's theory of Lochner which you may be familiar with and I won't get into here.  Cass's response which was very generous in The Texas Law Review was, "Yes, David is right about the history, but who really cares about the history?  What's really important is the story we tell about it because that's what really matters for current constitutional argument.  It may very well be what matters for current constitutional argument, but I want to tell you why I think it does matter that we get the history of Lochner right.

First of all, it's just grating to me to hear people say that Lochner was laissez-faire, Lochner was this and that.  Imagine you're someone who is very liberal and people say the Warren Court was socialist.  They'll say you want a socialist?  I'll show you socialism.  The Warren Court wasn't socialist, which is a pretty good analogy, I think.  Clearly, the majority of the Warren Court were much more sympathetic to redistribution than previous or later courts were or than the American even was at the time.  But does that make them socialist?  No.

The same thing with Lochner.  They were clearly more hostile to government power and some kinds of regulation than prior courts or later courts have been and are, but that doesn't make them laissez-faire in any meaningful way--was certainly not recognized as a state that would arise out of Lochner as being an anarchic state or an utopian state.  I like accuracy for the sake of accuracy.

Two more reasons why it's important we get Lochner right.  First, that the critique of Lochner, the standard story is that you have a bunch of reactionary social Darwinist justices running amok is just part of the standard justification for New Deal constitutionalism.  You could justify New Deal constitutionalism in a variety of ways and there have been creative ways to do it, but to argue that it's always been the way things are, and this was the way the Constitution was written, this is what John Marshall intended, this is what James Madison intended, and there's this bunch of evil reactionary social Darwinists who came along and screwed things up and then there was the restoration during the New Deal is just an example I think of politicized law professors, historians and political scientists serving the role of functionaries of the New Deal state.

It's not just with Lochner.  There is a brilliant book by Ken Kersch which I urge you all to read, and you should invite him to speak here, actually, Mike, called Constructing Civil Liberties, where he points out that the post-New Deal intellectual elite did the exact same thing with rights to privacy and other rights.  They made up a story about what jurisprudence always was, how there was this evil Lochner group that screwed things up and then we got the proper right to privacy.

He points out, for example, that the right to privacy in Griswold is exactly the opposite of the right to privacy which was actually called the right of publicity in those days in Justice Brandeis's famous article in 1897.  Justice Brandeis actually argues that you can't take a picture of someone and then write about how you saw them at a party last night in the gossip column because that violates your right of privacy.  So it's exactly the opposite of the sort of First Amendment right to privacy we have now, yet liberals have constructed the story where it all fits in in one way.

So that I see it as sort of if not an intentional at least a subliminal attempt to justify political arrangements that suit the people who wrote the story, and for the sake of proper academic debate we shouldn't accept that story as being valid unless it really is.

Finally, I think that the traditional Lochner story is used to delegitimize libertarian or conservative, depending on the situation, ideas more generally.  So if you're going to say that all the Lochner jurisprudence is just made up, it didn't have any origins in American tradition or in American constitutional thought and it was, again, just serving the ruling class, serving the corporate interests, reactionary social Darwinism, laissez-faire, then you could just lump all the ideas of the pre-New Deal court together and say there's no difference between the commerce clause cases, the due-process cases, the incorporation cases and everything else and just say this was all "laissez-faire" jurisprudence.  If you do that, you don't have to then debate which of these decisions were actually right or not on an individual basis.

For example, I pretty much on most days I think when I think about it, I think Lochner was wrongly decided and I actually like Jeff prefer Justice Harlan's dissent under the circumstances.  However, I think that the New Deal cases on the commerce clause are just absolutely and clearly wrong and a lot more clearly wrong than anything about Lochner.  Quite obviously the commerce clause was not meant to be interpreted and does not on its face in any way relate to what the court said in Wicker v. Filburn which is that the federal government could basically regulate anything.

But if you just lump this all together as laissez-faire jurisprudence of a single reactionary laissez-faire ill, then you avoid having to have this debate and you are able to not only avoid having that debate, but discredit any kind of modern libertarian or conservative thought by just saying you let those people in, give them any authority to start thinking about the Constitution again in a way that makes them powerful people as in judges or justices, they're going to bring back, what did The New York Times article say, there won't be child labor laws anymore, there won't be any regulation of the environment, the whole world will go to hell in hand basket.

So if you think it's going to be a bunch of reactionary, unthinking libertarian ideologues reviving similarly reactionary, unthinking laissez-faire ideologies of 100 years ago, then you could get away with that.  But if you actually look back and say these were actually sophisticated legal thinkers who were operating within the context of the legal thought of their time, then it becomes a lot more complicated.

