32 of 35 people found the following review helpful
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.
21 of 22 people found the following review helpful
on June 8, 2011
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.
5 of 5 people found the following review helpful
on November 19, 2011
If you attended law school in the past couple of decades, invariably you heard Lochner castigated as a Supreme Court decision second only to Dred Scott, and maybe Plessy v. Ferguson, in its wickedness. As Professor Bernstein ably shows in his presentation of legal historians' new, more accurate understanding of the history of economic rights, this is less rooted in fact than in modern political battles.
In Lochner v. New York, the Supreme Court famously invalidated a state law that limited the number of hours a day a baker could work. Perhaps unfairly, it is seen as the flagship case for the now much-reviled idea there is a liberty of contract right implicit in the Due Process clause of the 14th Amendment. However, as Prof. Bernstein shows, Lochner was neither extraordinary nor unprecedented. He also paints a very different picture of the context surrounding the case than that typically given today. It was not a showdown between big business and workers. The large bakeries by and large supported the law because it hurt their small competitors more than them (the law was also heavily union-supported). I also found it interesting that this was an early example of a "test" case--small bakery owner Lochner, seen as a sympathetic plaintiff, coordinated his indictment for violating the law with an employee.
Prof. Bernstein organizes his book into eight plainly named chapters: The Rise of Liberty of Contract, The Lochner Case, Progressive Sociological Jurisprudence, Sex Discrimination and Liberty of Contract, Liberty of Contract and Segregation Laws, The Decline of Liberty of Contract, and the Rise of "Civil Liberties", Lochner in Modern Times, and Conclusion.
Prof. Bernstein buttresses his direct discussion of Lochner in the early chapters with ample context. The concept of economic rights was not an anomalous legal doctrine. It was rooted in orginalist interpretation of the Constitution (albeit a proto-originalism). Statutes were challenged under two different legal theories, both rooted in the 14th Amendment. One was under a liberty of contract theory based out of the Due Process clause (an early version of substantive due process). The other was under a theory of class legislation based out of the Equal Protection Clause. The liberty of contract theory proved to be more fruitful in attacking statutes. Unlike the current attacks on the healthcare bill, which all argue it does not fall under any of Congress's enumerated powers, the theories Prof. Bernstein covers applied to state as well as federal statutes.
Prof. Bernstein takes pains to show the modern left is not the pure philosophical successor to 19th century Progressives. Progressives were generally, with a significant exception for Free Speech, hostile to individual rights across the board. Notably, this included equal protection for African-Americans. Prof. Bernstein makes a strong case that Buchanan v. Warley, by preventing the elimination of the property rights of African-Americans and facilitating African-American migration from oppressive southern states to the northeast and Midwest, dramatically limited the pernicious effects of Jim Crow segregation. Modern constitutional scholars are not so kind. Professor Akil Reed Amar only finds room to devote a single paragraph to Buchanan in his 1,856 page tome of a casebook. Similarly, it was Progressive hero Oliver Wendell Holmes who wrote the opinion in Buck v. Bell upholding a eugenics statute. Prof. Amar doesn't think much of the import of Buck either--it is relegated to a footnote in his casebook.
Lochner and its ilk were reversed and distinguished into nothingness during the New Deal era, but it was only later that they gained their current infamy. All of the justices in the Griswold case establishing a right to privacy relied on the Meyer and Pierce cases, both of which used a "Lochner-like understanding of the Due Process clause." The Warren Court was frequently accused of Lochner-ian judicial activism. In Roe v. Wade, the court firmly ignored both 9th Amendment and "penumbras and emanations" arguments, rooting the right to privacy in the 14th Amendment. With the rebirth of substantive due process as a protector of non-economic rights, the Lochner line of cases suddenly became very dangerous to legal scholars and jurists very supportive of the right to privacy but very hostile to economic rights. Laurence Tribe's incredibly influential treatise led the charge in the re-defining the Lochner cases.
Prof. Bernstein writes with clear prose and provides plentiful historical background, context, and anecdotes. I also must say that Rehabilitating Lochner has the best cover I have ever seen on an academic book.
