Chapter 1

 

 The Lochner Era Today

 

Kevin Walker, M.A., ABD

Claremont Graduate University

 

 

I. Introduction

 

This dissertation thesis originates from my interest in American progressivism, what it meant, and continues to mean, for the American proposition embodied in our Constitution, and how the Supreme Court found itself in the middle of that conflict in the early twentieth century.  Spanning from 1890 to 1937, the “Lochner Era” featured the Court’s attempt to adapt the Constitution to modern conditions while trying to ensure that its relevance to the changes of modern life did not deprive it of its inner republican principles.  The Court confronted a largely ignored sort of progressivism, now dwarfed in our historical outlook by the New Deal, which then existed primarily in state governments.  In many states, activists and legislators pursued a curious blend of social experimentation, genuine compassion, and necessary social reform, all aimed at the new forms of labor and industry which tested the Constitution like never before.  These policies received great social support for their promise of reforming unsavory business practices, and seemingly unlimited legal support from state “police powers.” State governments discovered a whole new meaning for “numerous and indefinite” modes of authority, applying state power “to all the objects which… concern the lives, liberties, and properties of the people.”[1] These policies were pursued in the confidence that the nobility of certain goals really could overcome human depravity, which, as experience always teaches us, is amplified by political power.  Yet it became impossible for state governments to legislate in a way that did not benefit one group over another, thereby defying the most basic function of republican government.

 

I propose that a correct understanding of the Lochner Era depends on our ability to join the Court in answering a two-part question: First, can there be a constitutional basis for “active state” liberalism?  And, second, how does the liberty of contract and, more importantly, the fundamental right to property, inform that principle?

 

A.  Reconciling Active State Liberalism and Government Neutrality

 

The whole point of republican government, practically speaking, is the avoidance of “class legislation,” or policies that that favor one special interest over others.  It was, of course, the classic problem of faction, that “mortal disease under which popular governments have everywhere perished,” as James Madison put it in Federalist #10.  Where there is no freedom, the passions that fuel those interests are kept to a minimum; but where there is liberty, their destructive tendencies are frightfully clear.  The task of a republic is to shape and channel that force into something constructive – namely, politics.  The political life of the nation is to occur on a level where ambition counters ambition, and where all of the negative aspects of power are used to benefit the public as a whole.  The American Constitution does precisely that by creating a government “in which the scheme of representation takes place.” Where representation falls short, Madison pointed to a secondary precaution: the vast number of interests in so large a republic, which “make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”[2]

 

But what if both of these “republican remedies” fail?  There is, of course, no promise from the second remedy at the state level: the “extended sphere” is an exclusively national guarantee.  Indeed, “factious leaders may kindle a flame within their particular states,” Madison wrote.  The only promise is that it will be “unable to spread a general conflagration through the other States.”[3] This leaves the first remedy standing alone, and vulnerable to the whims of local interests, and there was little to prevent the injustices that might follow.  The only appeal, it seemed, was the active power of the national government.[4]

 

In the conventional account of the Lochner Era, the story ends here.  Those businesses who lost the fight against state regulations, the story goes, believed they had been deprived of their fundamental rights, and so they pushed their case to the Supreme Court, who agreed, and proceeded to strike down many of the laws that seemed to infringe on that basic liberty.

The glaring fact, however – which is frequently ignored in modern scholarship and even the modern Court’s own opinions – is that the Lochner Court did not strike down every regulatory law it encountered.  Many regulations were declared unconstitutional; but far more were actually upheld – sometimes by the same justices who voted to strike others down.  Ignoring this, much of the modern scholarship produces little more than “anachronistic readings of early twentieth-century constitutional decisions or indiscriminate labeling of the positions of justices,” according to G. Edward White.  “It has resulted in the confining to oblivion of a number of legal arguments and propositions that were seriously entertained by participants in early twentieth century constitutional jurisprudence.”[5] The Justices of the Lochner Era had reasons for what they did, and they meant to make those clear to the public.

Far more important than “fundamental rights,” as Lochner Era revisionist Howard Gillman argues, was the Court’s attempt to clearly define the constitutional parameters of state police powers, especially in light of the new character of industry, labor, and class conflict then emerging, which intensified to the point where such neutrality in the states was in fact a hindrance to justice – or worse, a mechanism that inadvertently protected privilege.  “[I]t was becoming more and more clear to great numbers of people that industrialization had robbed the vision of neutrality of much of its attractiveness,” according to Gillman.  “For many groups the inescapable coercion of the market led to pleas that public power be used on their behalf to counter private power.”[6] But again, how could public power do this without bringing about the same problem of favoritism that the market itself had created, albeit in the favor of big business on one side, or progressive groups on the other?  What was in theory a form of injustice turned out, in practice, to be the only just remedy for the problems that the nation faced.  How was a Court to discern between the two things?  It called for an entirely new approach to judicial review – one for which precedent offered little guidance.  Indeed, it seemed that such regulation was in fact justified.  But when, and under what circumstances?[7]

 

Controlling state-level factions had certainly been the aim of the Fourteenth Amendment.  It nationalized citizenship, and it granted a vague concept of “privileges and immunities” (formerly among “the several states,” but now among citizens simply).  Most importantly, though, it denied any state such power that could “deprive any person of life, liberty, or property, without due process of law.” State governments were meant to persist, despite this broad grant of power to the national government; with federalism still in place, the Amendment assumed sound congressional judgment about whatever problems it faced in a post-Civil War America.  Yet this greatly complicated the Court’s task: many were quite willing to invoke national authority in ways that went far beyond protection of former slaves – and to do so, not by petitioning Congress, but by appealing to the Supreme Court.  The Amendment, many claimed, was “made under an apprehension of a destructive faculty in the State governments.  It consolidated the several ‘integers’ into a consistent whole.” Though the Amendment was designed to emphasize certain points about national authority over the basic rights of citizens, it rendered the purpose and even legitimacy of state governments quite dubious.  The Amendment’s language was hardly “confined to the population that had been servile”; its guarantees were, after all, not for members of groups, but for individual persons.  “The mandate is universal in its application to persons of every class and every condition,” attorney John Campbell claimed in his Slaughterhouse arguments, thus revealing the puzzle that the Court would be trying to solve for the next forty years.[8]

 

B.  Fundamental Rights and Class Legislation

 

A government’s direct involvement in the lives of citizens always proceeds on the basis of some ideal, or some plan whose goal may sometimes surpass consideration of the costs.  The experience of communism or Nazism is clear enough.  But what about liberty?  Under what circumstances is a constitutional republic forced to actively pursue a plan of liberty – not a utopian vision of the future, but a return to its own first principles?  When is it obligated to override its usual course of neutrality to set things right?  While much of the Lochner Era revisionism is correct to point out the Court’s concern with class legislation, I argue that such concern is indefensible when it appears at the expense of fundamental ideas about the purpose of government.

 

The American proposition holds that, contrary to most of human history, a people really can establish their own form of government by consent, one that will protect the natural rights that belong to individual persons.  While it originates in the democratic principle of majority rule, it finds its highest end in republicanism that can equally protect minority rights.  The rule of law that ensures this is sustained only by an acceptance of its continuity with the founding, and the confidence that political tradition is the greatest embodiment of liberty.  New generations would arrive, and new laws would be necessary; but those new laws, if they had any legitimacy, had to be understood as mere outgrowths of the fundamental law in the Constitution, or else they were void.  That makes sense, though, only on the assumption that the Constitution is itself an embodiment of the principles involved.

