Rehabilitating Lochner: Defending Individual Rights against Progressive Reform Reprint Edition

With a new supreme court justice being submitted for Senate approval, this book gives some excellent commentary on the tendency of judges to "dispense with justice" rather than to interpret the application of the Constitution. In Justice Holmes famous dissent, he asserted that the Constitution does not reflect foundational principles of a commitment to protecting individual liberty. Instead, he claims that the Constitution is empty of any underlying view on the relationship of the individual to the state, and the courts need to "step aside" and allow legislators to decide the fate of individuals (such as Joseph Lochner). Unfortunately, this "hollow constitution" viewpoint was adopted by "progressive" judges (with the progressive era beginning in the 1880s) -- the concept is that the Constitution ONLY meant what the judges (on the Supreme Court) said it meant -- the words written by the founders and accepted by the several states -- were meaningless. This book reviews numerous cases over a wide span of time showing how the court's decisions diverged from the written Constitution time after time. Often decisions reflected "societal" leanings, rather than the stated principles (e.g. "Jim Crow" laws were allowed, including Plessy v. Ferguson, that created segregated schools, yet denied the validity of racial segregation in deed restrictions (i.e. making property available to only one race through deed covenant).). When the justices move away from the actual meaning of the words of the Constitution, it leads to "socially approved" rulings, but rulings that do not reflect the true justice ensured by our Constitution. Over the years, the "liberal" or "progressive" viewpoint has often resorted to judicial rulings, when our society and culture would be better served by simply promoting a policy and attempting to sway public opinion to support legislation implementing such policies (including, if necessary, making an amendment to the Constitution). A more current example, instead of lying about "common sense gun regulation" when the underlying goal is to remove guns from our society, why not simply propose a constitutional amendment to remove (or significantly modify) the 2nd Amendment from the Constitution? "The left" prefers to seek a judicial "solution" because it requires less effort and eliminates the potential of having to compromise with the "deplorables" who hold differing views. However, it is likely to be more healthy for our society if views are aired in public and appropriate legislation is debated and modified to reach a wide public consensus.

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.

Great text! I read this for one of my courses, and I was initially skeptical about the Lochner decision. This book gives a great perspective to why Lochner was a historical case. Wonderful read.

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.