Anton inspires confidence both that the Founding was guided by the resulting theory of justice, and that that theory should still guide us.
George Thomas, Keith Whittington, and Ted McAllister evaluate David Bernstein’s important new book Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform.
When the Legend becomes Fact
More than a hundred years after it was decided Lochner v. New York, the 1905 bakeshop case that struck down a New York maxim-hours law for bakers, continues to provoke. Jurists point to it as the exemplar of illegitimate judicial lawmaking, as does the occasional Senator at judicial confirmation hearings. Even constitutional scholars, who by now should know better, cannot seem to resist staid criticisms of the opinion that are, more often than not, wide of the mark. And this despite two decades of revisionist scholarship which has shown the so-called “Lochner Era” to have solid roots within the contours of American constitutionalism and to have been much more mild than its Progressive critics made it out to be. It is against the Progressive myth of Lochner, and its persistent pull, that David Bernstein’s Rehabilitating Lochner labors.
Bernstein is wonderfully successful in situating the logic of the Lochner opinion and the particulars of the case in historical perspective. Too often great cases in constitutional law are detached from context and the actual litigants involved are forgotten. And yet recovering specifics can have a way of shading our understanding. This is certainly the case with Lochner. All too frequently viewed through the lens of Justice Oliver Wendell Holmes’ famous dissenting opinion, Lochner has been characterized as embracing laissez-faire Social Darwinism and as generally placing the Supreme Court on the side of big corporations against struggling workers. From the scant records available, Bernstein offers us a sketch of Joseph Lochner that does not fit this take.
Lochner was an immigrant from Bavaria who worked for a number of years as a baker before opening a small family bakeshop in Utica, New York. Lochner was on friendly terms with his workers, whom he labored alongside, and on occasion allowed them to work extra hours in violation of New York’s maxim hours law. Small family bakeshops often kept odd hours, which allowed for much idle time, as bakers waited on the dough, or other elements of the production process: “A ten-hour law . . .would drive out of business many old-fashioned bakeries that depended on flexible labor schedules” (25). Thus larger bakeries—often supported by the baker’s union—stood to benefit from the maxim hours law insofar as it burdened their smaller competitors. All of this is to say that Lochner was the little guy.
And yet Progressives neglected these facts. Or perhaps more aptly, we might say that the Progressive understanding of democracy tended to be dismissive of individual rights and constitutional limits. Certainly the baker’s union that favored the maxim-hours law understood how such a law would harm small non-unionized bakeries that, as was the case with Lochner, were often run by or employed immigrants. As Herbert Croly insisted at the time, the “nonunion industrial laborer. . . should be rejected as emphatically if not as ruthlessly as the gardener rejects weeds in his garden for the benefit of fruit and flower-bearing plants” (52). In a similar vein, Bernstein argues: “leading Progressive economists supported minimum-wage legislation not despite but in part because they understood that it would lead to increased unemployment among women, members of minority groups, immigrants, the elderly, the disabled, and other ‘out’ groups that were less likely to be able to command the minimum wage.” (53).
This brings me to two points that I want to highlight regarding Rehabilitating Lochner. First, while it has been long noted that Progressives had statist tendencies that were dismissive of individual constitutional rights, Bernstein reveals a tension between the Progressive criticism of Lochner and later liberal defenses of individual rights of, say, the Warren Court variety. The latter’s liberal jurisprudence (insofar as it protected individuals rights) finds almost no grounding in Progressive thought, which is far better represented by Judge Learned Hand’s insistence on judicial deference to democratic majorities. This brings me to point two. Bernstein demonstrates how the putatively reactionary Lochner Court was often protective of women, African Americans, Catholics, and other minority groups. It may come as a surprise to modern sensibilities that it was justices of the Lochner variety who insisted that the Constitution “follows the flag” when it came to America’s newly acquired territories. Whether or not these jurists sympathized with these particular groups— and some jurists of a Lochnerian disposition certainly did—the Lochner Court was more inclined to protect their rights because it thought the Court had a robust role in policing constitutional limits.
