Mary invited me to guest-blog in part because my book, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform, is being published this month. In fact, today is the official publication date.
While the title is (intentionally) ambiguous, the book takes no normative positions on constitutional law beyond a not-exactly-bold stance against an unlimited state police power. I made this decision in part because my own views on such things as the scope of the judiciary's role in interpreting the Constitution, originalism, constitutional construction, and so forth are rather ill-formed. But mostly, I wanted to write a serious work of history, and was afraid that if I didn't resolve to avoid normative conclusions I would inevitably be tempted to skew my historical narrative to fit my arguments.
Lochner v. New York, of course, is one of the most notorious Supreme Court cases of all-time, reviled by both left and right. My basic argument is that much of the calumny heaped on Lochner reflects the symbolic role it has come to play in constitutional debate, but has little to do with the actual history of the case itself, or with the broader "liberty of contract" line of cases of which it is the most prominent example.
More on how that symbolic role arose in a later post. For now, I thought I'd briefly recount some of the myths and facts about Lochner recounted in my book. The ideas reflected in this post aren’t original to me; the relevant parts of the book are really a synthesis and elaboration of previous revisionist scholarship. I'll talk about some of the more novel aspects of the book later.
Myth 1: Prevalent especially among conservative critics of Roe v. Wade, this myth states that the due process clause protects substantive rights originated in Dred Scott v. Sandford, the pro-slavery case decided in 1858. The point here is to discredit Lochner and its progeny by associating them with the defense of slavery. In fact, due process’s role in protecting substantive property rights was accepted before Scott in dozens of state cases that had nothing to do with slavery, and indeed by the Supreme Court itself five years before Scott. Moreover, belief in “substantive due process” was not limited to pro-slavery forces, and indeed was likely more prevalent among abolitionists. The Republican Party platforms, for example, of 1856 and 1860 argued that the Fifth Amendment’s Due Process Clause put substantive limits on federal endorsement of slavery.
Myth 2: Via Lochner and other liberty of contract cases, the Supreme Court tried to impose “laissez-faire” on the United States. While the Supreme Court did invalidate a few significant regulations as violations of liberty of contract, for the most part it upheld innovative regulations. To take one pertinent example, the Supreme Court heard a half-dozen or so challenges to state maximum hours laws. It upheld each of these laws, with only one exception--Lochner itself.
Myth 3: Lochner was the product of judicial formalism that ignored social science data and other evidence in favor of abstract notions of writes. In fact, Peckham’s opinion specifically stated that “in looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others.” These statistics were provided in Lochner’s brief.
Myth 4: Lochner and other cases protecting liberty of contract was motivated by the Justices’ “Social Darwinism.” There is really no evidence for this. As I explain in detail in the book, this myth seems to have arisen from a misreading of Justice Holmes’s remark in his dissent in Lochner that the “Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics,” combined with the post-New Deal temptation to associate liberty of contract with the horrors of Naziism. (It didn’t help that by the 1940s, very few intellectuals were familiar with the content of Social Statics, and only knew that Richard Hofstader had identified Spencer as a leading Social Darwinist.)
Myth 5: Lochner and other cases invalidating labor regulations illustrate the Supreme Court’s hostility to workers and beneficence toward large corporations. This simplistic morality tale is belied by the facts of Lochner itself. For complicated reasons explained in the book, the law was supported by the German-dominated bakers union, and also by the large corporate bakeries that employed union workers. Opposition to the law came from owners of small, nonunionized bakers, who were mostly Italian and Jewish immigrants, and who thought the law was designed to put them out of business.
