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Rehabilitating Lochner: Defending Individual Rights against Progressive Reform
In this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of Lochner v. New York . This 1905 decision invalidated state laws limiting work hours and became the leading case contending that novel economic regulations were unconstitutional. Sure to be controversial, Rehabilitating Lochner argues that the decision was well grounded in precedent—and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents.
Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, Rehabilitating Lochner argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since.
Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, Rehabilitating Lochner argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since.
208 pages, Paperback
First published January 1, 2010
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David E. Bernstein
14 books8 followersDavid E. Bernstein is a Professor at the George Mason University School of Law.
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August 31, 2024
Lochner And Constitutional History
My interest in American history and constitutional history prompted me to read this new book, "Rehabilitating Lochner: Defending Individual Rights against Progressive Reform" (2011) by David Bernstein. Bernstein in the Foundation Professor at the George Mason University School of Law in Virginia. The book is published under the auspices of the Cato Institute.
Bernstein's study examines the decision in and subsequent historical reception of a 1905 decision of the United States Supreme Court in Lochner v. New York, 198 U.S. 45. In Lochner, the Supreme Court by a vote of 5-4 held unconstitutional a New York statute that limited the working hours of bakers to ten hours per day and 60 hours per week. The decision was to achieve notoriety in American constitutional law. I remember well discussions of the decision in my law school studies of more than thirty years ago.
To many legal scholars and historians, Lochner has become emblematic of a rejected jurisprudence in which judges used their own policy preferences and economic theories to invalidate legislation under the guise of constitutionalism, particularly, in this case, under the "due process" clause of the Fourteenth Amendment: "nor shall any state deprive any person of life, liberty, or property without due process of law." In Lochner, five members of the Supreme Court in an opinion by Justice Peckham ruled that the New York statute deprived bakers and their employees of their right to "liberty of contract" -- to make a contract to dispose of their labors, in derogation of the Fourteenth Amendment. Three members of the Court, in an opinion by Justice Harlan, agreed that the Fourteenth Amendment protected liberty of contract, but they concluded that the New York statute was enacted to protect the health of the bakers and of the public and thus did not violate liberty of contract. Only one member of the Lochner Court, Justice Holmes in his own celebrated separate dissent, rejected liberty of contract as a means for invalidating state legislation. Holmes concluded that the case was decided on the basis of an economic theory with which many people would disagree and observed tartly that "the Fourteenth Amendment does not enact Mr Herbert Spencer's Social Statics."
Holmes' dissent became a major component of the Progressive school of legal reform which eventually triumphed during the New Deal. Broadly, the Progressives held that courts were not to substitute their judgments for legislative judgments in considering the constitutionality of economic legislation but instead were to accord substantial deference to legislative determinations. The Lochner decision and its successors, in contrast, are based upon a theory that the Constitution protects certain individual rights, to "life, liberty, and property" and that the Court is to enforce these rights even as against the will of the majority.
As the title of the book suggests, Bernstein tries to "rehabilitate" Lochner and its form of reasoning against Progressive jurisprudence. He does not try to show that the result in Lochner was correct, (Bernstein seems highly sympathetic to the approach of Harlan's dissent, but not of Holmes's dissent). Instead, Bernstein tries to explain the origins of "liberty of contract" in prior Court decisions with their skepticism towards class-based legislation and their sympathy towards natural law and natural rights jurisprudence. Bernstein wants to show that Lochner, although it may have been wrongly decided, was not an illustration of judicial malfeasance or economic, class-based decision making but rather was a plausible attempt to protect individual rights as these rights had been developed in American law. Bernstein thus examines the rather murky sources of the "liberty of contract" doctrine. He examines the statute construed in the Lochner case and the case itelf, which was not brought by "big business" or "large-scale capitalism" but by a small, struggling entrepeneur. Bernstein considers the three opinions in Lochner by Pechkam, Harlan, and Holmes. Bernstein observes that Holmes' reference to "Spencer's Social Statics" does not accues the Court of social darwinism, as frequently assumed, but rather of libertarianism, a different matter. Bernstein's account of the case is valuable, but he might have paid more attention to the inflated rhetoric of the Court's majority decision.
After discussing the Lochner decision itself, Bernstein examines the individual rights jurisprudence he finds in that case. He contrasts Lochner with the Progressive jurisprudence which is deferential to government in economic matters, in cases involving sex discrimination (especially cases which involved regulation of working hours and working conditions of women), race, and civil liberties in the pre-New Deal Era. He argues that the Lochner precedent and the Justices which followed it tended to be more protective of individuals, including women and minorities than their Progressive counterparts. He examines some cases that will be familiar to legal students and some than may be obscure, including, Buchanan v. Warely, 245 U.S. 60 (1917) in which the Court invalidated a state zoning law restricting certain residential areas to white people. Bernstein concludes that, contrary to much received opinion, Lochnerian jurisprudence was at least as protective of individual civil rights as was Progressive jurisprudence.
