Rehabilitating Lochner: Defending Individual Rights against Progressive Reform [Hardcover]

David E. Bernstein (Author)

Book Description

Publication Date: May 15, 2011

In this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of Lochner v. New York. This 1905 decision invalidated state laws limiting work hours and became the leading case contending that novel economic regulations were unconstitutional. Sure to be controversial, Rehabilitating Lochner argues that the decision was well grounded in precedent—and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents.
 

Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, Rehabilitating Lochner argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since.

 

 

(20110627)

Editorial Reviews

Review

"Rehabilitating Lochner is intellectual history in its highest form. . . . Bernstein has done nothing less than explode the myth of Lochner, a decision that any pro-liberty student of American constitutional law should embrace. This is a book that will transform the way constitutional law is understood for years to come."—EH.net

(Scott Douglas Gerber EH.net 20110704)

"As every law student know, Lochner was a case in which a court packed with business sympathizers stuck it to the little guy in a shameless display of judicial activism. But, like a surprisingly large number of things everyone knows, this conventional wisdom is almost entirely wrong, and David E. Bernstein''s new book, Rehabilitating Lochner, makes clear just how wrong it is—and how and why the Lochner narrative became established in the legal academy. . . . The false narrative of Lochner has controlled the past for decades but Bernstein''s clear and incisive work may wrest that control away and move us back to the truth."—Glenn Reynolds, Commentary

(Glenn Reynolds Commentary 20111103)

“An exhilarating book full of interesting new perspectives. Rehabilitating Lochner will change the way people think about the transition from the late nineteenth century to the modern New Deal and Civil Rights regime. It does what good revisionist history should do: see what is familiar in new ways.”—Jack M. Balkin, Yale Law School

(Jack M. Balkin Yale Law School 20120101)

“[Bernstein] attempts the grand task of “correcting decades of erroneous accounts” and succeeds with aplomb, and notable timeliness. The story of how Joseph Lochner fought legislators and unions to bake his goods in freedom goes especially well with tea.”—National Review

(National Review 20121215)

“David Bernstein drives home powerfully and convincingly the fact that the supporters of Lochner were the biggest proponents of protecting the personal rights of African Americans, Roman Catholics, and other minorities. Rehabilitating Lochner will have a profound impact on constitutional law scholarship.”—William E. Nelson, New York University

(William E. Nelson New York University 20120201)

“A terrific work of historical revisionism, Rehabilitating Lochner brings out some attractive resonances in libertarian themes associated with the widely disparaged constitutional jurisprudence of the period from 1905 to 1937, and some discordant undertones to the Progressive themes sounded during that period.  It should induce some changes in the way many students and scholars read the cases from that period.”—Mark Tushnet, Harvard Law School

(Mark Tushnet Harvard Law School 20120208)

"Rehabilitating Lochner is about a U.S. Supreme Court decision that generations of lawyers and law students have been taught to scorn as the imposition of obsolete economic dogma disguised as constitutional principle. Comes now David E. Bernstein to set the record straight. . . . Not all will find unchallengeable every point the author makes. Yet all will broaden their understanding of our national charter and what the Supreme Court has done with it over the past century or so."—New York Law Journal

(Walter Barthold New York Law Journal )

“David E. Bernstein takes issue with conventional wisdom and argues that if one understands the larger context and broader stream of historical development, Lochner was a ‘good law’ at the time and, despite the fact that it was overruled, its core principles remain good constitutional law today. This is a delightful and informative book that deserves a broad audience.”—Choice

(Choice )

"Rehabilitating Lochner does what it sets out to do very well. It places Lochner in its historical context, telling us where it came from, what it actually did, who attacked it, and what those people believed. . . . I highly recommend it to anyone interested in the topic."—Independent Review

(Independent Review )

"Rehabilitating Lochner is a sharp and iconoclastic work of scholarship, one that challenges the deepest beliefs of those who defend almost omnipotent government."—Carolina Journal

