Monday, May 23, 2011

Myths about Early 20th Century Progressive Jurists

Earlier today, I focused on myths about Lochner and other liberty of contract cases. Now, I’m going to focus on myths about the views of the Progressive jurists who opposed the liberty of contract doctrine. The traditional narrative posits not only that the Justices who supported liberty of contract were evil reactionaries whose influence has been thankfully purged from modern constitutional law, but that their Progressive opponents were enlightened liberals, who bequeathed to us a shift in the constitutional landscape from a protection of contract and property rights to a primary focus on the protection of civil rights and civil liberties.

In fact, as a rule, Progressive opponents of liberty of contract evinced little interest in civil rights and civil liberties. Indeed, Progressives jurists typically did not distinguish among different categories of rights. They instead thought that the very notion of inherent individual rights against the state was a regressive notion with roots in reactionary natural rights ideology.

There’s a limit to how much detail I can go into in a blog post, but the Progressives’ general outlook is well-reflected in Learned Hand’s (in)famous lectures on the Bill of Rights at Harvard Law School in 1958. At eighty-six years of age, Hand was and remained an unreconstructed Progressive, immune from the New Deal and Post-New Deal liberal trends in constitutional law.

At Harvard, Hand denounced the Supreme Court’s recent liberal civil rights and civil liberties jurisprudence. Hand specifically criticized the Court’s protection of freedom of expression via incorporation of the First Amendment into the Fourteenth Amendment’s Due Process Clause. Hand alleged that there is “no constitutional basis” for the Court to exercise any more supervision over state and local regulation of freedom of expression than it did over liberty of contract. Hand went on to decry the notion that the Bill of Rights can or should be applied to the states.

Hand then criticized the Court’s emerging civil rights jurisprudence, as reflected in Brown v. Board of Education. He analogized Brown’s invalidation of public school segregation to the “old [liberty of contract] doctrine” through which, Hand said, the Court had protected economic interests. Hand concluded by accusing the Court of acting as a “third legislative chamber” and exercising such power only through a continuing “coup de main.”

One could cite other examples. By now, Holmes’s reputation as a liberal civil libertarian is no more. Brandeis still gets credit for a certain amount of liberal farsightedness, but he also showed little interest in African American rights, was at best a tepid supporter of women’s suffrage, supported repeal of the entire Fourteenth Amendment, and, despite his famous opinion in Olmstead v. United States, rarely (unlike several of his "conservative" counterparts) voted against the government in Fourth Amendment cases.

More generally, my book argues that Lochnerian protection of liberty of contract was invoked to justify some of the most significant early decisions expanding constitutional protections for the rights of African Americans (Buchanan v. Warley) and women (Adkins v. Children’s Hospital), and for civil liberties (Meyer v. Nebraska, Pierce v. Society of Sisters), often over the strong opposition of Justice Holmes and his Progressive allies--for example, almost every Progressive commentator opposed Buchanan's rejection of de jure housing segregation. Modern “liberal” constitutional jurisprudence, rather than being directly descended solely from the ideas of early twentieth century Progressive jurists, is a synthesis of Progressive fondness for government economic regulation, and the classical liberal (“conservative”) support for individual rights and skepticism of government power reflected in the liberty of contract cases.

Famous Carolene Products footnote 4, for example, is best seen not as a novel innovation announcing the protection of civil liberties, but rather as a reflection of New Deal liberal determination to retain and reinterpret certain "Lochner era" Fourteenth Amendment precedents in the service of a modern liberal conception of individual and civil rights. At the same time, it was a repudiation of the Old Progressive hostility to judicial protection of individual rights in general, and cases like Meyer and Pierce in particular.


Shag from Brookline said...

Reading between the lines and in anticipation of subsequent posts, it may be claimed that the "Lochnerian protection of liberty" contributed to the Warren Court's line of decisions on individual rights that conservatives derided. Did the "Old Conservatives" lead to the "New Progressives" and the "Old Progressives" to the "New Conservatives"?

David Bernstein said...

(1) Did the "Old Conservatives" lead to the "New Progressives" and the (2) "Old Progressives" to the "New Conservatives"?

(1) In part.
(2) Yes, largely. The constitutional ideology of, say, Robert Bork, is a direct descendant of the views of Old Progressives like Hugo Black and Learned Hand.

David Bernstein said...

(At least with regard to the Fourteenth Amendment).

Shag from Brookline said...

In 1958 when Hand (an Old Progressive?) was critical of the Court's decision in Brown v. Board of Education, what were the views of conservatives and/or originalists on Brown?

David Bernstein said...

There weren't any old-fashioned conservatives left. The new generation of conservatives adopted Progressive critiques, and young William Rehnquist wrote a memo suggested that Plessy be reaffirmed because otherwise the Court would be mimicking Lochner!

Shag from Brookline said...

May I assume that in this:

"The new generation of conservatives adopted Progressive critiques, ...."

"Old" should precede "Progressive"?

Efforts to rehabilitate young William Rehnquist's memo have not been quite successful in attributing it to the views of Justice Jackson rather than his own views. The new generation of conservatives adopted their own views, challenging the Warren Court and the Civil Rights movement well beyond the 1960s. It is only in more recent years that conservatives - and originalists - accepted - or dare not challenge - Brown.

Anonymous said...

Are there many historians who think that Progressives were liberals who stood for individual rights? Who are you citing for that myth? Historians of progressivism have not overlooked in the last generation the degree to which Progressives were racist and placed the social above the individual. See McGerr's synthesis for example.

David Bernstein said...

"Are there many historians who think that Progressives were liberals who stood for individual rights?"

Brandeis certainly still has that reputation, and he is the great exemplar of Progressive constitutionalism. Mel Urofsky's otherwise great book on Brandeis continues in that vein. Melvin I. Urofsky, Louis D. Brandeis: A Life 619, 631-32 (2009). Of course Brandeis was more liberal than most Progressive intellectuals, but still fundamentally not one.

With regard more generally to legal and especially constitutional history, I'd say we have the same issue as with the claim that the "conservatives" on the USSC were "social Darwinists." Specialists know it's not true, but the conventional wisdom still holds. I'd say the breakdown of the social Darwinism meme is 10-20 years ahead of the breakdown story associated legal Progressives of the early 20th century with modern liberals. And the latter will be harder to ultimately undo, because quite a bit of modern constitutional jurisprudence depends on the relevant myth.

Josiah Neeley said...

Prof. Bernstein,

I am intrigued that you place Hugo Black along with Hand and Bork in terms of constitutional interpretation. Wasn't Black a big believer in the incorporation of the Bill of Rights against the states, and of a broad interpretation of the civil liberties guarantees?

David Bernstein said...

Black and Hand certainly disagreed on incorporation, but Black's "Old Progressive" bona fides were reflected in his hostility to the notion that the Due Process Clause might protect ANY unenumerated right.