 

Fundamental ideas are not imperatives, at least not in the American political tradition.  They appear instead as precepts that determine conclusions: if we reject the premise, we deny the conclusion; if we desire that conclusion, we must accept the premise.  “As I would not be slave, so I would not a master,” Abraham Lincoln said.  It is difficult to call such a view of first truths “philosophy,” at least in the modern sense.  It is instead a clear understanding of the things we must accept in order to proceed with even the most pragmatic endeavors.  Yet the Court was hardly designed for articulating those assumptions: cases “in law and equity, arising under the Constitution” did not call for expositions on American political theory.  Societies that draft and ratify constitutions “contemplate them as forming [a] fundamental and paramount law of the nation,” thus settling the first principles and enshrining them in written law.[9] James Wilson saw this clearly enough: the “first rule” is “to discover what the law was before the statute was made,” meaning that judges “ought to take for granted, that those, who made it, knew the antecedent law.” At the same time, “though an accurate, a minute, and an extensive knowledge of its practice and particularly rules be highly useful,” he wrote, “I cannot conceive it to be absolutely requisite to the able discharge of a legislative trust.”[10] If a constitution meets all of the requirements of republicanism, then plainly citizens and judges alike can regard the document alone as an adequate statement of natural justice, the precepts of which appear as the settled premises by which political life sought its day-to-day conclusions in policymaking.[11]

 

The problem, though, was precisely how unsettled those premises had become in the early twentieth century.  Understanding the people as the only legitimate source of sovereignty had always depended on public mores, which themselves instructed all on the limits of democratic will.  The only sure boundary to that will was, of course, the right to pursue property, particularly through arrangements that were backed and secured by the government.  But what if that boundary was broken – even by a legitimate use of political power?  This was what happened in the Lochner Era.  The Court found itself compelled to make explicit what had formerly been embedded in the text, and to do so on a far greater scale than any previous generation of justices.  There was, of course, a great danger in this: Bringing fundamental ideas to light opened the way for “philosophic jurisprudence,” which could pull justices away from the law itself, and confuse the distinction between the Constitution’s direct intent and the variety of theories that could displace it.  Robert Bork was quite right to point out that “the various systems of moral philosophy that legal academics propound as guides to constitutional adjudication are not capable of constraining the judge.  They are capable, instead, of producing any result the judge, or professor, wants.” Construing a statute according to moral philosophy is not “applying law but creating it wholesale.”[12] Yet these conditions are not the result of too much philosophy, as Bork seems to believe: it is instead the legal positivism that came well after the Lochner Era that left such a void in the way judges understand the Constitution – a void that would be filled by whatever theory managed to dominate a majority of justices in any given case.  In place of first truths came pre-determined conclusions, some rooted in things like “evolving standards” that “mark the progress of a maturing society,” or rights “older than our Bill of Rights – older than our political parties, older than our school system,” if not “the right to define one’s own concept of existence.”[13] This offers a critical lesson: rather than trying to avoid a long and complicated slew of moral philosophies by adopting no moral outlook at all, it is better to ensure the best outlook that supports the purpose of republican government in general.[14]

 

Hence, Lochner Era jurisprudence proceeded on two levels: one dealt with the pragmatic aspects of American constitutionalism, while the other dealt with the essential moral foundations of liberty itself.  One addressed the challenges to free government, while the other sought to explain the merits of freedom.  Any attempt to understand the rulings of that era, as they sought to craft a basis for constitutional regulation, must consider both of these things, and see how they fit together.  The gravity of the task does much to explain why many Lochner Era rulings were frequently ungraceful, plagued by rhetorical blunders, heated opinions, and what appeared to be an over-reliance on “an economic theory which a large part of the country does not entertain.”[15] It explains the apparent heartlessness on the part of some justices, who seemed more concerned with their abstract legalisms than the suffering of working people and the noble intentions of reformers.

 

But, again, those cases that struck down state regulations tend to draw excessive attention away from many more that upheld the laws.  For this Court, fundamental rights did not stand alone as the imperatives that had to be enforced; they were, in fact, “historically contingent and legislatively mutable,” David Bernstein writes.  “The Lochner Court did not think common law rights were immutable, and the Court frequently interpreted those laws that changed or even abolished the common law.” When the Court explicitly referred to common law rights, “it almost always did so to justify upholding government regulations, by finding that common law experience suggested that the regulations in question were within the scope of the police power.” If anything, Bernstein writes, the Lochner Court’s appeal to fundamental rights “restrained the Court’s libertarian instincts.”[16] Clearly the Court’s view of fundamental rights was meant to accommodate more practical (and less philosophic) considerations – the problem of class legislation, in particular.

 

The goal of this dissertation is to reconcile those two views, which are frequently at odds in both the legal-historical literature and in the modern Supreme Court itself. I hope to vindicate Lochner Court’s legal arguments: in truth, they sought to show how the Constitution could adjust to present circumstances without forfeiting its inner republican principles, thus allowing for legislation that met its intended goal without encouraging factional politics to the point of political self-destruction.  Just how far does the Constitution allow factional politics to go when it is meant to correct social and economic wrongs?  At what point does the immediate necessity of active state liberalism undermine the basic guarantees of free government?  This dissertation is an exploration in the Supreme Court’s attempt to answer those questions.  I do not believe the conclusion of my study can possibly save American constitutional law from post-New Deal conditions, but it can certainly give us a better understanding of how we arrived at our present state, whether we deem it good or bad.

 

II.  Interpretations of the Lochner Era

 

A.  Legal-Historical Judgment

 

Cass Sunstein’s article, “Lochner’s Legacy,” is the single greatest attempt to give the conventional account of the Lochner Era a solid theoretical grounding.  Sunstein argues that the Court should recognize how legal first principles are derived from certain historical periods, meaning that much of the judge’s task involves not only training in law, but a careful and enlightened study of social evolution.  He acknowledges, of course, how easy it is to see the Lochner ruling as quintessential judicial activism.  But this is to overlook how essential the Court’s interpretive role is: it must interpret law according to “baselines,” or foundations for all legal reasoning which are unique to their time.  There are fundamentals, or bedrock precepts, which give meaning to the existing regime – and it is, as always, the duty of judges to promulgate them.  Yet it is not the fundamentals themselves, but the ways that they change that a judge must understand: the Code of Hammurabi could not possibly apply to today’s tort law – not because Hammurabi was not a wise and brilliant man, but because the baseline of ancient Mesopotamia was radically different from that of later times.  There is no kinship between law of the past and law of the present; the core assumptions do not apply differently to different circumstances, but actually change all the way down.  Hence, understood in light of the baseline of the late nineteenth century, we find that Lochner was in fact rightly decided.  “Market ordering under the common law was understood to be a part of nature rather than a legal construct,” Sunstein writes, “and it formed the baseline from which to measure the constitutionally critical lines that distinguished action from inaction and neutrality from impermissible partisanship.”[17] At the same time, it was wrongly decided because of the justices’ inability to see how that baseline had shifted into one that gave greater support to an expanded role of government in private industry.

 

To assume that the baseline is somehow unchanging is to commit the height of legal error according to Sunstein.  Judges might do it accidentally; but judges who do it deliberately, or hold on to past baselines in the belief that tradition and continuity are essential – they are the true judicial activists.  Real judicial deference requires not only deference to legislative will, but also to the spirit of the times.  To be sure, legislative will may commit the same error.[18] But Courts have to intervene in Sunstein’s view: deference to lawmakers, who are out of touch with the baselines of historical values, is little better than judicial activism itself.  And if lawmakers are out of touch with changing baselines, then we can be most certain that the people are as well.  The Lochner Court’s error was its appeal to the status quo, which hardly evolves the way it should without the prompting of judges.  So while it falls to judges to ensure law’s legitimacy in Sunstein’s view, it is also their duty to make sure society stays attuned to its own baseline.  Otherwise law will be outdated and useless – or worse, the tool of other judges who try to use traditionalist interpretations for political purposes.

 

In this way, Sunstein confirms the conventional account of the Lochner Era: after a long and erroneous detour, the Court attuned itself to the evolving baseline in West Coast Hotel v. Parrish (1937).  The case was not a confession of constitutional error in Lochner and subsequent cases, nor a mere reaction to political pressure from Franklin Roosevelt.  It was instead a philosophic error: the Court had failed to announce the new baseline when it arrived.  In West Coast Hotel, though, it compensated for its delay in announcing the new order – not better one, nor a worse one, but one that was simply different from the order that had preceded it, and correct in light of the way things had become.  The case “signaled a critical theoretical shift, amounting to a rejection of the Lochner Court’s conception of the appropriate baseline.” It was also the recognition that neutrality actually does a great deal in favor of narrow policy outcomes.  The Court’s claim in West Coast Hotel “is that the failure to impose a minimum wage is not nonintervention at all but simply another form of action – a decision to rely on traditional market mechanisms, within the common law framework, as the basis for regulation.” The Great Depression was far more than a difficult economic time according to Sunstein: it represented a radical shift in national consciousness, and the Court was obligated to adapt the law accordingly.  “Once the Court’s baseline shifted,” Sunstein wrote, “its analysis became impossible to sustain.”[19]

 