Consider “protective” legislation for women (who were often drawn in comparison to children as needing the special protection of the state). In the early years of the twentieth century, protective laws— minimum wage and maxim hours’ laws for women but not for men, for example—were justified by the famous Brandeis Brief. The original brief in defense of maxim hours laws for women sought to demonstrate such key points as “women are physically weaker then men,” a woman’s ill health could damage her reproductive capacity and thereby harm society, and that excessive hours of labor for women were harmful to family life. All of this justified treating “women” as a different class of persons than “men.” Against such assertions, the Court struck down a minimum wage law for women. While the opinion was much criticized in Progressive circles, a number of women’s groups applauded the opinion for insisting on women’s equality. What is more, the author of the opinion, Justice George Sutherland, and in contrast to Justice Louis Brandeis, was a strong advocate of women’s suffrage and the Nineteenth Amendment, as well as an advisor to the National Women’s Party in drafting the Equal Rights Amendment. As Sutherland would argue, “the ability to make a fair bargain, as everyone knows, does not depend on sex” (71).
Turning to questions of race, Bernstein suggests that the most powerful arguments against racial segregation and other forms of racial discrimination were similarly rooted in Lochner style reasoning. This is certainly so of Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson, which rejected “class-based” legislation and insisted on the associational rights of blacks and whites against a Louisiana law that mandated racial segregation in rail cars. More interesting, because obscured by history, are cases such as Buchanan v. Warley, which took up a residential segregation law that prohibited blacks from buying homes in white neighborhoods, as well as prohibiting whites from buying in black neighborhoods. In a unanimous opinion, the Court insisted, “colored persons are citizens of the United States and have the right to purchase property and enjoy and use the same without laws discriminating against them solely on account of color.” The Court also insisted on the civil right of a “white man to dispose of his property if he saw fit to do so to a person of color and for a colored person to make such disposition to a white person” (81). Bernstein points out that Justice Holmes drafted a dissent, but did not deliver it. This is not surprising. Holmes dissented in several cases that protected the rights of African Americans, insisting that various forms of segregation—and even a law that kept blacks in a state of peonage—were well within the scope of the state’s police powers. Such opinions were consistent with Holmes’ much vaunted Lochner dissent. While a case such as Buchanan has often been treated as a “property case” and an example of laissez faire, Bernstein demonstrates that the Lochner Court never came close to embracing laissez faire and made no distinction between “economic” liberty and “civil” liberty.
Indeed, Bernstein shows powerfully that rights that would come to be written out of the constitutional tradition and dismissed as “economic rights” were in fact vital civil liberties—and often far more important to minority groups then other civil liberties. As the Court put it in Meyer v. Nebraska, which held a law that prohibited the teaching of a foreign language in elementary school unconstitutional, “liberty thus guaranteed . . . denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” The logic at the root of Meyer, so central to what would come to be dubbed the “right to privacy,” rested, in its essentials, on the logic of Lochner. It is only with great difficulty that we can preserve a case like Meyer and reject Lochner style reasoning, but such as been the incoherent state of our jurisprudence in the post New Deal world given the myth of Lochner. Precisely because both liberal and conservative jurists in the post New Deal constitutional order digested the Progressive myth of Lochner, the Court has often offered unpersuasive or tendentious reasons for defending constitutional rights.
So let us grant all of this. Does this mean that Lochner was correctly decided? And, even if we grant this, how does this inform our current understanding? Bernstein does not, in fact, defend Lochner as a particular decision, but seeks to restore a fair account of Lochner and its progeny. One of the interesting claims he makes along these lines is that Lochner’s defense of “liberty of contract” was a forerunner to the Court’s current “fundamental rights” jurisprudence. This is in contrast to revisionist scholarship that situates Lochner as prohibiting “class based” legislation. Following the logic of the latter, we would ask: why a maxim hours law for bakers? Was the trade of baking more harmful than other callings? Was it different, say, from being a lawyer? Unfolding this logic is somewhat different from an emphasis on the fundamental right of liberty of contract. The former understanding certainly fits with the current Court’s emphasis on protecting fundamental rights. Of course, the vexing question is how to identify what rights are “fundamental” and therefore entitled to judicial protection. I point readers interested in the intricacies of this constitutional debate to this essay. However we decide the question, Bernstein helpfully reminds us that the Court, despite some effort, has not avoided the kind of substantive judgments that were at the heart of Lochner.
Yet what is perhaps most striking about the shift away from including economic liberty within the contours of civil liberty was that it occurred with almost no debate. Here lies much of the promise of Bernstein’s rehabilitation of Lochner. Even from a liberal-progressive perspective, Bernstein illustrates that taking economic liberties seriously is worthy of serious consideration. If they will listen, Bernstein can speak to both the Tea Party and Occupy Wall Street. Against “too big to fail” and the potentially corrupting relationship between government and large industry, a re-examination of economic liberty from the perspective of small businesses, minorities, and those who are generally less powerful and influential should be particularly welcome.
 Meyer v. Nebraska, 262 U.S. 390, 399 (1923).