MR. GREVE:  David, you left out Social Security and the Federal Reserve which are also--Jeff?

MR. ROSEN:  I have to stress one more time, I had nothing to do with the photographs and nothing to do with the headlines.  That is not in the journalist's--and the piece itself I hope was not an effort to portray reactionary libertarians but a respectful and I hope fair-minded depiction of one of the most important intellectual movements in the country today.  That was the effort.

I wanted to clarify the view with which Ted White took issue because I think we don't in fact disagree.  I did not claim that because the court tends to follow the election returns, judges should generally engage in judicial restraint, if restraint is defined neutrally as an effort to uphold most federal and state laws.  I argued that courts should generally follow popular constitutional understandings, and when they don't they're likely to provoke backlashes that may hurt the causes they attempt to help.

So at the moment we're seeing attacks on the judiciary on both sides of the political spectrum.  Conservatives assail activist judges who have struck down school prayer and have engaged in abortion apostasy, liberals are attacking conservative judges who are activists in economic matters.

The truth is that both of these forms of judicial activism, as Mark Tushman (ph) argues in his good new book, are popular with majorities of the country as a whole.  The Rehnquist Court has been activist and sided with liberals in cultural matters, and with traditional conservatives in economic matters because both of these views are popular with the country as a whole.

The danger of Lochner is not just the danger that if the courts were to resurrect economic judicial activism it would necessarily provoke a backlash, it all depends on the political climate.  If Lochner were resurrected at the moment, this would be the worst thing that could happen to economic libertarians in the same way that efforts to impose gay marriage by judicial fiat have been in some ways the worst thing that has happened to advocates of gay marriage.

It's entirely possible that in the course of time with more presidential and congressional elections we might see a shift in popular economic understandings that would make the climate conducive to a revival of economic libertarianism.  But if we've learned anything from Lochner, it is that efforts to achieve this through the courts ahead schedule are dangerous.

Brown is certainly not one of my examples of judicial unilateralism.  Brown was popular with a narrow majority of the country and resisted only by minorities in the South.  Row is of course the cautionary tale for unilateralism, of an attempt to impose too broad a vision of autonomy that the country didn't accept.

And Row is the link to the second point I want to make in my response, and that's my response to David.  We haven't talked yet about the problem for conservatives which is the problem of textualism.  They're really in a bind right now.  Because of the Holmes dissent, Lochner wrongly, I agree with not only David but all the many historians whose works I've cited and learned from, come to be seen as a case that was illegitimate because it made up liberty of contract that was not in the Constitution.  And there's no doubt.  Obviously, no one who studies this history can disagree that there was broad historical support at the time both for a principle of class legislation that prohibited laws designed to take property from A and give it to B, and also of a natural rights tradition that would derive these liberties from prepolitical forms.

But conservatives for better or for worse bought into the Holmesian critique, and especially in the wake of Row, staked their entire jurisprudential philosophy on a vision which changes shapes and forms in different hands.  It is sometimes called strict constructionalism, it is sometimes called originalism, and sometimes called textualism, even though all three of these visions clash dramatically with each other and can often lead to different results in different cases.

That's why you guys are in a bind with Lochner.  Textualists must reject it because it is based on unenumerated rights, originalists might plausibly support it because there's certainly very strong evidence that for the common-law reasons that Ted White described there was broad acceptance of the anticlass legislation principle at the time that the Fourteenth Amendment was framed, but this just tears the whole philosophy apart at its seams.  Justice Scalia to his credit has retained his own allegiance to textualism over originalism and continues to repudiate Lochnerism with a vengeance.

But an effort by less-restraint-minded libertarians to check the entire allegiance to textualism and to try to resurrect economic activism because of a hotly contested vision of history that was ascendent briefly in the 19th century but became less so today would lead to legitimate charges of hypocrisy.  So I think this is something that conservatives will have to address, and the bottom line is that the problem with Lochner was neither a problem of textualism nor originalism, it was a problem of contestability.

MR. GREVE:  I want to get to that, but I just want to pursue this for one minute and to be clear.  Just like David, just like Jeff, I am actually an admirer of Justice Harlan's opinion in this case.

I want to get clarity from you, Jeff, on the following.  When you say deference, how far does that go and how far are you willing to go before all of that deference in the face of contestability collapses into the Holmesian position after all?  And I think we agree once you're into the Holmes position it's hard to see how you can have any--or constitutionalism at all.

Let me give you two cases along the way that may focus this a little.  One is the decision in New State Ice Company v. Liebmann, as Professor White has explained, is famous for its dissent by Justice Brandeis which is canonical in its own way  second only to the Holmes dissent.