Owen Fiss has done much to propagate this view: the “question of legitimacy” for the Supreme Court is not so much answered or demonstrated as it is created.  While Lochner is usually a reminder of how judicial power might go astray, there is still a fundamental distinction that appears in the common efforts to separate it from cases like Brown and Roe.  Fiss refers, quite frankly, “to the distinction between the role of the Supreme Court and the substance of the Court’s doctrine” – between its outcome and its method.  Following Sunstein, he argues that by giving a strong basis for criticizing the substance of Lochner, judges and legal scholars are set free to elevate the judicial function to an entirely new level.  Again: “Lochner stands for both a distinctive body of constitutional doctrine and a distinctive conception of judicial role: One could reject one facet of Lochner and accept another,” he writes.  “We may wish to criticize its substantive values and yet leave unimpeached its conception of role – which it shared in common with Brown [v. Board of Education (1954)],” and, of course Roe v. Wade (1973) and its subsequent cases.[20]

 

Such rulings were based on a clear distinction between law and politics, Fiss writes: politics is will, and law is reason.  It is, after all, the most basic tenant of Western political thought that reason should rule over will, and that power must be checked.  “The Court owed its primary duty to a set of values it saw enshrined in the Constitution and gave itself the task of protecting those values from encroachments by the political branches” – not only on its own sphere of authority, as James Madison would have seen it, but on the rights of citizens, particularly those rights that the Court itself had deemed fundamental.  Those rights “existed apart from, and above, ordinary politics,” Fiss observes; their duty “was to give, through exercise of reason, concrete meaning and expression to those values.” In short, Fiss proposes a theory that allows one, “with perfect consistency,” to “remain attached to Brown and its robust use of judicial power to further the ideal of equality, yet be happy that Lochner lies dead and buried.”[21] To criticize Lochner v. New York on both substantive and methodical grounds is to strip away the last protection of our most basic rights.  The thing that could do the greatest evil through raw assertions of power can also be used to do the greatest good.

Yet this view falls prey to the same problem as historicism in general: why expend so much energy defending and protecting the outcome of today’s “baseline” when one also admits that it must one day yield to another baseline?  Rooting a framework for interpreting the constitution in a historically-bound outlook may give it great utility; but it leaves future judges with a tremendous burden of having to abandon precedent after precedent – a thing that deprives it of its legitimacy.   But that is not to say that it cannot articulate a broad and general goal that it shares with the American people as a whole.

 

B.  Lochnerizing in the Service of Democracy

 

Other legal scholars have sought to define a “Lochner-like role” with greater precision – a task not unlike archaeology.  Digging with precision and care, they hope to excavate an artifact – a praiseworthy judicial function – out of the doctrinal dirt.  Howard Wasserman, for instance, claims to have found “reinforcement of aggressive rights-based judicial review”; this calls for a careful rethinking of Lochner’s “pejorative nature” in modern legal discourse.  The outcome of Lochner should not obscure what might be a positive role for the Court, particularly when it comes to protecting free speech, for example.  Wasserman focuses on the Bartnicki v. Vopper, where the Supreme Court declared it unconstitutional to use information obtained by wire-tap in a criminal case.  To liken the two cases “is to suggest a structural or procedural problem with the broad enforcement of individual free speech rights,” Wasserman explains; this “ultimately serves to obscure meaningful substantive constitutional dialogue about the meaning of the freedom of speech and how that freedom should be balanced against competing constitutional, political, and social values.”[22] He considers the classic criteria that have come to define Lochnerizing: it involves extra-textual rights, which depend on “super-protected… common law judicial lawmaking that trumps popular legislative enactments”; it springs from scorn for democracy; it seeks to substitute judicial will for legislative judgment; and it misallocates judicial scrutiny.[23]

 

And it is, of course, the classic “ideological morality play.” “Lochner was the old, rigid, formalist regime that had to be slain in order for the progressive, flexible, pragmatic ideals of the New Deal to spread and take hold,” he writes.  “The New Deal’s turn from Lochner reflected eventual judicial recognition of changed social and economic conditions that altered the understanding of the common good, the role of the government in ensuring the public good, and when constitutional liberty must yield to the common good.” Absent in this morality play is, of course, the potential for the Court itself to ensure the public good through its rulings, and how it might do so with far greater efficiency and wisdom – if not compassion – than any legislature.  When the democratic process is attuned to the need for expanding on and protecting rights, then it may be the Court’s duty to step out of the way; when the democratic process fails to ensure them, however, it is a critical duty of the Court to put us back on track.  “The point is that slapping the Lochnerism tag on a decision… does not advance the discussion,” Wasserman concludes.  “Lochner ends debate, by defining and intention, de-legitimizing the decision on its own terms.  And it does so with a pejorative term whose meaning we do not know and cannot agree upon and whose assumed meaning runs a broad range.” While some, like Sunstein and Fiss, see Court-protected and (even Court-made) rights as pitted against an erroneous democratic will, Wasserman sees them as the bedrock that makes democracy possible.  To say otherwise is to leave us wondering “whether, one hundred years from now, the constitutional canon and anti-canon might change again.”[24] That is a strong possibility; but it is better to focus on making law fit present circumstances than to worry about future consequences.  Indeed, this view of history has the same regard for the future as it does for the past.

 

Hence, Wasserman introduces a view of the “baseline” that is not shifting and changing through different eras, but actually aims at a single goal.  More recently, others have sought to give that goal a clear identity, or what Justice Steven Breyer calls “active liberty.” It is a framework by which judges can interpret the Constitution in favor of the document’s own democratic underpinnings.  It is a principle that gives the Court a basis for scrutinizing those cases that conflict with the general precepts held in the public mind, thus affirming a robust and energetic democratic life.  While he is “conscious of the importance of modern liberty,” Justice Breyer means to emphasize how “courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts.”[25] This principle, he says, comes from a realization of the judges’ lack of expertise when compared to the democratic multitude and its elected officials.  Still, to defer everything to the general will is to give away the principles that make that general will possible – not to mention a prominent role for judges like Breyer.

 

The Court’s view of its own history, as we might expect, can be problematic for present rulings.  While it did much to establish the authority of the national government through the nineteenth century, it “overly emphasized the Constitution’s protection of private property,” i.e., in Lochner v. New York.  “At the same time, that Court wrongly underemphasized the basic objectives of the Civil War amendments.  It tended to ignore that those amendments sought to draw all citizens, irrespective of race, into the community, and that those amendments, in guaranteeing that the law would equally respect all ‘persons,’ hoped to make the Constitution’s opening phrase, ‘We the People,’ a political reality.” It was not until the Warren Court arrived that the true intent of those amendments was realized – not by looking to the basic protections of the Fourteenth Amendment, but by actively – if not coercively – “changing the assumptions, premises, or presuppositions upon which many earlier constitutional interpretations had rested.”[26] That was the true starting point for the Court in attuning itself to present values.

 

Yet it plainly calls for recognition that the democratic process alone is not sufficient to protect its own baseline.  It is an age-old lesson in political philosophy: democracy frequently turns against itself, and destroys its own first principles.  Many have assumed “that a thoroughly democratic government based on public liberty would naturally protect the individual rights of its citizens,” Breyer writes; many have believed that the people can safely govern themselves because the constitution provides all the protections they need, whether looking at the Madisonian “extended sphere” and representative system, or at the pure democracy approach of Robert Dahl and Benjamin Barber.  In all instances, the only right that government is bound to protect is participation in the political process.  But this has hardly been sufficient in the states: “government experiments in less disciplined democracy had proved disappointing in this respect,” he writes, “bringing about what some called a new form of despotism.”[27] For Breyer, this calls for a broader judicial role, where the Supreme Court reaches beyond mere national concerns, and involves itself deeply in local affairs; it calls for the Court to maintain the groundwork for democracy.  State constitutions, after all, admitted their inefficiency when they framed their respective bills of rights, while the Founding of the national government produced a very insufficient Constitution.  But while many would look to the people and their elected officials as the ones who would complete it, Justice Breyer looks to the Court as the institution that moves them along to the proper goal.  Once again, this calls for Lochner-like rulings without Lochner-like outcomes.  The “right of contract” was simply the wrong basis for democracy in Breyer’s view: but that doesn’t mean the Court can’t deliver the correct basis.  More important than the meaning of the text, he writes, are the consequences, i.e., “an appeal to the presumed beneficial consequences for the law or for the nation that will flow from adopting those practices.” Nor does this create a radically subjectivist form of judicial review.  With “active liberty” as a common goal, even when the Court “radically changes the law,” Breyer concludes, “this is not always a bad thing.”[28]

