By David E. Bernstein, University of Chicago Press, Chicago, Ill., and London, 194 pages, $45
The book “Rehabilitating Lochner” is about a U.S. Supreme Court decision that generations of lawyers and law students have been taught to scorn as the imposition of obsolete economic dogma disguised as constitutional principle. Commentators have gone so far as to group the case with Dred Scott v. Sandford (1857) and Plessy v. Ferguson (1896), as examples of how badly judicial thinking can go astray.
Comes now Professor David E. Bernstein of George Mason University School of Law, who seeks to set the record straight by bestowing respectability on the Lochner case. Not every reader will agree with every step in his reasoning, but it is difficult not to respect his scholarship and conscientious facility of expression.
As most readers will remember, Lochner v. New York (1905), held unconstitutional so much of New York’s Bakeshop Act (1895) as limited the working hours of bakery employees. In an opinion delivered by Justice Rufus Peckham, the Court, dividing 5-4, declared that the statute infringed liberty of contract, that is, the freedom of parties, notwithstanding their disparity of bargaining power, to make whatever deal they chose to make. “We think,” wrote Justice Peckham, “the limit of the [state's] police power has been reached and passed in this case.” The statute thus, the Court held, effected a deprivation of liberty without due process of law in violation of the Fourteenth Amendment.
The author calls the dissent of Justice Oliver Wendell Holmes in the Lochner case “one of the most celebrated and influential opinions in American history.” It has been cited and quoted more often than the opinion of the Court. Best known perhaps is Holmes’s pronouncement that “The fourteenth amendment does not enact Mr. Herbert Spencer’s Social Statics.”
The book deals at length and in detail with the conflict, exemplified by Lochner, between the police power of the states and what has come to be known as substantive due process, that is, interpreting the due-process clause to include rights of the individual, including liberty of contract, against governmental authority. Bernstein maintains that Lochner played a crucial role in the establishment of that doctrine. He contends further that contrary to the conventional wisdom, the decision has done more good than harm.
In what some readers may see as an exercise of dubious relevance, the author in an early chapter goes into the background of the Lochner case. He shows that the Bakeshop Act was enacted under pressure from the bakery employees’ union and some large commercial bakeries. Their purpose, he contends, was to thwart competition by small, family-owned bakeries whose size required their employees to be available for work at all hours. The statute, says Bernstein, “favored entrenched special interests at the expense of competitors with less political power.”
Critics of the Supreme Court’s decision in Lochner, whom the author calls Progressives, favored freeing the states’ police power from any restriction by the due-process clause. Bernstein mentions as belonging in this category Holmes, Louis Brandeis, Learned Hand, Felix Frankfurter, Roscoe Pound and other prominent figures in the legal, academic and other fields. Hand and Frankfurter once called for repeal of the due-process clause. Brandeis is said to have favored, off the record, repeal of the entire Fourteenth Amendment.
Paradoxically, their permissive attitude toward the police power caused Progressives to condone measures that liberals of today would find offensive. Bernstein lists “state-imposed racial segregation, sex-specific labor laws, restrictions on private schooling and coercive eugenics” as among the kinds of legislation that Progressives argued lay within a state’s police power.
Conversely, conservatives who approved of the result in Lochner often took stands that are now considered liberal. For example, Justice James McReynolds, who has gone down in history as an arch-reactionary, spoke for the Court in Meyer v. Nebraska (1923), annulling a statute that forbade teaching to pre-high school students in a foreign language. He asserted that due process included the right “to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
Eventually, the Progressives prevailed, at least on the economic front. By the mid-1930s, thanks in part to appointments to the Court by President Franklin D. Roosevelt, liberty of contract had become a dead letter. Business regulation of any kind, including restrictions on wages and working conditions, could count on survival in the Supreme Court.
As for personal civil rights, however, the trend went in the opposite direction. The Court gradually intensified its scrutiny of state legislation in that area. By a process that the author describes in detail, the due-process clause came to subject state legislation not only to the first eight amendments of the Bill of Rights but also to certain “unenumerated” rights such as abortion, contraception and integration of the public schools. He characterizes all of these developments as derivatives of Lochner and its companion cases. In his words, “[M]odern Fourteenth Amendment civil liberties jurisprudence owes more to liberty of contract advocates and their suspicion of government power than to the Progressives and their cramped understandings of individual rights.”
How can a serious lawyer not be interested in constitutional history? Those who share this wonderment will find “Rehabilitating Lochner” worthwhile reading. Not all of them will find unchallengeable every point that the author makes. Yet all, or so this reviewer predicts, will broaden their understanding of our national charter and what the Supreme Court has done with it in the past century or so.