What you have there is a law by a state enacted for no reason other than the monopolization of the ice trade.  Nobody seriously disputes that in the case.  The--majority opinion strikes the law down and says in effect, you give us any public interest reason whatsoever for this law, we'll uphold it.  Because haven't even made any allegation that there's any purpose other than monopolization per se, we have no choice but to strike that down.

Is that also an example of--overreach?  If you don't like that, move forward three more years to 1935, the Blaisdell decision, which is a contract laws decision.  There you have an actual text and you have a law which is a debtor relief law which is not kind of vaguely sort of the law against which the contract clause was enacted, it was the law which--the contract laws was enacted.

In that case, should we also throw up our hands and say deference, deference, deference?  In other words, once you embark on that, I see the difficulty in sort of pricking the boundaries as Ted White says because the real danger is you jump too fast which is sort of on this view now what happened in Lochner.  But once you say let's not jump too fast, why is that at the outer limits different from saying let's not jump at all?

MR. ROSEN:  The debate between Holmes and Harlan made sense at a time when the scope of the limitations on power were contested.  It makes less sense today to talk about returning to the pin pricing approach that Ted White described merely because the economic premises on which the whole model of economic class has depended or uprooted by the reality of the Depression.

It was in Blaisdell, after all, that the court explicitly said that the old assumption that debtors and creditors could compete on equal terms was no longer sustainable in light of modern economic experience.

I'm not inherently committed to complete Holmesian deference.  As a descriptive matter, I am convinced by everything I know about American legal history that when the court tries to impose a constitutional vision that is intensely contested by current national majorities, it's going to provoke backlashes and get into trouble.

I suppose you could take baby steps.  You could dip in your toe.  You could see whether the current Congress would support a bit of tinkering around the edges, a bit of pin pricking.  And I know that this is a project, too.  No one is foolish enough to try to get the whole loaf immediately.

But it would be hazardous and dangerous because at least since the New Deal the conventional understanding has been that this was not the business of judges, and it's made much harder by the fact that you've backed yourselves into a corner by committing yourself to this vision of textualism which is very inconsistent with this vision.

Even your bugaboo, Cass Sustein, is not completely averse to some degree of rational basis review.  In his article about the Williamson v. Lee Optical decision, that silly case where they made up a preposterous justification for the law favoring opticians which was clearly a naked wealth transfer, Sustein like Walter Dillinger (ph), and other moderate liberals has said perhaps laws that are patently, transparently, inexplicable by anything else than an effort to favor one group of economic competitors over another might be resurrected, and the Institute for Justice guys are nodding because you've been playing out these cases, and I think your victories which are so sympathetic to all of the wonderful and deserving entrepreneurs that you have protected are perfectly legitimate examples of judicial activism and descriptively you've successful in not provoking backlashes because that idea of nibbling around the edges is plausible in the current climate.

I don't have to committed to Holmesian deference, although I lean towards it, but I'm just saying be very, very careful, and do come up with some explanation for how you're going to get out of the corner into which you've inadvertently been painted.

MR. BERNSTEIN:  I have a couple of comments on these issues.  First, it seems to me that the question really isn't which methodology, whether one methodology is superior to another, it's just that judges need to deal with the problem of constraint.  Judges have to deal with the problem of constraint because for better or for worse, they're perceived of as powerful figures that are not constrained essentially by the law.  That is, we have passed the jurisprudential stage where we believe that judges simply declare and apply law, law being some kind of transcendent entity that's different from judges.  So judges have to worry about how they constrain themselves.

I do think there's any particular superior methodology or constraint.  That is, I don't think that textualism is superior to originalism is superior to deference is superior to what have you.  I think that's a matter for judicial choice and judges can try to make the best persuasive case for the use of the methodology in a given case.

If I were someone to whom Jeff's comments were directed, I wouldn't worry that it's sort of all-or-nothing stakes with respect to textualism because there are other methodologies.  The question is just whether you can convince people that you're not doing this as a matter of naked power, you're doing it because you have some form of principled constitutional methodology.

The other point I don't find myself agreeing with Jeff about is this matter of contested issues.  I don't think the court is bound to lose legitimacy if it intervenes to resolve contested issues while they're still being contested.  Sometimes it does.  Dred Scott is an example.  Korematsu perhaps is an example.  But I don't see how anyone could say that Brown v. Board wasn't a contested issue when the Supreme Court intervened to resolve it, and resolve it it did, and there was considerable opposition to Brown v. Board not just on racial grounds, but on the grounds of so-called states' rights, the interference of the court with the legitimacy of localities to make decisions along that line.  Row v. Wade has been a controversial decision, but Row v. Wade is an ongoing controversy.