 

C.  Lochnerizing in the Service of New Fundamental Rights

 

Justice Breyer admits that “active liberty” achieves only one half of the challenge of modern democracy, i.e., the collective aspect more than individual liberty.  (“I focus primarily upon the active liberty of the ancients, what [Benjamin] Constant called the people’s right to ‘an active and constant participation in collective power,’” he writes.[29]) For others, though, it is more urgent and more legitimate to interpret the Constitution in the opposite direction – a method that is more explicitly dependent on Lochner-like outcomes, albeit outcomes of a different kind, pertaining to privacy and sexual freedom.  Thomas McAffee, for example, reminds us that “in the most recent era, the Supreme Court has returned to its practice… of imposing unenumerated fundamental rights as limits on the powers of government.”[30] This has compelled many scholars to seek “an alternative justification” – not only separating the doctrine of Lochner from the method, but also showing how there is a new doctrine that is indeed more sacred than anything the Court sought to protect in the Lochner Era.  McAffee reminds us that, despite a strong consensus “that the Lochner-era Court was profoundly wrong,” there has not been a consensus “about precisely how the Court went wrong.” The only clear objection comes from textual literalists like Justice Hugo Black – a position that has proved to be somewhat unworkable and unrealistic about the value-laden nature of law.  What plagued the Lochner Era “had little to do with literalism and much to do with the confidence of the Court in asserting, and then concluding, what was fundamental in America and what was universally fundamental.”[31] Every “balancing” act that the Court performs is basically concerned with the interests of the community and the fundamental rights of the individual.  But, as even the Founders recognized, the community will almost always prevail on its own.  It needs no assistance from the Court aside from ensuring that all can participate in the community.  The Court may try to channel and shape democracy in such a way that it includes the right people and respects the rights of others; but that can never be as important as protecting basic fundamental rights against direct attacks from the community.

 

Giving clarity and direction to Lochnerism comes from shifting attention to the correct textual basis for protecting fundamental rights – i.e., away from Substantive Due Process, and toward Equal Protection. Substantive Due Process, after all, invites far too many considerations of principles, which can become confused with the traditionalisms that stifle the Court’s judgments.  “A governing majority almost certainly viewed interracial cohabitation, let alone marriages prohibited by anti-miscegenation laws, as immoral at the time the legislative prohibitions were enacted,” he writes.  “But, merely invoking a conventional ground for using state police powers does not liberate a state from its duty to refrain from enacting racially discriminatory laws or unacceptably creating ‘classes’ of citizenship in violation of its duty to supply equal protection of the law.” Equal Protection, on the other hand, can help us grow out of the traditionalism that informs whimsical democracy.  McAffee’s primary example is, of course, gay rights, which were easily placed in the cross-hairs of democratic will.  While the Court struck down the law in Lawrence v. Texas (2003), it did so on the wrong Due Process grounds.  In contrast, an equal protection ruling would have recognized that the clause “does not build on long-standing traditions, but instead rejects them insofar as they attempt to devalue or humiliate certain social groups,” he writes.  “The problem in Lawrence is not adequately understood without reference to the social subordination of gays and lesbians, not least through the use of criminal law.”[32]

 

These legal-historicist views – whether aiming at “changing baselines” as Sunstein proposes, or at a democratic ideal of “active liberty,” or a “fundamental rights jurisprudence” – feature many mixed feelings about Lochner, and the Era that bears its name.  The case holds a volatile place in this school of thought, standing between what they want the Court to be and what it was in the past.  It is an “unnerving presence,” Robert Post writes, “because we do not have a convincing account of the criteria by which our own aspirations to preserve constitutional rights should be compared to, and therefore distinguished from, what has become a paradigmatic example of judicial failure.” But for all of their careful treatment of the Supreme Court’s role in light of evolving precepts, these scholars overlook one glaring and devastating fact: the Supreme Court upheld far more regulatory laws than it struck down.  In the midst of the Lochner Era, legal scholar Charles Warren chronicled the police power cases leading up to 1913, showing just how many of them upheld regulatory laws aimed at labor and industry.  The conventional account of the era focuses on unconstitutional regulations at the expense of those that were constitutional, and it forgets that there were different conclusions often held by the same justices.  Though “Lochner’s Legacy” has been very influential, “beyond Lochner itself, the article cites only ten out of hundreds of relevant Lochner era cases, and discusses only two of them in any detail,” as David Bernstein points out.[33] Some historical facts can devolve into hair-splitting distractions, while others can be exaggerated to outrageous proportions; but this one falls entirely on the myth’s most basic claims.  The size of a lizard might be exaggerated into a dragon; but a mouse cannot, because it is a different thing in kind. 

 

Yet the Lochner Legend lingers.  This is not because it is true, but because, from a historical-legal perspective, it is useful.  It may be false to say that, in the Lochner Era, “the police power could not be used to help those unable to protect themselves in the marketplace,” as Sunstein puts it; but the facts are not as important as the intentions of those who promulgate the story.[34] An account for the “spirit of the times” in the Lochner Era demands far more than a discussion of Lochner v. New York itself: it requires a justification for the other cases that protected an extensive use of state police powers. “Although recognizing that history, in the form of foundational constitutional commitments, must play a role in efforts to apply the Constitution to contemporary legal disputes,” G. Edward White points out, “Sunstein has also frankly described his version of historical research as predicated on searches for ‘a usable past,’ that is, attempts to enlist history as a weapon for progressive change.”[35] Bernstein concurs: Sunstein did little more than apply an “ideological construct to constitutional history for presentist purposes, while ignoring or neglecting contrary evidence.”[36] The utility of a thing is found in its multiple purposes: it needs to give everything its user wants, and nothing he doesn’t want.  It is, of course, precisely what John Paul Stevens did in is Roper v. Simmons concurrence: evolve beyond the grip of tradition by pulling revered or reviled names and symbols over to one’s side.

 

But what exactly was the Lochner Court trying to do – not in Lochner v. New York, but in the variety of other cases that upheld regulatory laws?

 

D.  Positivists and Activists

 

Other scholars, such a Robert G. McClosky, find the Lochner Era Court entirely to blame (or praise, from other points of view) for the rise of the modern Court.  The sole feature of the Lochner Era, in his view, was the justices’ own humanity getting the best of them: it cannot be denied, McClosky writes, “that the judges seemed recurrently tempted during these years to have done with temporizing, to attack with their bright new weapons, to rule by flat decree.” This is, of course, the positivist critique: the business of the Court is to keep itself out of political judgments.  Law is best, in other words, when it is purified of values to the furthest extent possible.  True, justices of previous decades could be idealists and approach judicial review philosophically at times; but it had been wise enough to focus on the written law rather than allow its own political judgments to invade its judicial function.  In the Lochner Era, though, the Court found a new “prevailing habit of mind – the idea that government cannot be left judicially unsupervised in possession of a power that might be abused.”[37] Such laws challenged the “sacred” principles of laissez-faire – the principles that just happened to have invaded the dominant judicial philosophy of the day.