(George Leef Carolina Journal )

 In this thought-provoking volume, law professor David E. Bernstein attempts, as the title states, to “rehabilitate” the Lochner decision and place it in its proper historical context. . . .The book is a valuable corrective to the work of historians who might reflexively sympathize with the Progressives and the criticisms of the Lochner decision. . . . Bernstein approaches the material with a fresh perspective and a cogent analysis that questions both the received wisdom about the Lochner era and the categories that legal scholars have established to create distance between that era and our own, between judicial defense of civil rights and the judicial defense of economic liberties.”—H-SOUTH



 

(Mark Koyama H-SOUTH )

About the Author

David E. Bernstein is Foundation Professor at the George Mason University School of Law and the author of several books, including, most recently, You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws.

 

Product Details

• Hardcover: 208 pages
• Publisher: University Of Chicago Press (May 15, 2011)
• Language: English
• ISBN-10: 0226043533
• ISBN-13: 978-0226043531
• Product Dimensions: 9.1 x 6.1 x 0.8 inches
• Shipping Weight: 15.2 ounces (View shipping rates and policies)
• Average Customer Review: 4.7 out of 5 stars  See all reviews (6 customer reviews)
• Amazon Best Sellers Rank: #147,071 in Books (See Top 100 in Books)
  • #54 in Books > Law > Business > Contracts
  • #93 in Books > Law > Legal History

More About the Author

David Bernstein (George Mason) is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995. He was a Visiting Professor at Georgetown University Law Center for Spring 2003 semester, at the University of Michigan School of Law for the 2005-06 academic year, and at Brooklyn Law School in Fall 2006.

Professor Bernstein is a nationally recognized expert on the Daubert case and the admissibility of expert testimony, and he is a past chairperson of the Association of American Law Schools Evidence section. Professor Bernstein is the coauthor of The New Wigmore: Expert Evidence (Aspen Law and Business 2003; 2d edition 2011), and coeditor of Phantom Risk: Scientific Inference and the Law (MIT 1993).

Professor Bernstein is also an expert on the "Lochner era" of American constitutional jurisprudence. He is the author of Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke 2001), and of Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011).

Professor Bernstein is also the the author of You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (Cato Institute 2003).

In addition to his books, Professor Bernstein is is the author of dozens of frequently cited scholarly articles, book chapters, and think tank studies, including articles and review essays in the Yale Law Journal, Michigan Law Review (2), Northwestern University Law Review, Texas Law Review (2), Georgetown Law Journal (2), Vanderbilt Law Review, California Law Review, Washington University Law Review, North Carolina Law Review, Boston University Law Review, and Iowa Law Review.

At George Mason, David Bernstein teaches Products Liability, Evidence, Constitutional Law I and II, and Expert and Scientific Evidence. He is a contributor to the popular Volokh Conspiracy blog.

Customer Reviews

Most Helpful Customer Reviews

27 of 29 people found the following review helpful:

5.0 out of 5 stars Lochner and Constitutional History, June 18, 2011

By 

Robin Friedman (Washington, D.C. United States) - See all my reviews
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This review is from: Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (Hardcover)

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 jursisprudence 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 villified 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.

Robin Friedman

19 of 20 people found the following review helpful:

5.0 out of 5 stars One of the best works of Constitutional history I have read, June 8, 2011

By 

MT57 (USA) - See all my reviews

This review is from: Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (Hardcover)

This slim volume is pithy and thought provoking. As the introduction says, "Lochner is likely the most disreputable case in modern consititutional discourse". President Obama equated it to the Dred Scott decision. It has been reduced to an epithet, an emblem of arrogant judicial lawmaking, and worse, of siding with "capitalists over workers" as the author aptly says. The author takes on the daunting task of challenging this conventional wisdom, "rehabilitating" Lochner and the doctrines associated with it. He succeeds brilliantly.