I think the risk of simply saying since this issue is contested, we won't decide it is that your issues become pressing, political issues translate themselves into constitutional issues, the issues are argued by the court and the court cannot just inevitably keep avoiding them.  I think it's a bad idea.

Courts change their minds.  The shelf life for majoritarian constitutional jurisprudence, for orthodoxy in constitutional doctrine is about 25 years.  Nearly every major constitutional decision as a doctrinal precedent is obsolete after 25 years.  Some, of course, are not, Marbury v. Madison is not.  Brown v. Board is not.  So I am just not particularly worried about this concern that the court will intervene in contested issues and lose face in doing so.  Sure it will take some heat, but that is the price of having a court in a system in which politics and constitutional law are intertwined.

Of all the arguments for deference or judicial modesty, it seems to me perhaps the last appealing argument is the idea that issues are contested.

MR. GREVE:  We'll go to questions from the audience.  If you could identify yourself by name and affiliation, that will be kind.

AUDIENCE:  I would like to ask those who are advocates--the fallout from the discussion about whether--intervene on contestable issues or not is that it does--have been activist episodes like as noted and also some of the least-admired episodes have been activist--so it seems that what's really important is whether the court does a good job when it decides to take an activist court on an issue or whether it falls on its face as it has from time to time.

I'd like to ask those who advocate a revival of Lochner--what do you think a good strategy would be?

MR. GREVE:  I'm not a panelist, I'm just the moderator, and I'm not in favor of Lochnerism.  Maybe David has an answer.

MR. BERNSTEIN:  I don't know if I'm in favor of Lochnerism per se, but I do think that it's important to cabin whatever goals you have constitutionally into something that has a limit because the court is not going to be inclined to adopt--I've read Institute for Justice briefs, I'm not sure if I read the most recent ones, but if you're going to pursue a right to peruse an occupation, pursue a right to peruse an occupation free from a government-sponsored monopoly, this has incredible resonance in the American historical tradition.  It's cabinable.  It's not threatening to overturn all sorts of regulations.  It's threatening only to overturn ones that actually deprive people of their right to peruse an income and that sort of thing.

More generally, I hear, and Jeff has said this, I've heard this many times, that there is this grave danger that if you have the court decide certain issues that it will backfire.  So you talk about Row.  Did Row backfire?  Row backfired perhaps on the left in general to the extent it helped create the evangelical Christian political movement, but if your goal was to have abortion be legal which is what similarly the advocates were most concerned about in that particular case, there have been 50 million or so abortions since Row v. Wade.  It's hard to see that somehow that was a great harm to abortion rights advocates.  That's a lot of abortions.  I don't know how many states would have legalized it anyway, but it was legal and it is legal.

More generally, I think my view of what the debate is really about currently--historical paper and I'll say something about current issues, for the next Supreme Court Justice to the extent that any of this discussion is relevant at all, what you really have a choice of as I see it ultimately is one group of people who I will call quite uncharitably the political hacks.  They are just Republican activists, they've gone on to be federal appellate court judges--

[End T1, side B.  Begin T2, side A.]

MR. BERNSTEIN:  [In progress] --during the original Gulf War argues that the President didn't need congressional authorization to go to war.  Then during the Clinton administration argued that to go to Bosnia you did need congressional authorization and then once again as it relates to Iraq once again argued the opposite.  You could actually pick out, if you back to LexisNexis, you could actually find people along these lines.

If you want to talk about a danger to liberty, when you have people seriously talking about the idea that we could suspend the right of habeas corpus if you're accused of terrorism, these are the people that one has be concerned about.  The people that one should not be as concerned about are people who are more independent--or Richard Epstein, so somewhat libertarian-minded people who are going to be appointed to the court because they're smart and interested conservatives who have intellectual integrity and are interested in originalism or are interested in whatever but will not be handmaidens of the Bush administration or whatever administration happens to be the way, for example, Franklin Roosevelt's justices were chosen particularly for their political hackery and who never as far as I know voted to strike down a single one of the New Deal programs after he appointed them despite the fact that all these thing had been considered unconstitutional just a couple of years earlier.

So to me to worry about a revival of Lochner seems to me to be right now a fairy tale worry.  I'm a lot more worried about people who want to suspend habeas corpus rights, who want to overturn lots of other decisions including some Warren Court decisions that I think are somewhat admirable but conflict with conservative--First Amendment decisions and what-not but conflict with current conservative political interests.

