Originalism was the way Constitutional law was done until the progressive era came up with the idea of the living constitution.
I recently taught an undergraduate class on the history of civil liberties in the United States. After a class session on the U.S. Supreme Court case of Lochner v. New York (1905), a student came up to me and asked when we were going to talk about substantive due process. I should have expected the question, but I had allowed myself to forget the continuing popular resonance of the phrase. The query forced me to think a bit more about how I should teach constitutional history.
The turn-of-the-century case of the bakers and New York’s maximum working-hours law is, of course, the poster child of substantive due process, the idea that the due process clause of the Fourteenth Amendment imposes substantive limitations on the legislature. Lochner is now firmly entrenched in what law professors Jack Balkin and Sandy Levinson have called the “anti-canon,” cases that are held up as exemplars of when the Supreme Court got the legal answer dramatically wrong and as object lessons of what judges should not do in the future. Prior to the New Deal, the phrase “substantive due process” was practically unknown, but it soon became familiar both in legal and popular circles, primarily as a term of opprobrium. Progressive scholars such as Princeton political scientist Edward Corwin worked hard to identify the “substantive aspect” of due process doctrine as a recent and misguided judicial innovation, foisted onto the constitutional corpus by a group of conservative policy-oriented judicial activists concerned with defending corporate interests. Post-New Deal scholars from John Hart Ely to Robert Bork thought it was self-evident that talk of “substantive due process” was as incoherent as talk of “green pastel redness.”
For some of those in the post-New Deal generation, this inherited hostility to substantive due process was reinforced by the Court’s sexual liberty decisions of the late 1960s and early 1970s. Bork and others were fond of arguing that one could draw a straight line between Lochner and Roe v. Wade (1973), and if the late twentieth century legal consensus rejected the former then it was inconsistent not to reject the latter. Liberals were put on the defensive in having to explain why Roe was not like Lochner and did not commit the unpardonable sin of engaging in substantive due process. All sides agreed that Lochner and the doctrine of substantive due process were mistakes not to be repeated.
But things have changed in the past twenty years or so, and that was why my student’s question was unexpected. Scholars now recognize that the phrase “substantive due process” was anachronistic and was popularized precisely in order to provoke the kind of reaction that John Hart Ely evidenced. The catchy label was supposed to reduce a complex body of law to an oxymoron. But no one thought, let alone talked, that way prior to the Progressive critique. Substance and procedure in the protection of individual rights were understood to be intertwined. If legislatures could take away all of your normal legal defenses (by, for example, simply asserting that a class of activities constituted a public harm), then the ritual of a fair trial would mean little. Could individuals go to court and argue, quite literally, that they had done nothing wrong, that their actions were not threats to the public welfare that could justify government regulation? Or did legislatures have a free hand to remove those issues from judicial discretion and make determinations on whether previously innocent activities were now to be prohibited?
Courts had been grappling with those issues from the early days of the republic. By the time we reached Lochner in my class, students had already seen a dozen cases considering whether legislatures had exceeded the scope of their authority to make law for the common good. I had not used the phrase substantive due process, but as the old dish soap commercial would say, the students were soaking in it. From that perspective, Lochner looked like a routine case, not an exception.
What was unusual about Lochner was that the judges actually struck down the New York statute in the baker’s case. By far the more common result of such judicial scrutiny was to uphold the law as a valid exercise of legislative discretion. In Lochner itself, the Court did not even bother to hear arguments over whether New York could impose a host of detailed workplace regulations on bakeries designed to make them more sanitary. The difficult question was whether limiting how many hours bakers could work served the same purpose as specifying the relationship between overhead pipes and the area for food preparation. Only Justice Oliver Wendell Holmes thought that the Court had no business evaluating such legislative decisions. For the rest of the Court, the questions to be asked in Lochner were the familiar ones of whether the regulation could be grounded in a reasonable effort to advance the common good, or whether politicians were abusing the public trust simply to enrich private interests.