 

By allowing such value-judgments to work their way in the judicial review, though, the Court unknowingly opened the way for a variety of others.  Though they perceived only one philosophy – one so “fundamental” and “basic,” and at the same time, so rooted directly in the Constitution itself – it was, in truth, an opening of the floodgate for a variety of other rights or “evolving standards” theories that would come later.  Laissez-faire principles belonged in one branch of the public deliberation about the nature and extent of regulatory policy; but, instead, “it was becoming increasingly apparent to those of even modest political sensitivity that the public demand for economic regulation was rising and could not be altogether gainsaid,” McClosky writes.  Not that the reasons for regulatory laws were themselves justified: it was more a matter of allowing the people to govern themselves, even if it called into question the most basic principles of government.  Without this broad grant of political power through judicial deference, “it becomes harder and harder to sustain the illusion that the judicial yes or no is based on inexorable constitutional commands, and it becomes easier and easier for observers to see that judicial review is operating as a subjective and quasilegislative process.”[38]

 

Such institutionalization of laissez-faire principles, McClosky writes, would inevitably lead to close scrutiny over legislation dealing with hours and wages.  Far more than health and safety standards or Congress’ use of the interstate commerce clause is the building-block of the whole liberty of contract: the right of employee and worker to agree on the conditions of labor for mutual advantage.  “Any state interference with them impinges vitally on freedom of contract,” McClosky writes – “the holy of holies for the knights-errant of laissez faire.” For all of their fervor over this issue, though, McClosky points out that the Court was hoping for the impossible.  The regulatory state was simply the new order of the age.  By striking down its enactments, the Court was merely slowing down the process in certain states – at great expense to its own institutional integrity.  Only judicial restraint could ensure such a thing.  The decline of the Lochner Era is in fact the story of the Court’s own awakening to this reality thanks to Justices like Frankfurter, Cardozo, and Franklin Roosevelt’s other appointees.  But this, of course, stoked even greater reaction on the parts of Taft, Sutherland, Butler, and other “convinced foes of the welfare state,” according to McClosky.  These justices were quite confident that they understood national preferences better than the people themselves understood them.[39]

 

Still, McClosky’s standard positivist critique falls short for the very same reason the historicist criticism does: it ignores just how much the Supreme Court upheld regulatory laws in this era.  True, there were “fundamental rights” involved in the cases, and liberty of contract was always in view.  But this “natural justice” philosophy that informed so much of their jurisprudence was hardly the rigid sort of thing it is made out to be.  As David Bernstein – an avid critic of the liberty of contract himself – points out, the Court “did not see the common law as natural and prepolitical, but as manmade and mutable.” The justices showed an “acute awareness that common law rights were historically contingent and legally mutable.”[40] As my own thesis will show, the Supreme Court was hardly concerned with striking down legislation that collided with its own laissez-faire philosophy; it was instead trying to craft a constitutional rule that would bring together both a view of fundamental precepts of liberty and avoid class legislation when the system failed to do so on its own.

 

But what exactly did “public preferences” demand?  What so much of the Lochner Era scholarship ignores – even among those like McClosky who defend a deferential Court – is the nature of the popular support behind the legislation.  Regulatory laws of this era were hardly the doings of state legislators alone: they were ideas that emerged from a very powerful grass-roots activism.  And, according to Matthew Bewig, they were pursued for very common-sense reasons.  Lochner era scholarship “has been seriously flawed by over-attention to, and reliance upon, the ideas and arguments preserved in the Lochner Court’s written opinions.” The opinions only tell the Court’s own story, and result in a sort of historical tunnel-vision, giving us the constitutional questions at the expense of the political and social ones.  This was, of course, precisely why so many demanded a more thoughtful realism on the Court at the time: judicial review that ignored the broad array of facts would inevitably lead the law away from the reality it was meant to describe, and that would render it irrelevant – or worse, make it the enemy of the public.  Today, like then, “little or no attention has been paid to the crucial role played by the bakers of New York in agitating for passage of the bakeshop reform.” Bewig points out how the liberal critics of the Lochner Court ignore the presence of economic principles in the Constitution, and how those principles really do matter to laborers at the bottom; conservatives, on the other hand, tend to ignore the laborers themselves as central actors – particularly how “it was the efforts of the journeyman bakers of New York over a twenty year period that brought about the passage of the Bakeshop Law,” he writes. This calls for a new bottom-up approach to studying legal history – one that accounts for the broader context in which a case was decided, particularly the popular activism that fueled it.  Legal history “from the bottom up,” he writes, “must tell the collective story of the bakers and insist that we listen to their collective voice in the form that they have bequeathed it to us.”[41]

 

Bewig is quite right to point out the bottom-up reasons for Lochner Era reforms: it was true that the bakers had their reasons for pushing this legislation.  Yet there is no denying that this only tells one side of the story.  Bewig assumes, of course, that there is only one side that truly matters: the people, independent of the law itself, and that the will of the people is somehow always good, no matter what conclusion they come to.  It ignores the basic maxim that law “signifies a rule of action” – that law is “the scaffolding of society,” in James Wilson’s words: “if society could be built and kept entire without government, the scaffolding might be thrown down, without the least inconvenience or cause of regret.”[42] More importantly, such a radical view of popular sovereignty assumes that the democratic will can create its own legitimacy – or, rather, that it has no obligation to justify itself.

 

But maxims and precepts can be put aside: the problem is clear enough in the consequences of such regulatory laws.  Though the people may have very good reasons for their demands, it is clear that by denying the premises of free government, they do the greatest damage to themselves.  Such regulation of industry inevitably aligns itself with one special interest or another.  The “tunnel vision” of New Dealers, as well as the state-level progressives who preceded them, Richard Epstein writes, “let them focus their attention exclusively on the beneficiaries of their programs, be they union members or farmers, while taking no note of the adverse effects that their programs had on the parties excluded from the market or forced to pay the higher prices that the government policies maintained.” The very people who attacked the Old Court for its disconnected, if not inhumane, principles of interpretation “were guilty of a massive disregard of the basic established principles of economics,” he writes.  “No judgment about social welfare can be made simply by celebrating the gains of one preferred group.”[43] Hadley Arkes points out that schemes for controlling wages, hours, prices, and other aspects of industry “were supported by nothing more than speculations about the conditions that were likely to raise incomes for one group or another, which were picked out for special benefits in the law.” Indeed, the speculation about the outcomes of regulatory laws is far more theoretical and detached from reality than even the most radical proponent of a laissez-faire economy.  “The flexing of power could be seen then as an energetic use of the ‘public authority,’ by a state wedded to the mind of science and devoted to the public good.”[44]

 

In light of these things, the Court’s task was to craft a rule that allowed for popular legislation like the bakeshop act, as well as other hours, wages, and price laws, while at the same time preventing those regulations from harming the very people it was meant to serve.

 

This led, in other words, to a careful consideration of both the means and the ends of good government – a view of what government was for, and at the same time, how it would be empowered to meet those ends.  That rule had been simple enough through the nineteenth century.  But in the early twentieth century, there seemed to be a new necessity in the pursuit of justice.  “Justice is the end of government,” James Madison wrote.  “It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”[45] The goal of the Founding was, of course, to limit and construct that pursuit of justice in such a way that it could coexist with liberty.  But if it should happen that liberty surpassed justice, by Madison’s principle, it was necessary for the government to reach beyond its own neutrality and set things aright.  So when was this justified, and when was it not?  This was the question that the Court was forced to answer, and arriving at that answer involved careful consideration of two sides of good government.

 

III.  Central Thesis: Allowing Class Legislation and Protecting Fundamental Rights

 

The Lochner Era features the classic Progressive problem: economic regulation, though driven by the best of intentions, employs methods that have little regard for the true outcome, meaning that the very people it is designed to help end up suffering even more.  It begins with an impulse deeply rooted in the American psyche: people in democratic times, far more than in any previous era of human history, are remarkably good at feeling compassion.  Alexis de Tocqueville observed how each American “can judge the sensations of all others in a moment: he casts a rapid glance at himself; that is enough for him.  There is therefore no misery he does not conceive without trouble and whose extent a secret instinct does not discover for him.” The American’s outlook on pain and hardship “mixes something personal with his pity and makes him suffer himself while the body of someone like him is torn apart.”[46] Yet Tocqueville was quite aware of the danger in this.  All morality – and, indeed, a great deal of public policy – could be reduced to the inner feelings of those who seek to do good, and the satisfaction of the benefactor could come to mean more than the benefit of those in need.  Pity can be a strong motivator, but it cannot possibly give any reliable sense of direction for social reforms.[47]

 

A.  The Means: Special Interest Legislation as a Necessity

 

But that is only one side of the problem.  It is inevitable that this distinctly democratic sense of compassion, because of its raw power, sets itself up to be used by other special interests who have a stake in bringing down some other interest, particularly in an industrial society.  The outcome of this impulse in modern America was most apparent in the 1930s, when the nation experienced “a depression within the Depression” according to Amity Shlaes.  Franklin Roosevelt was blunt about his intentions: the response to mass-suffering did not call for effective measures of relief nearly so much as a pretext for bold experimentation, which “itself created fear.  And many Americans knew this at the time,” Shlaes writes.  “Fear froze the economy, but that uncertainty itself might have a cost was something the young experimenters [in Roosevelt’s administration] simply did not consider.”[48] Those who paid most dearly and who suffered the most under the New Deal were precisely the people it was meant to help.  The New Deal, and the progressive experiments that preceded it in the states, had little regard for human costs.  The unemployed, or laborers who were abused by their employers, were reduced to public symbols that justified all kinds of projects with entirely different goals.  The “better world” was shared by grass-roots social reformers and policy-makers alike.  But the latter were more realistic about what that world would be: experts would be at the top, operating as untouchable social engineers, while the suffering people would be at the bottom, where there was no guarantee that the suffering would cease, or even diminish.  Yet this overlooked the humanity of those experts, and how they would inevitably align themselves – if not narrowly represent – a specific special interest.  It was a “willingness to install ‘a rule of factions,’ a regime in which interest groups would be licensed to make laws binding on their competitors,” Hadley Arkes writes.  Under this legislation, “some of those interests would be taxed and coerced, explicitly, for the purpose of delivering benefits to their adversaries.”[49] It was the classic definition of corruption, where the political arrangement meant to care for the whole ended up serving only a part.