Prof. Bernstein is a legal historian and a consequentialist, so he does not spend much time examining the philosophical implications of the Lochner-era, its denouement, and its later revision. But that is all to the better, as it allows the reader to draw his or her own conclusions. I think the twin conclusions to be drawn are that economic rights played a positive role in late 19th century jurisprudence (and law students should be taught as much) and that there must be some place for economic rights in modern substantive due process. I think this book must also be extremely important to any classic liberal legal scholar.
6 of 8 people found the following review helpful
on September 15, 2011
Bernstein is the nation's leading authority on the Lochner case, and his concise book is the first serious effort to put the case in its legal and historical context, and understand it rather than to caricature it for partisan reasons. The only other single volume about Lochner that I'm aware of is Paul Kens' 1998 treatment, which as I explain in my book, The Right To Earn A Living, is profoundly flawed. Nor does Bernstein try, as I and others do, to promote what he calls a "full throated defense of libertarian constitutional jurisprudence." Instead, Rehabilitating Lochner is a fair and carefully researched description of the history of the case, its consequences, and mostly of the bizarre relationship that Progressives, both past and present, have to the case. It might initially seem odd that Bernstein devotes only about two pages to the action decision itself, but that's because the case is much more important as a symbol than for its actual legal doctrine, which was basically a straightforward application of longstanding precedent protecting individual rights against arbitrary government action. But because Lochner was decided in 1905, when the Progressive era was in full swing, it became the target of attacks by partisans who sought greater government control over individual decisions. Thus it became "the key emblematic illustration" used by intellectuals who came from different philosophical backgrounds. "The long-standing myth of a wildly activist, reactionary Supreme Court imposing a grossly unpopular laissez-faire ideology on the American people on behalf of large corporate interests--with little concern for precedent, constitutional text, or individual or minority rights--is far removed from historical reality." This myth was invented to justify a political campaign for greater government control over economic decisions. But at the same time, today's liberals make arguments that are found almost word-for-word in the Lochner decision itself when they demand greater protection for personal liberty like privacy or speech.
Bernstein's book is an important contribution to understanding not only the Lochner decision itself, but the political and jurisprudential storms that have surrounded it for a century. I recommend it highly. And, while we're at it, I recommend his other books, too: Only One Place of Redress, a particularly outstanding work on the importance of economic liberty to racial minorities, and You Can't Say That! about the violation of free speech rights and other civil liberties posed by anti-discrimination laws.
1 of 1 people found the following review helpful
on December 23, 2011
The author, a law professor, contends that there is a need to challenge the conventional wisdom about the origin, meaning and significance of the Supreme Court's liberty of contract cases and the opposition to those cases by Progressive and New Deal reformers. The author concludes that: (1) the Supreme Court's liberty of contract cases have been misunderstood and unfairly maligned; (2) the faulty characterization of the liberty of contract cases has distorted legal scholarship about American constitutional law history and judicial reasoning about various Supreme Court precedents; and (3) the conventional wisdom about the liberty of contract cases and opposition to them has obscured the existence of important tensions between individual rights and Progressive and New Deal reforms.
The author explores the political and social contexts in which the liberty of contract cases arose, were applied, were challenged, and later were superseded by contrary legal precedents. One fascinating aspect of the book is the author's use of material from various sources (including judicial opinions, legal briefs, books, scholarly articles, and newspaper articles and editorials) to show that the legal and political battle lines were not as clear cut as portrayed by the conventional wisdom about the liberty of contract cases. The author does a good job of identifying significant differences of opinion among supporters of the liberty of contract cases, as well as among supporters of Progressive and New Deal reforms. Finally, the author makes a strong case for the proposition that the legal and political battles for and against the liberty of contract cases highlight the existence of important tensions between (1) individual rights, and (2) Progressive and New Deal reforms.
This is a scholarly book that, although generally well-written, requires the reader to give careful thought and attention to the author's contentions, arguments, and conclusions. Some knowledge of American political history, American legal history, and legal reasoning would be helpful in following the author's line of thought and better understanding the book.
1 of 1 people found the following review helpful
on April 14, 2012
In this concise, stimulating, carefully-researched and readible book, Bernstein puts Lochner into its proper historical context. Along the way, he overturns such often-repeated textbook myths as the contention that "social darwinist" ideas served as the basis for the decision. Instead, as Bernstein shows, the Court relied on much older traditions such as "liberty of contract." Ironically, at least for those who accept the standard view, it was the the chief critic of Lochner, Oliver Wendell Holmes, who was the most likely of the justices to rely on social darwinist jargon.