David Bernstein’s Rehabilitating Lochner is a fine contribution to the ongoing revisionist literature on the Lochner era of constitutional jurisprudence. Scholars such as Michael Les Benedict, Charles McCurdy, Howard Gillman, and Owen Fiss have done a great deal to revise our understanding of the Lochner decision and the Court that rendered it. As that interdisciplinary body of literature has emphasized, Lochner was not a radical departure from the past perpetuated by judicial allies of the wealthy. The jurisprudence that informed the justices on the Court in 1905 had been elaborated by judges, lawyers, and politicians since the early days of the republic and had been applied in a wide variety of circumstances. Far from attempting to read Herbert Spencer’s Social Statics into the law, as Justice Holmes charged, the Lochner Court was attempting to apply well-worn principles of American political and constitutional thought to the new circumstances of industrial labor conflict and competition. If anything, Holmes was the innovator, with his strongly worded dissent disclaiming any interest in how legislative majorities used their power. But Holmes was tapping into an emerging current of thought, and his view of what courts should do in the future and what was wrong with what judges had been doing in the past was congenial to Progressives.
Much of that revisionist literature has focused on recovering the concept of “class legislation.” James Madison railed against “factions” and the threat of legislation that sought to advance “partial” interests within the community rather than advance the general good. The Jacksonians had converted this concern into the language of “class legislation,” or statutes that enriched a portion of the community at the expense of the whole and did not serve the public good. The implicit limit on legislative power was that it could only properly be used to serve the general welfare, not to benefit “private” interests at the expense of the general public. Statutes that simply exploited government power to single out some groups of individuals for harm without an adequate public justification were an abuse of the legislative process and a violation of the rule of law. The concept of “class” or “partial” legislation provided a framework for providing judicial review of extreme cases of such abuses. Although the concept was eventually applied in the context of labor disputes over the terms of employment, the idea of a forbidden “class” was not understood in a Marxist sense of economic groups but could be applied to any set of individuals who had been arbitrarily singled out for unfair treatment by the state. As the Michigan jurist Thomas Cooley summarized, “distinctions in these respects should be based on some reason which renders them important.” If the government is going to restrict the rights of some but not others, it better have a good reason. If bakers are going to be told how many hours that they are allowed to work, then there will need to be a good reason to distinguish bakers from any other trade or profession that is not subject to those same limitations. Among the nice contributions of Bernstein’s book is to show how the plaintiffs in Lochner brought to be bear empirical evidence in their briefs to demonstrate that baking was not a particularly dangerous profession and that the New York legislature had little basis for singling out the working hours of bakers as a public health threat. (Tenement bakeries owned and operated by immigrants were an economic threat to the unionized bakeries that lobbied for the statute.) Along with recent work by Ken Kersch and Brian Tamanaha, Bernstein calls into question hoary myths about the arid formalism of the conservative Court and the pragmatic empiricism of the progressive reformers.
Rehabilitating Lochner puts less focus on class legislation than does the recent revisionist literature and instead takes on the traditional heart of the Progressive critique of Lochner, the idea of a liberty of contract. This is a potentially more provocative line of attack. The idea of class legislation recovered the intellectual and legal context of Lochner and helped situate it as a much more routine case than the post-New Deal narrative would have it. But, as Howard Gillman observed, the constitutional order that gave rise to Lochner “collapsed” with the New Deal. The modern American state is premised on generating “class legislation,” in the nineteenth century understanding of the term. Complaints about special interests aside, we no longer regard the use of the legislative power to make largely arbitrary distinctions and to benefit some at the expense of others as illegitimate. Courts were simply urged to accept whatever rationale the legislatures offered for the actions that they took, and eventually the judges did and the concept of prohibited class legislation faded into obscurity.