In chapter 2, he lays out facts about the Lochner case itself that one never learns about in Con Law. Far from being a law to protect workers from oppresive employers, he demonstrates that the law overturned by Lochner was sponsored by the biggest employers in the baking sector in New York, to cut out competition from mom and pop and neighborhood bakeries, often owned by more recent immigrants than the established families that owned the large bakeries.

He locates the Lochner opinion in context of other state and federal opinions of the time, some of which fall to its left and others of which fall on the right along side it, and succinctly explains how the "substantive due process" label both fits, and doesn't fit, the underlying jurisprudence.

In chapter 7, he traces how Lochner went from being just another Supreme Court decision to the epithet it has now become, through prominent casebooks used in law school to Professor Tribe's treatise on the subject.

He traces the crippling of the doctrine of liberty of contract in chapter 6, and does a much better job in that single chapter than others have done in much longer works. He has single sentences that convey as much information as many law review articles.

He shows with devastating effect how early 20th century "progressive" legal minds such as Frankfurter and Brandeis, despised Lochner not in isolation, but because they despised all assertions of individual liberty against popular will, going so far as to advocate the repeal of the "due process" and "equal protection" guarantees of the Fourteenth Amendment.


He shows in chapters 4 and 5 how the adherents to Lochner's vision of strong individual liberty were among the most radical of their day in terms of validating women's rights, immigrants' rights to their native culture and language, and racial equality, while the "progressives", with their demands for judicial restraint, are shown to be stubborn obstacles to greater equality for women and African-Americans. The author shows how the Lochner era cases asserting individual liberty against government restrictions were cited as authority modern cases upholding the "right to privacy", beginning with Griswold v Connecticut, holding that citizens had a Constitutional right to purchase contraceptives and invalidating state laws restricting same. Inevitably, then, the expansion of that doctrine then provides intellectual ammunition for re-establishing a liberty of contract, and we wind up in 2010 with liberty-based challenges to the individual mandate in the Affordable Care Act of 2010 and a note in the 2010 Supreme Court review in the Harvard Law Review calling for "greater judicial investigation" of economic legislation under the Fourteenth Amendment's "privileges and immunities" clause, particularly of laws that restrict the right to pursue an occupation. Some say the First Amendment has become "the new Lochner" - in an information economy, free speech and economic liberty tend to blur. If I had to have one criticism of this book, (and I don't really, but every review is supposed to have one, I guess) it is that the author does not expressly address this fascinating development in which the privacy cases are starting to circle back and support renewed economic liberty arguments, although it is there quietly lurking in the background. I'd also note that the book is largely chronological and I humbly suggest the order of topics in which I laid out this review above might have been a better one.

It's incredible you get this all in only 129 pages! There are 54 pages of endnotes, to give you a sense of how thoroughly and comprehensively he has backed up his analysis and acknowledged competing viewpoints.

24 of 27 people found the following review helpful:

5.0 out of 5 stars Changed My Understanding of Constitutional History, June 3, 2011

By 

Zebulun - See all my reviews

This review is from: Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (Hardcover)

In my constitutional law class, my understanding of Lochner was as follows: The Supreme Court essentially made up the right to liberty of contract around 1900, and used that right to subvert needed economic reform while ignoring the rights of minorities and others. Wise Justices like Holmes saw right through the majority, and revealed that they were simply trying to impose the Justices' anti-labor preferences on the country at large. Meanwhile, Holmes and his colleague Brandeis started to redirect the Fourteenth Amendment away from the protection of property and contract rights toward the protection of civil liberties. In the 1930s, the anti-Lochner forces won, and Holmes and Brandeis's Progressive vision came to dominate constitutional law.

The thrust of Rehabilitating Lochner is that all of this is conventional wisdom, yet it is wrong in almost every detail. It's a short, readable book, but manages to convey an incredible amount of information about the real story of Lochner, its supporters, its Progressive critics, and the continuing influence of Lochner on modern constitutional law. It's too rich to try to sum up in a short review, so just read it!