The book is especially useful in laying out how Lochner served as a critical precedent in several landmark cases upholding rights for blacks and women. Most notably, the Court relied on Lochner to justify its rulings in Buchanan v. Warley, which struck down race-based zoning and Adkins v. Children's Hospital, which invalidated a discriminatory minimum wage applying only to women.
While defenders of Lochner will find much to like in this book, so too will critics of the decision who will be impressed by Bernstein's fairness, research, and high level of analysis. Bernstein always makes sure to connect Lochner to broader historical trends, not only in legal history but also fields such as civil rights history.
American history professors should strongly consider assigning this book in graduate as well as upper-division undergraduate courses. It will be bound to generate lively and informed discussion and will introduce students to key historical trends and themes.
on September 8, 2012
On April 3, 2012, referring the upcoming Supreme Court opinion on Obamacare, President Obama said, "We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce -- a law like that has not been overturned at least since Lochner. Right? So we'regoing back to the '30s, pre New Deal."
Obama, a former constitutional law professor, singled out the "Lochner" case from 1905. Why Lochner? Lochner was a 1905 case in which the Supreme Court held that a law limiting bakers to a ten hour day was unconstitutional under the Fourteenth Amendment. That doesn't seem to have much to do with the litigation over Obamacare, which was based on other constitutional provisions.
Rehabilitating Lochner was published in 2011, but it's essential reading if you want to understand why this case that very few non-lawyer Americans have heard of looms so large in constitutional
debate. IBernstein explains that there are two Lochners: (1) The real Lochner, a controversial 5-4 case even in its own day, that pit the interests of social reformers and unionized bakery workers against owners of small immigrant-owned bakeries and their sympathizers who wanted to retain some traditional constitutional restraints on the emerging regulatory state. This Lochner wasn't especially important in the scheme of things; it was rarely relied upon by later Supreme Court decisions, and the Court didn't do much to stop state and federal government from increasing in size and scope. Lochner was finally done away with only thirty or so years after it was decided.
(2) The symbolic Lochner, a case in which a reactionary and activist Supreme Court trampled on the rights of the poor and needy on behalf of large corporations. In the symbolic story, Lochner came to stand for any pre-New Deal decision putting limits on economic regulatory power, which in turn was seen as the Court sticking its nose in economic policy in which it both favored the powerful and had no business interfering with to begin with. From this symbolic story came Obama's allusion to Lochner.
Bernstein argues that the real (as opposed to symbolic) significance of Lochner is that it marked the Supreme Court's initial and therefore (given our system of relying on precedent) most important foray into protecting individual rights under the Fourteenth Amendment. While the right to "liberty of contract" identified in Lochner was dispensed with during the New Deal, the pre-New Deal Court, in less well-known cases (or cases that have been intentionally misrepresented), protected a wide range of civil liberties, as well as the rights of woman and minorities. When liberal courts began to revive Fourteenth Amendment protections for individual and minority rights, they relied on cases that had in turn relied on Lochner, all the while denying
they were doing so.
Overall, a fantastic work of constitutional history with many highly interesting revisionist details. Don't expect a polemic, the author doesn't take any position on current constitutional controversies, beyond a broad argument that the Fourteenth Amendment shouldn't be rendered a nullity by concerns over judicial activism.
2 of 3 people found the following review helpful
on June 26, 2013
An original thinker's thoughts are always worth reviewing especially in a society deformed by ideologies like the "progressive" movement. Mr. Bernstein has found a place to stand and a suitable lever with which to pry at the encrustations of this foreign ideology. Taking a fresh look at our legal history he provides plenty of ammunition to unlearn what we had been thinking was knowledge but was only indoctrination and the plodding habits of unlearned men plodding along in a stare decisis manner. The habit of close reading has all but vanished-reading itself was almost destroyed by the progressives but close reading in particular is the enemy of bad thought.
I will have to let this book rest awhile-maybe six months should pass before I read it again at which time I might be more equal to the task of taking in what is to me a new revelation. Meanwhile, it will be fun to mock those whose understanding of Lochner is now much less than mine.