MR. SPANOS:  I'm Ed Spanos (ph) from Executive Intelligence Review.  I'd like you to be a little more explicit.  There's a big fight going on out there right now that we heard yesterday in the Senate Judiciary--attack on people of faith and so on.  If you could be a little more explicit about the implications of this in terms of the current fight over the judiciary.

A second aspect is, we've been discussing this in terms of a libertarian strain, but there's also a religious or I call pseudo-religious theocratic strain which looks at economic liberty from almost a super-Calvinist standpoint, that this is an interference with God's plan, that if people are rich they deserve to me, if people are poor they deserve to be and we shouldn't be interfering in that.

How does this play into that?

PANELIST:  There are obvious and important overlaps between social conservatives and libertarians in these judicial battles.  As we know, the opposition to national identification cards, to take just one example, combine secular libertarians with believing Christians who think that the identification card will fulfill the biblical prophecy of the mark of the beast.  And John Ashcroft chose the libertarian strains of social conservatives.  When he was a senator he was a leading opponent of the clipper chip (ph).

But obviously there are important fissures that would very much distinguish social conservatives from libertarians, and Row and the prayer cases are the most dramatic examples.  Our friends from the Institute for Justice and the Cato Institute are much more likely to take positions very dramatically at odds with social conservatives.

You're good to call our attention to this.  The connection between the concern of social conservatives and the concern of economic libertarians as they relate to the judicial battles is that both, forgive me for stating it bluntly, are political losers for the moment.  Social conservatives have lost the culture wars on the issues that they care most about as judged by the polls regarding school prayer, restrictions on early term abortions, and even sodomy laws, although not gay marriage.  Similarly, economic libertarians have not been able to make their case in the political arena.

Both care intensely about the current judicial nominations because both know that they can't make their case in national legislatures.  They are the mirror image of the liberal groups who are also political losers.  That's why there's a dissonance, a tremendous and troubling dissonance, between the fact that the Senate is about to blow itself up in an effort to address the concerns of its social conservative base and liberals are about to respond by welcoming this possibility even though it may have backlashes against them that will harm their interests.  And the general indifference of the country as a whole to these judicial battles mostly because they're perfectly happy with what the Supreme Court is doing because it reflects their views.

MR. BRUBAKER:  I'm Stanley Brubaker (ph) from Colgate University.  It seems to me the problem on the revitalization of Lochner is not so much with the principle that it embraces, that is, the principle of liberty of contract rooted in the Lochnerian tradition of natural rights because very hard to make sense of American constitutional history without that assumption of some degree of liberty of contract.

The question is, one, its scope, and, two, its location.  I'd like you to address specifically the location.  The due-process clause seems like rather poor location for the right compared to at least two or three others one of which would be the privileges and immunities clause of the Fourteenth Amendment which by congressional intent certainly was intended to embrace broad-ranging property rights much more clearly than to embrace the Bill of Rights.  The core concern was property rights for newly freed slaves, that there's more of direct concern than the broader-ranging Bill of Rights.  That's one.

Secondly, just on a textual basis it seems like Article 1, Section 10, no impairment of the obligation of contracts, should be a likely location for it because if we have the right against the impairment of contracts, we must have a right to make those contracts in the first place.  Otherwise, that--clause makes no sense.  One might say it should be a penumbra of the impairment of contract.

PANELIST:  You'd have to overrule some decisions.

MR. BRUBAKER:  But Slaughterhouse--that it was not the intention of Congress to pretty much merge the ideas of privileges and immunities to citizens and states with those of privileges and immunities of citizens of the United States.  That's what Field attacked, and I think that historically that really is the most vulnerable ground, that there is virtually no support for--argument from the congressional debates.

PANELIST:  My concern is less with the revival of Lochner per se as was just a freeing up acceptable constitutional methodologies.  I just don't see any reason why some constitutional methodology should be privileged over others.

I think there is a lot of incoherence in originalism, but one of the great contributions to constitutional jurisprudence that originalism has produced is that it's gotten constitutional jurisprudence out of the bog of endless repeating the countermajoritarian difficulty problem.

It seems to me a matter of judicial ingenuity, but judges are very loathe to take precedents like Blaisdell and Slaughterhouse that have an historical pedigree even when they may be vulnerable.  And they're also very loathe to bring in because of these decisions what would be regarded as doctrinally innovative, maybe even novel approaches.

Remember in the decision of Colgate v. Harvey, they resurrected the privileges and immunities clause.  Every commentator in the country climbed all over the court for it.  It was a plausible argument, but it didn't have any jurisprudential standing.

MR. GREVE:  On that remark, we have reached the end of our panel.  I thank all of our panelists for a terrific discussion.  Please join me in thanking them, and happy birthday Lochner.

[Applause.]