Kessler on the Early Years of First Amendment Lochnerism

Jeremy K. Kessler, Columbia Law School, has posted The Early Years of First Amendment Lochnerism, which is forthcoming in the Columbia Law Review:

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such “First Amendment Lochnerism” date back to the federal judiciary’s initial turn to robust protection of free exercise and free expression in the 1930s and 1940s.

Robert H. Jackson, J. (LC)

Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did so in a series of contentious cases involving the Jehovah’s Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith – the mass sale and distribution of religious literature. In dissent, Justice Robert Jackson warned that the new “liberal” majority’s expansive conception of First Amendment enforcement repeated the mistakes of the “liberty of contract” jurisprudence of the Lochner era, undermined democratic regulation of the economy, and imposed the beliefs of some on “the rights of others.”

Jackson’s warnings sound strikingly similar to contemporary critiques of First Amendment Lochnerism. Yet today’s critics treat recent case law as a novel, economically libertarian cooption of an otherwise progressive project: the judicial enforcement of civil liberties. In contrast, the Justices and scholars who objected to the 1940s peddling tax decisions perceived an inextricable relationship between judicial civil libertarianism and judicial interference with economic regulation. By recovering the origins and sketching the aftermath of the peddling tax debate, this Article argues that contemporary critics of First Amendment Lochnerism tend to overstate the phenomenon’s novelty and underestimate the difficulty of curing judicial civil libertarianism of its “Lochnerian” tendencies. This argument, in turn, counsels a reorientation of contemporary advocacy. Rather than defending an illusory tradition of economically neutral First Amendment enforcement, critics of today’s First Amendment Lochnerism might more accurately and persuasively position themselves as reformers. They could then set to work breaking with a legal tradition long insensitive to the deleterious effects of judicial civil libertarianism on political regulation of the economy.