May 11, 2017
My interest in American history and constitutional history prompted me to read this new book, "Rehabilitating Lochner: Defending Individual Rights against Progressive Reform" (2011) by David Bernstein. Bernstein in the Foundation Professor at the George Mason University School of Law in Virginia. The book is published under the auspices of the Cato Institute.
Bernstein's study examines the decision in and subsequent historical reception of a 1905 decision of the United States Supreme Court in Lochner v. New York, 198 U.S. 45. In Lochner, the Supreme Court by a vote of 5-4 held unconstitutional a New York statute that limited the working hours of bakers to ten hours per day and 60 hours per week. The decision was to achieve notoriety in American constitutional law. I remember well discussions of the decision in my law school studies of more than thirty years ago.
To many legal scholars and historians, Lochner has become emblematic of a rejected jurisprudence in which judges used their own policy preferences and economic theories to invalidate legislation under the guise of constitutionalism, particularly, in this case, under the "due process" clause of the Fourteenth Amendment: "nor shall any state deprive any person of life, liberty, or property without due process of law." In Lochner, five members of the Supreme Court in an opinion by Justice Peckham ruled that the New York statute deprived bakers and their employees of their right to "liberty of contract" -- to make a contract to dispose of their labors, in derogation of the Fourteenth Amendment. Three members of the Court, in an opinion by Justice Harlan, agreed that the Fourteenth Amendment protected liberty of contract, but they concluded that the New York statute was enacted to protect the health of the bakers and of the public and thus did not violate liberty of contract. Only one member of the Lochner Court, Justice Holmes in his own celebrated separate dissent, rejected liberty of contract as a means for invalidating state legislation. Holmes concluded that the case was decided on the basis of an economic theory with which many people would disagree and observed tartly that "the Fourteenth Amendment does not enact Mr Herbert Spencer's Social Statics."
Holmes' dissent became a major component of the Progressive school of legal reform which eventually triumphed during the New Deal. Broadly, the Progressives held that courts were not to substitute their judgments for legislative judgments in considering the constitutionality of economic legislation but instead were to accord substantial deference to legislative determinations. The Lochner decision and its successors, in contrast, are based upon a theory that the Constitution protects certain individual rights, to "life, liberty, and property" and that the Court is to enforce these rights even as against the will of the majority.
As the title of the book suggests, Bernstein tries to "rehabilitate" Lochner and its form of reasoning against Progressive jurisprudence. He does not try to show that the result in Lochner was correct, (Bernstein seems highly sympathetic to the approach of Harlan's dissent, but not of Holmes's dissent). Instead, Bernstein tries to explain the origins of "liberty of contract" in prior Court decisions with their skepticism towards class-based legislation and their sympathy towards natural law and natural rights jurisprudence. Bernstein wants to show that Lochner, although it may have been wrongly decided, was not an illustration of judicial malfeasance or economic, class-based decision making but rather was a plausible attempt to protect individual rights as these rights had been developed in American law. Bernstein thus examines the rather murky sources of the "liberty of contract" doctrine. He examines the statute construed in the Lochner case and the case itelf, which was not brought by "big business" or "large-scale capitalism" but by a small, struggling entrepeneur. Bernstein considers the three opinions in Lochner by Pechkam, Harlan, and Holmes. Bernstein observes that Holmes' reference to "Spencer's Social Statics" does not accues the Court of social darwinism, as frequently assumed, but rather of libertarianism, a different matter. Bernstein's account of the case is valuable, but he might have paid more attention to the inflated rhetoric of the Court's majority decision.
After discussing the Lochner decision itself, Bernstein examines the individual rights jurisprudence he finds in that case. He contrasts Lochner with the Progressive jurisprudence which is deferential to government in economic matters, in cases involving sex discrimination (especially cases which involved regulation of working hours and working conditions of women), race, and civil liberties in the pre-New Deal Era. He argues that the Lochner precedent and the Justices which followed it tended to be more protective of individuals, including women and minorities than their Progressive counterparts. He examines some cases that will be familiar to legal students and some than may be obscure, including, Buchanan v. Warely, 245 U.S. 60 (1917) in which the Court invalidated a state zoning law restricting certain residential areas to white people. Bernstein concludes that, contrary to much received opinion, Lochnerian jurisprudence was at least as protective of individual civil rights as was Progressive jurisprudence.
The final sections of Bernstein's book examine post-New Deal and modern cases. Paradoxically, in these cases Lochner is vilified while at the same time the Court tends to find unenumerated, non-textual individual rights in the Due Process clause of the Fourteenth Amendment. These rights include, of course, Brown v. Board of Education and its progeny. But they also include, much more questionably and controversially, Griswold and Roe v. Wade. As many legal scholars have done, Bernstein asks how due process jurisprudence can be rejected in cases involving economic regulation on the one hand while expanded in cases involving claimed personal liberties on the other hand. Lochner's jurisprudence, Bernstein argues, has been used even while it has been condemned. Bernstein concludes (p. 124) that "Lochner's legacy, then, lives on in American constitutional law, in the application of various rights, enumerated and unenumerated, against the states via the Due Process Clause.... Contemporary Fourteenth Amendment civil liberties jurisprudence owes more to the views of Justices Harlan, Pechham, Sutherland, and McReynolds than to Holmes, Brandeis, and Frankfurter and their skepticism of constitutional protection for individual rights." "A more accurate view of constitutional history" Bernstein maintains, "would therefor lead to a more nuanced, civil, and constructive debate about modern constitutional law" providing "reason enough to rehabilitate Lochner." (p. 129)
Bernstein has written a challenging, provocative book about American history and constitutional law and about the tendency to make too easy assumptions of whatever type. No one legal theory or philosophy has a monopoly on the truth to the exclusion of all others. I was glad to revisit these important issues in this book. The primary audience of this book will likely be historians and students of constitutional law.