 

The most important revision of Lochner Era “class legislation” appears in Howard Gillman’s book, The Constitution Besieged.  The cases of that time “represented a serious, principled effort to maintain one of the central distinctions of nineteenth-century constitutional law – the distinction between valid economic regulation, on the one hand, and invalid ‘class’ legislation, on the other – during a period of unprecedented class conflict.” The Court’s rulings were attempts to “cure the mischief of factions,” as James Madison would have put it – albeit at a time when the republican forms of government in the states had failed to do so on their own.  Again, state-level politics received only half of the Madisonian blessing: the “extended sphere,” where all factions are pooled together into a republic so vast that no one of them could overtake the others, only occurred on a national level.  In the states, only the constitutional promise of a “republican form of government” remained, and it proved to be a delicate protection.  At stake were the principles of political legitimacy, found only in a government that could resist corruption, again, by “serving the whole.” They were principles that “advanced the well-being of the community as a whole or promoted a true ‘public purpose’ and to strike down legislation that (from their perspective) was designed to advance the special or partial interests of particular groups or classes.” The goal was a government that did not “play favorites,” or allow one interest to pursue its advantage at the expense of others.  But for many, Gillman writes, “America’s social revolution necessitated a concurrent revolution in political thought and practice.” Local reformers lost faith in their own abilities, and began to believe that the way to meet their ends was found only in state power.  “Many had become convinced that in the context of the coercion embedded in industrial markets a continuing insistence on state neutrality in fact biased the system in favor of powerful classes.”[50] With this, the Constitution was “besieged,” with its usual defenses forced back, and its last holdout found only in the Supreme Court.  It was precisely this kind of problem that made judicial independence so important.  It fell to them, Gillman argues, to deal with a raw reality that had been reserved for the political process; they faced a new American regime, whose merits could not possibly ensure the same government neutrality as the old one.  They were forced to formulate new arguments about what was and was not legitimate use of police power – and in that, restate precisely what the Constitution was for.

 

The Court pursued this task the only way they could: by seeking and applying the rule as it was handed down to them.  This did not result in their repeatedly striking down any legislation that infringed on the right of contract, as the conventional account would hold.  It was instead to pursue an understanding of government that was “avowedly hostile to an overtly class-based politics,” Gillman writes.  This did not mean that government could play no role at all in regulating industry; it meant only “that any such interference or regulation had to be justified in terms unrelated to the desire to service the ‘private’ interests of groups engaged in economic competition.” This restrained view of regulation assumed that many of the social ills caused by bad industry really could be addressed at the local level.  But national confidence in the power of democracy was greatly dwindling: between the power of the state and the disparity of political influence among economic elites, “the determination of small farmers, stump speakers, and some sympathetic newspaper editors to transform existing social relations was simply insufficient.”[51]

 

Gillman makes it especially clear, though, that a sound revision of the Lochner Era does not at all mean the redemption of laissez-faire principles or the “right of contract.” That is the standard accusation; there is little point in reviving and defending it in his view.  While first principles of this kind can easily justify limited government, they can just as well call for a radical increase in regulation and other progressive visions: one political philosophy defends the right to property, while another defends the power of the state to create a Crolyite “Great Community.” Yet there is no difference, and there can certainly be no preference, between these conflicting moralities in the eyes of the law.  “Equality, state neutrality, and a demonstrable relationship to the general welfare were the central preoccupations of late-nineteenth-century constitutionalism, not liberty or laissez-faire specifically.” Joseph Lochner’s own attorney based his brief on cases that looked entirely to the problem of class legislation, demonstrating “that the focus of the discussion in the brief centered not on liberty of contract,” Gillman writes, “but rather on the issue of impartial treatment and, especially, whether the special classification used in the state could be rationalized in terms of a legitimate police power.”[52]

 

Were the justices as “formalist” as the conventional account holds, standing by their principles of natural rights and the meaning of property, legal realism would have easily damaged their position, or at least exposed the laissez-faire idealists for what they were.  But this was hardly the case, Gillman writes, precisely because the justices were quite open to realism: “From the point of view of the of legal reformers the ‘new realism’ of sociological jurisprudence achieved some successes,” Gillman writes.  It was not the persuasive appeal of the new realism that mattered nearly so much as the old realism that the justices maintained.  The movement “did little to erase the distinction between illegitimate class legislation and legitimate general welfare legislation.” In this transition, the “liberty of contract” never emerged as a thing to be pursued or avoided according to Gillman.  Not that “liberty of contract” was irrelevant: it was simply not a goal that the Supreme Court could, or even should, seek.  It was instead a natural consequence of avoiding class legislation; that alone was sufficient for the market to thrive.  Market freedom was, after all, “not freedom from all restraint; it was freedom from the corrupt use of power by competing social groups,” Gillman writes.  “Market freedom, or ‘liberty of contract,’ was linked inextricably with the commitment to faction-free legislation.”[53] It was this – not laissez-faire principles or “liberty of contract” itself – that stood in opposition to the new regime, which would open itself up to whatever philosophy could capture it first.

 

It was therefore much later in the twentieth century that the Supreme Court entered the business of giving new rights.  With the neutral state broken and gone, and unlimited regulation the norm, it became necessary for the Court to develop “some method of identifying a specific set of rights and liberties that could be asserted by individuals as a trump against the state.” But the question is, of course, which rights?  Which among those rights should be deemed “fundamental”?  The story of liberty since Griswold v. Connecticut in 1963 is, of course, known to all.  But Gillman wishes to make clear that those who accept the conservative side of the Lochner Era myth do more to advocate this view than defeat it.  “If nothing else,” he concludes, “I hope this study helps remove that weapon from their hands.”[54]

 

It is not correct, though, to blame the economic brand of “conservatives,” as Gillman sees them, for the legacy of Lochner.  There are indeed those who look back to the Court of that era as showing the correct approach to judicial review of regulatory laws.  But there are far more who see neutral government having a clearer purpose than what Gillman admits: it was, after all, the view of the Founders that the purpose of government is to protect certain unalienable rights, and that the only legitimate government was one that was founded by consent of the governed.  The governed would only consent, of course, if they could see in the proposed system a way to ensure their rights – and the right that was most obvious was property, both keeping and pursuing it.  This is especially clear in the writings of James Madison.  While he was the architect of government neutrality, Madison could still recognize that “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.” Impartiality is the means; but “whatever is his own” is the goal, the end for which that means is intended.  Accordingly, “[t]hat is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest,” he wrote.

 

That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.[55]

 

Gillman is not particularly concerned with this aspect of Madison’s thinking.  It is, of course, not as prominent in Madison’s political philosophy as the extended republic and his method of checks and balances – the low-but-solid safety net of liberty that would limit government.  But the end of government was still there, and it cannot be ignored.

 

B.  The End: Fundamental Rights in Economic Liberty

 

While some separate the method of Lochner v. New York from the outcome, others see the outcome itself as important – which in turn justifies the method.  There is far more to the ruling than the mere scrutiny over the effect and justification for law: there is the right of contract at stake, and the right to property that it presupposes.  These things are just as relevant today as they were then.