Disabling the idea of liberty of contract, however, was a primary target for Progressive lawyers such as Roscoe Pound. As Bernstein emphasizes, Progressive reformers at the turn of the twentieth century were often hostile to rights claims generally and put their faith in legislative discretion. Conservatives at the turn of the century were the primary defenders of the idea of individual rights and the need to judicially protect minorities from untrammeled majority rule. The specific idea of liberty of contract was part of a broader framework of individual right that conservative jurists were developing in the late nineteenth and early twentieth centuries. These rights claims could be deployed to question not only how legislatures distinguished between different groups of individuals affected by their laws but also how legislatures justified imposing burdens on individuals at all.
New Deal liberals ultimately rejected some key components of Progressive thinking. The idea of rights continues to have resonance after the New Deal. We simply shed the idea that property rights, including the right to pursue a trade or make a voluntary contract, were among those strongly protected rights. New Dealers built on the conservative idea that individuals had constitutional rights that should be judicially protected, but they disagreed with conservatives about the specific content of those rights. By highlighting the extent to which the Lochner majority built on general arguments about individual rights, Bernstein seeks to find the common ground between the New Deal liberals and the constitutional world that they created and the Lochner conservatives who came before them. In doing so, he also sets up the possibility that a revitalized liberty of contract could be reintegrated into the modern catalog of rights claims. If Justice Anthony Kennedy is willing to draw on “substantive due process” arguments to find a broad right for adults to engage in consensual sexual activity, then perhaps a justice would be willing to draw on similar arguments to find a right to practice a lawful vocation. Holmes, Bernstein suggests, should be regarded as the outlier. By contrast, Justices George Sutherland and William Brennan were engaged in a family squabble. How easy might it be for the advocates of rights to find common cause?
One of the complications of any such effort to rehabilitate Lochner along these lines is that the modern framework for evaluating rights claims have largely flipped the mode of analysis adopted by nineteenth century courts. Courts at the turn of the century put relatively little emphasis on identifying a particular right that needed to be defended, whether a liberty of contract or something else. So long as an individual could identify a genuine liberty interest, a vested legal right, then legislation could come under scrutiny. The emphasis was on the justification for the restriction on liberty. To this extent, the judicial framework for thinking about class legislation and thinking about liberty of contract was of a piece. In either case, the key inquiry was determining whether the legislature could justify what it had done and the burdens that it had imposed on individuals. In the post-New Deal context, finding a legitimate rights claim becomes crucial for launching judicial review, and post-New Deal jurisprudence is centrally concerned with determining which rights claims are worthy of judicial attention. The Court now demands that the law encroach on a “preferred freedom” in order to get the kind of heightened scrutiny that forces the legislature to offer a serious justification for its actions. The crucial move in the 1938 Carolene Products case was to announce that two-tier system of judicial review and that property rights broadly speaking did not have the status of preferred freedoms.
Bernstein argues that the underlying structure of Carolene Products is friendly to the liberty of contract, and indeed exploits many of the arguments that liberty of contract advocates had once made against Progressives. It would, he implies, be a small matter to elevate property rights to the list of favored set of rights. He probably overreaches here. He emphasizes the hostility of Progressives like Louis Brandeis to nearly all rights claims in order to make common cause between modern liberals and old conservatives, but he downplays the hostility of New Deal liberals to property rights specifically. He spends a great deal of time on the statism of Progressives like Roscoe Pound and Oliver Wendell Holmes, but little time on the antipathy to property rights held by New Deal liberals like Harlan Fiske Stone and Robert H. Jackson or the sources of their specific ideas about constitutional rights. Carolene Products rejected both Louis Brandeis and Rufus Peckham. Adding property to the list of preferred freedoms would overthrow, not amend, Carolene Products. Bernstein probably understates what it would take to fully rehabilitate Lochner in the modern era. But he is quite right to observe that the modern Court has not found it easy to avoid many of the same puzzles that deviled the Lochner Court, and as he suggests we are unlikely to make those difficulties go away simply by admonishing the justices to avoid “Lochnerizing.” Shedding liberty of contract may have solved one set of political and jurisprudential problems for the Court, but it hardly resolved all the tensions inherent in the modern practice of judicial review.