• David E. Bernstein, Rehabilitating Lochner, Chicago: University of Chicago Press, 2011, 185 pages. $45.
For non-lawyers, the “Lochner” in this book’s title refers to the Supreme Court’s 1905 decision in Lochner v. New York, which author David Bernstein (of George Mason University Law School) argues has been misrepresented terribly by “progressive” intellectuals.
Among lawyers, the standard view of Lochner is that it was a perverse triumph of ideological judicial activism over a statute meant to protect workers. Bernstein shows that view to be mistaken, as his subtitle — “defending individual rights against progressive reform” — indicates. Instead of being demonized, the court’s decision should be extolled for its shielding of individual liberty against authoritarianism.
The case arose after the New York legislature enacted a law that placed a limit on the number of hours an employee in the baking industry could work. Although the law was proclaimed to be a health and safety measure, Bernstein’s careful history makes plain that it was actually special interest legislation intended to damage older, usually nonunion bakeries where the bakers often slept while bread was baking — hence their long days. Enforcement of the law could reduce competition for newer, often unionized bakeries where bakers worked shorter shifts.
Justice Rufus Peckham’s majority opinion was based on an understanding of the 14th Amendment that protected the citizen’s fundamental liberty to contract his labor as he thought best. That decision infuriated “progressive” intellectuals who thought that courts should never interfere with legislation intended to (as they saw matters) improve society.
They, including Justice Oliver Wendell Holmes, who wrote a famous, often-quoted dissent, wanted to destroy the individualist, libertarian foundation of America and replace it with their vision of an expertly planned and controlled society. Thus, whether that particular statute was wise or not was beside the point: Courts should never second-guess elected representatives.
Peckham’s decision was (and still is) denounced in shrill language claiming that it was motivated by hostility toward the working man and that the court merely was siding with “business interests.” All of that rhetoric was wrong, but it created the erroneous idea that any time a court overturned supposedly “protective” legislation, that was the equivalent of a gift to big business.
The book makes it clear that those “business interests” often sought interventionist legislation and the “little guy” who was supposed to benefit from such legislative “protection” actually was harmed by it.
Bernstein carefully documents that subsequent decisions in the Lochner line were consistent in defending individuals against oppressive legislation whether or not business was involved. For example, Lochner-inspired reasoning was behind decisions striking down state-mandated residential segregation and state attempts at forbidding parents from educating their children anywhere but in government schools.
Bernstein’s research shows that the “progressive” jurists often supported appallingly authoritarian measures that badly harmed individual workers and consumers, because they felt constrained to uphold them for the “greater good” of moving toward a properly regulated society.
The ultimate case in that regard is Buck v. Bell, in which a court dominated by progressives (in 1927) upheld state compulsory sterilization laws. In his majority opinion, Holmes gloried in explaining the case for eugenics. Who did more damage — Lochner libertarians who said that people had to be left free to make their own contracts, or Holmesian progressives who saw no reason to prevent government from forcibly sterilizing individuals for society’s imagined good?
When “liberal” justices in the 1950s, ‘60s, and ‘70s began to take note of the many state laws that infringed upon civil rights, they went into severe contortions to avoid being criticized for reviving the dreaded jurisprudence of Lochner in cases where they struck down statutes that were not to their liking. They included statutes allowing school segregation and laws against selling contraceptives.
Bernstein takes some glee in poking holes in their arguments. He argues that while the Lochner justices were principled, consistent defenders of liberty against state power, the Warren court was inconsistent, relying on tortured constitutional theorizing to pick certain rights they liked for protection (calling them “fundamental”) while allowing government to trample over other rights they regarded as deserving no constitutional protection, particularly property rights and economic liberty.
Bernstein’s book is not merely a revisiting of an old case, of interest only to a few lawyers. Lochner has direct bearing on crucial contemporary issues, especially the monstrous pile of legislation (and still greater pile of regulations) known as ObamaCare.
If the court were to examine ObamaCare through the philosophy that prevailed in Lochner, the law would have to be struck down, for it deprives individuals of the liberty of choice at many turns. On the other hand, if the court’s majority continues with the “government knows best and must be deferred to” philosophy of the Lochner dissent (and innumerable other cases), then the law will be upheld.
Rehabilitating Lochner is a sharp and iconoclastic work of scholarship, one that challenges the deepest beliefs of those who defend almost omnipotent government.