 

As we might imagine, this view is as rare in the legal-historical scholarship as it is in the Supreme Court.  An article from the Harvard Law Review, written anonymously, points out that since 1937, “the Supreme Court has not struck down a single economic regulation on substantive due process grounds.  Although the Court has never explicitly rejected the idea that liberty guaranteed by the fifth and fourteenth amendments includes some protection of economic rights, its scrutiny of economic and social legislation is so lenient that no law is ever likely to be declared invalid.” The author blames the “’progressive’ premises and prejudices” that have dominated constitutional law for decades.  The rebirth of libertarian thought, however, does not call for anything new in judicial review: if the Court began taking economic rights seriously and interpreting the Constitution as it should, it “might be revived with minimum of constitutional disruption.”[56]

 

Still, what the author gives is a “program for judicial activism.” Rather than conforming constitutional law to changing baselines, it would include economic rights into the protection of personal autonomy that it has invoked in so many other cases.  It would bring back the basic principles of Lochner v. New York, ensuring that regulatory laws are made to fit their end, and test whether or not state and local governments are abusing their power at the expense of fundamental economic rights.  The author acknowledges Sunstein’s error.  One cannot truly say that the Lochner Era was defined entirely by this kind of activity: “more regulations challenged on due process grounds were upheld than struck down,” he writes.  But this was because of the Court’s attempt to devise a constitutional principle: it had far more to do with how “the activist Lochner Court practiced a certain amount of judicial restraint.” Had they been true to their principles, they would have avoided such self-restraint and defended the right of contract, both as a fundamental precept of freedom and as a right stated in the Fourteenth Amendment.  The greatest promise to former slaves was a basic condition of equality in American life; since it couldn’t promise them social equality, it guaranteed basic civil rights.  But this meant clarifying exactly what those civil rights consisted of for individual persons, and the only clear and reliable answer was the right of contract.  This was explicit in the Civil Rights Act of 1866, the author argues, and that in turn informed the Fourteenth Amendment’s broader protections.  “It was drafted to protect all citizens, not just former slaves, from restraints enacted by the states,” the author writes. “Recognition of economic liberties and contractual freedom respects the individual’s autonomy and his ability to make decisions concerning his interests.”[57] Indeed, what is the difference between the right to engage in contract, and the right to engage in “certain intimate conduct”?[58] How could the modern concept of liberty-as-autonomy exclude such a thing?

 

This, of course, is not the norm of criticism among Lochner Era revisionists.  As the author practically admits, hard libertarians understand the role of the Supreme Court – an institution that might limit government down to nothing – the same way current progressives understand it – as the body that creates and steers the direction of evolving social values.  In neither case do they even try to discern the true purpose of the Court itself.  While it is a pure ideal that has little awareness of the particulars of the American political system, it still informs many studies in Lochner Era revisionism.  The purpose of this revisionism is to state an imperative that such rights must be absolutely protected, as the Court frequently does with other fundamental rights.

 

Richard Epstein, for instance, points out the radical emphasis of Progressive Era assumptions as the Court deals with “prejudice against discrete and insular minorities.” There may be a special condition, according to Justice Harlan Stone in his famous footnote four, “which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”[59] While that protection included religious and ethnic minorities, Epstein writes, it tends to greatly exclude those who seek to pursue and preserve their property rights – not under the Due Process Clause, nor the Equal Protection, nor even the Takings Clause.  The failure of the political process to protect basic rights does indeed require judicial correction, Epstein argues: “[T]here is nothing wrong with Stone’s instinct that the court must intervene in those cases in which the political process breaks down.  Nor is there any reason to quarrel with his view that the breakdown of the political process was must acute and least defensible in the areas of race and religion that he identified in Caroline Products.” It should be just as easy to identify “the victims of oppressive legislation are large corporations that lack inside political clout” as it is the victims or racism and religious bigotry.[60] True, it is much easier to identify discrimination against ethnic and religious minorities, and it invokes far greater feelings of national guilt and longing for redemption.  But those groups are no better off, and the Court has no more fulfilled its essential function, when others are still oppressed without a second thought simply because their associations are economic.  Hostility toward “the rich,” it seems, is always justified.

 

It may be merely an act of prudence to say that economic rights deserve an equal place alongside civil rights and liberties.  But there seems to be more than mere prudence involved in the libertarian reading of the Lochner Era: economic liberty is little more important than reproductive privacy; they are not concerned with the goodness of economic freedom nearly so much as giving it a fair place alongside the Court’s current duty to protect civil rights and personal liberties.  This is quite different from the view that sees economic liberty as the bedrock for the purpose of government – one which looks to checks and balances and representation as the way to ensure government neutrality, rather than the sole power of judicial review, and which also sees the Court’s intervention as a way of returning to those timeless principles rather than a way to expand the “baseline” to the rights that free-market-types happen to prefer.

It is better, in David Bernstein’s view, to establish precisely why property rights are so essential.  Gillman’s interpretation of the Lochner Era, however insightful about the Court’s concerns over government neutrality, is not quite immune to Sunstein’s criticism: such neutrality really is in favor of one interest group, however inadvertent that favoritism may be.  Gillman’s thesis sees only one side of the story: rather than aiming at the good, it focuses exclusively on the Court’s avoidance of the bad – a wise precaution, to be sure, but not the highest purpose of a free government.  Bernstein points out how such an inquiry would require the Court to scrutinize legislative motivation; yet “if classification was deemed arbitrary, legislative motive was irrelevant.  What was important was that legislative classification was either arbitrary on its face or reasonable people would deem it arbitrary.” They were not as concerned with impartial regulatory laws nearly so much as the actual right that the minority was deprived of.  The most important demonstration of this comes from Lochner v. New York itself.  It would have been easy to construe the legislation in question as “class based”: large bakeries benefited from sinking their smaller competitors through the regulatory laws; they could afford to comply with the hours legislation.  But this, Bernstein writes, is simply reading a narrow hypothesis into the Court’s words.  Class legislation was certainly an issue, but it was not the only issue, nor was it the thing that made the statutes unconstitutional.  “When the Lochner Court did invalidate regulatory legislation, it consistently relied on liberty of contract arguments under the Due Process Clause rather than class legislation arguments under the Equal Protection Clause.” After Lochner, the Court “relied on due process as the basis for protection of fundamental rights such as liberty of contract against arbitrary legislation,” meaning that the “equality component of due process was minimal, if it existed at all.”[61]

To treat the Lochner Court as Gillman does, according to Bernstein, is to fall into the same trap as many other modern theories of historical deconstruction – again, a trap fundamentally no different from Sunstein’s attempt to concoct a “useful history” for present purposes.  The ideas that the Court sought to protect were the precepts of free government that the Founders left them – precepts that are not created, but discovered.  They can be rejected and denied for the sake of “better” things; but those who do the denying in practice must accept what follows: that there is no basis for liberty in any sense.  This was what the Supreme Court was after in the Lochner Era, according to Bernstein.  “The Supreme Court’s desire to protect fundamental liberties under the Due Process Clause primarily motivated its Lochnerian jurisprudence,” he writes.  The justices followed the same legal philosophy as all judges before them, knowing that the United States “had an unwritten constitution, one that complimented and supplemented the written document.” Government had practical constraints, as Gillman points out; but it was “constrained by both the written Constitution and unwritten natural law.” Where the practical limits on government protected rights to some extent the true genius of the system was when the judiciary, even at the state level, “was the ultimate guardian of American constitutional liberty.”[62] The Supreme Court was as sworn to protect the philosophic constitution just as the written one, according to Bernstein – and this included the fundamental right to property, and the liberty of contract that ensured that property.

 

Much to their credit, Bernstein writes, the Justices of the Lochner Era knew that there was a danger in this approach to judicial review.  Justice Holmes’ criticism was at least partly legitimate, contrary to Gillman’s claim that it was, “to a large extent, somewhat beside the point.”[63] It was not that the Constitution embodied no specific theory; were that the case, as Holmes saw it, judicial review would actually be the “potential for fundamental rights jurisprudence to allow judges to read their own views into constitutional law,” Bernstein says.  Instead, it embodied, and continues to embody, a specific philosophy of rights, and a clear view of that philosophy was the thing that was sure to constrain judges – or, more importantly, constrain state and national legislators when the need arose.  The Court was simply applying the first principles of free government when it struck down such legislation, not enforcing their own values.  “Lochnerian jurisprudence was therefore tempered by the norm that the scope of judicially-enforceable fundamental rights, including liberty of contract, needed to be limited to what was necessary to maintain practices and norms that were essential to the establishment and growth of [Anglo-] American society.”[64] Thus, Howard Gillman’s popular revision of the Lochner Era is flawed, focusing on only a small aspect of the Court’s task at the expense of its true intent – or worse, claiming to understand the Court better than it understood itself by imposing a pet theory onto the Court’s actions while all the while ignoring its words.[65]

 

Bernstein’s interpretation of the Lochner Era is considerably wiser than the conventional libertarian defense.  Fundamental rights are real, he claims, yet they need to be defended as aspects of the Constitution’s intent.  While others would simply vindicate Lochner by celebrating the modern Court’s strong defense of “privacy,” and then extending that privacy to include property rights, Bernstein reminds us of how property, and the liberty of contract, is something far greater: an expression of the spirit of modern republicanism, and what supports the basic precepts of free government.  The Taft Court, or the middle part of the Lochner Era, “represented the last gasp of classical liberal principles in American public life for decades to come,” he writes.  Lochner re-affirmed the critical classical liberal foundations of the Constitution; yet those foundations “could not survive the strains of the Great Depression.” All support among the intellectual classes failed, while the public increasingly called for radical government intervention.  With this, “the Court’s commitment to limited government classical liberalism seemed outlandishly reactionary to much of the public.”[66] The Lochner Era Court sought to show the nation that there is only one baseline.  It was latent in ancient and medieval political philosophy; it was revealed more clearly by classical liberals like John Locke and Adam Smith; it informed the most basic purpose of government for figures like James Madison and Alexander Hamilton; and it will continue to be the basis for all rights and liberties so long as the Constitution endures.  There were good and sensible reasons for government regulation in the Lochner Era.  The problem, though, was the progressive justification for that regulation: though such regulations came from democratically elected state legislatures, they allowed those regulations to affect the very precepts that made democracy possible.  For this reason, the Court was compelled to review those laws, and ensure they were passed for reasons that did not undermine the purpose of the Constitution.

 

Still, for all his defense of that great tradition, Bernstein finds few purposes for the Court besides protecting fundamental rights.  Privacy rulings, for instance, are no less important for the Court: they are simply guilty of using the idea of first principles in the wrong way, when they should focus on class legislation.[67] Bernstein’s interpretation of the Lochner Era could be enhanced, I believe, by a more thoughtful reconsideration of the Court’s practical concerns.

 

Conclusion

 

In the historical legal literature on the Lochner Era, we witness two conflicting schools of thought.  One is concerned with revising the conventional account of the Supreme Court’s activity in order to show class legislation as the fundamental concern.  The other seeks to affirm the conventional account on new grounds, vindicating the role of liberty of contract in the American constitutional system.  David Bernstein looks exclusively to the fundamental rights in the same way that Howard Gillman looks only at the Court’s scrutiny over class legislation.  Here we find two essential components – the ends of government, and the means to those ends – avoiding each other in ways that prevent us from truly understanding the Supreme Court in the Lochner Era, much less the Court in our own time.  This dissertation will be a study in the dual nature of the Court’s jurisprudence in this era, one that combined both of these views.  I believe both of these interpretations are correct, and that a clearer understanding of the Lochner Era depends on reconciling the relationship between the means and ends of government.

 

 

 

Bibliography

Publications

Arkes, Hadley.  The Return of George Sutherland.  Princeton: Princeton University Press, 1997.

 

Beard, Charles.  An Economic Interpretation of the Constitution of the United States.  New York: Free Press, 1913.

 

Belz, Herman.  Living Constitution or Fundamental Law?  Lanham: Rowman & Littlefield, 1998.

 

Bernstein, David.  “Lochner’s Legacy’s Legacy.” Texas Law Review, No. 1, Vol. 82, 2003.

 

Bingham, Joseph W. “What is the Law?” 11 Michigan Law Review 1, 109, 1912.

 

Binney, Charles.  “Restrictions Upon Local and Special Legislation.” American Law Register, 1892.

 

Bird, Francis W.  “The Evolution of Law in the Decisions of the United States Supreme Court.” Columbia Law Review 13, 1913.

 

Cooley, Thomas.  “Labor and Capital Before the Law.” North American Review 139, 1884.

 

_____.  A Treatise on the Constitutional Limitations Which Rest upon the Legislative Powers of the States of the American Union.  Boston: Little Brown, 1868.

 

Corwin, Edward.  “The Supreme Court and the Fourteenth Amendment.” Michigan Law Review 645, 1909.

 

_____. “The Doctrine of Due Process Before the Civil War.” Harvard Law Review, 1911.

 

Cushman, Barry.  Rethinking the New Deal Court.  Oxford: Oxford University Press, 1998.

 

Dicey, A.V.  The Law of the Constitution.  London: Macmillan & Co., 1885.

 

Epstein, Richard.  “The Mistakes of 1937.” George Mason University Law Review, 5 (1988)

 

Fiss, Owen.  “Forward: The Forms of Justice.” Harvard Law Review 93 (1979).

 

_____.  “Objectivity and Interpretation.” Stanford Law Review 34 (1982).

 

Frank, Jerome.  Law and the Modern Mind.  New York: Peter Smith Publishing, Inc., 1985.

 

Frankfurter, Felix.  “Hours of Labor and Realism in Constitutional Law,” Harvard Law Review 23, 1916.

 

_____.  “The Business of the Supreme Court of the United States: A Study in the Federal Judicial System.” Harvard Law Review 3, 1926.

 

Gillman, Howard.  The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence.  Durham: Duke University Press, 2004.

 

Hand, Learned.  “Due Process of Law and the Eight Hour Day.” Harvard Law Review 495, 1908.

 

Havenkamp, Herbert.  “The Political Economy of Substantive Due Process.”  Stanford Law Review, 40, 1988.

 

Hohfeld, Wesley. “Some Fundamental Conceptions as Applied in Judicial Reasoning.” Yale Law Journal 16, 1913.

 

Hughes, Charles E.  “Some Aspects of the Development of American Law.” Proceedings of the New Your State Bar Association 3, 1926.

 

Jurow, Keith.  “Untimely Thoughts: A Reconsideration of the Origins of Due Process.” American Journal of Legal History 19, 1975.

 

Kens, Paul.  Lochner v. New York: Economic Regulation on Trial.  Lawrence: University of Kansas, 1998.

 

_____.  Judicial Power and Reform Politics: The Anatomy of Lochner v. New York.  Lawrence: University of Kansas, 1990.

 

Langdell, C.C. “Harvard Celebration Speeches.” Law Quarterly Review 123, 1887.

 

Llewellyn, Karl. “A Realistic Jurisprudence – The Next Step.” 30 Columbia Law Review 431, 1930.

 

Mason, Alphus.  “Mr. Justice Brandeis: A Student of Social and Economic Science.” University of Pennsylvania Law Review, 1931.

 

Mavrinac, Albert A. “From Lochner to Brown v. Topeka.” American Political Science Review 52, 1958.

 

McBain, Howard Lee.  The Living Constitution.  The Macmillan Company, 1937.

 

McClosky, Robert G. “Economic Due Process and the Supreme Court: An Exhumation and Reburial.” The Supreme Court Review, 1962.

 

Nelson, William.  The Fourteenth Amendment: From Political Principle to Judicial Doctrine.  Harvard: Harvard University Press, 1988.

 

Robert G. McClosky, The American Supreme Court: Third Edition.  Chicago: The University of Chicago Press, 2000.

 

Merrill, Maurice H. “Three Possible Approaches to the Study of Administrative Law.” Iowa Law Review, 1933.

 

Patterson, Edwin W. “Legislative Regulation and Unwritten Law.” Iowa Law Review, 1933.

 

Pound, Roscoe. “The Causes of Popular Disaffection with the Administration of Justice.” American Law Review 144, 1907.

 

_____.  “Liberty of Contract.” Yale Law Journal 454, 1909.

 

_____. Introduction to the Philosophy of Law.  Yale: Yale University Press, 1922.

 

Seigan, Bernard.  “Rehabilitating Lochner,” San Diego Law Review 22, 1985.

 

Sutherland, George. “Private Rights and Governmental Control.” American Bar Association Reports, 1917.

 

Tiedeman, Christopher.  The Unwritten Constitution of the United States.  New York: G.P. Putnam Sons, 1890.

 

Warren, Charles.  “A Bulwark to the State Police Power – The United States Supreme Court.” Colombia Law Review 13, 1913.

 

______. “The Progressives of the United States Supreme Court.” Colombia Law Review, 1913.

 

Wolfe, Christopher.  Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law.  Lanham: Rowman & Littlefield, 1994.

 

 

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