The final sections of Bernstein's book examine post-New Deal and modern cases. Paradoxically, in these cases Lochner is vilified while at the same time the Court tends to find unenumerated, non-textual individual rights in the Due Process clause of the Fourteenth Amendment. These rights include, of course, Brown v. Board of Education and its progeny. But they also include, much more questionably and controversially, Griswold and Roe v. Wade. As many legal scholars have done, Bernstein asks how due process jurisprudence can be rejected in cases involving economic regulation on the one hand while expanded in cases involving claimed personal liberties on the other hand. Lochner's jurisprudence, Bernstein argues, has been used even while it has been condemned. Bernstein concludes (p. 124) that "Lochner's legacy, then, lives on in American constitutional law, in the application of various rights, enumerated and unenumerated, against the states via the Due Process Clause.... Contemporary Fourteenth Amendment civil liberties jurisprudence owes more to the views of Justices Harlan, Pechham, Sutherland, and McReynolds than to Holmes, Brandeis, and Frankfurter and their skepticism of constitutional protection for individual rights." "A more accurate view of constitutional history" Bernstein maintains, "would therefor lead to a more nuanced, civil, and constructive debate about modern constitutional law" providing "reason enough to rehabilitate Lochner." (p. 129)
Bernstein has written a challenging, provocative book about American history and constitutional law and about the tendency to make too easy assumptions of whatever type. No one legal theory or philosophy has a monopoly on the truth to the exclusion of all others. I was glad to revisit these important issues in this book. The primary audience of this book will likely be historians and students of constitutional law.
Robin Friedman
My interest in American history and constitutional history prompted me to read this new book, "Rehabilitating Lochner: Defending Individual Rights against Progressive Reform" (2011) by David Bernstein. Bernstein in the Foundation Professor at the George Mason University School of Law in Virginia. The book is published under the auspices of the Cato Institute.
Bernstein's study examines the decision in and subsequent historical reception of a 1905 decision of the United States Supreme Court in Lochner v. New York, 198 U.S. 45. In Lochner, the Supreme Court by a vote of 5-4 held unconstitutional a New York statute that limited the working hours of bakers to ten hours per day and 60 hours per week. The decision was to achieve notoriety in American constitutional law. I remember well discussions of the decision in my law school studies of more than thirty years ago.
To many legal scholars and historians, Lochner has become emblematic of a rejected jurisprudence in which judges used their own policy preferences and economic theories to invalidate legislation under the guise of constitutionalism, particularly, in this case, under the "due process" clause of the Fourteenth Amendment: "nor shall any state deprive any person of life, liberty, or property without due process of law." In Lochner, five members of the Supreme Court in an opinion by Justice Peckham ruled that the New York statute deprived bakers and their employees of their right to "liberty of contract" -- to make a contract to dispose of their labors, in derogation of the Fourteenth Amendment. Three members of the Court, in an opinion by Justice Harlan, agreed that the Fourteenth Amendment protected liberty of contract, but they concluded that the New York statute was enacted to protect the health of the bakers and of the public and thus did not violate liberty of contract. Only one member of the Lochner Court, Justice Holmes in his own celebrated separate dissent, rejected liberty of contract as a means for invalidating state legislation. Holmes concluded that the case was decided on the basis of an economic theory with which many people would disagree and observed tartly that "the Fourteenth Amendment does not enact Mr Herbert Spencer's Social Statics."
Holmes' dissent became a major component of the Progressive school of legal reform which eventually triumphed during the New Deal. Broadly, the Progressives held that courts were not to substitute their judgments for legislative judgments in considering the constitutionality of economic legislation but instead were to accord substantial deference to legislative determinations. The Lochner decision and its successors, in contrast, are based upon a theory that the Constitution protects certain individual rights, to "life, liberty, and property" and that the Court is to enforce these rights even as against the will of the majority.
As the title of the book suggests, Bernstein tries to "rehabilitate" Lochner and its form of reasoning against Progressive jurisprudence. He does not try to show that the result in Lochner was correct, (Bernstein seems highly sympathetic to the approach of Harlan's dissent, but not of Holmes's dissent). Instead, Bernstein tries to explain the origins of "liberty of contract" in prior Court decisions with their skepticism towards class-based legislation and their sympathy towards natural law and natural rights jurisprudence. Bernstein wants to show that Lochner, although it may have been wrongly decided, was not an illustration of judicial malfeasance or economic, class-based decision making but rather was a plausible attempt to protect individual rights as these rights had been developed in American law. Bernstein thus examines the rather murky sources of the "liberty of contract" doctrine. He examines the statute construed in the Lochner case and the case itelf, which was not brought by "big business" or "large-scale capitalism" but by a small, struggling entrepeneur. Bernstein considers the three opinions in Lochner by Pechkam, Harlan, and Holmes. Bernstein observes that Holmes' reference to "Spencer's Social Statics" does not accues the Court of social darwinism, as frequently assumed, but rather of libertarianism, a different matter. Bernstein's account of the case is valuable, but he might have paid more attention to the inflated rhetoric of the Court's majority decision.
After discussing the Lochner decision itself, Bernstein examines the individual rights jurisprudence he finds in that case. He contrasts Lochner with the Progressive jurisprudence which is deferential to government in economic matters, in cases involving sex discrimination (especially cases which involved regulation of working hours and working conditions of women), race, and civil liberties in the pre-New Deal Era. He argues that the Lochner precedent and the Justices which followed it tended to be more protective of individuals, including women and minorities than their Progressive counterparts. He examines some cases that will be familiar to legal students and some than may be obscure, including, Buchanan v. Warely, 245 U.S. 60 (1917) in which the Court invalidated a state zoning law restricting certain residential areas to white people. Bernstein concludes that, contrary to much received opinion, Lochnerian jurisprudence was at least as protective of individual civil rights as was Progressive jurisprudence.
The final sections of Bernstein's book examine post-New Deal and modern cases. Paradoxically, in these cases Lochner is vilified while at the same time the Court tends to find unenumerated, non-textual individual rights in the Due Process clause of the Fourteenth Amendment. These rights include, of course, Brown v. Board of Education and its progeny. But they also include, much more questionably and controversially, Griswold and Roe v. Wade. As many legal scholars have done, Bernstein asks how due process jurisprudence can be rejected in cases involving economic regulation on the one hand while expanded in cases involving claimed personal liberties on the other hand. Lochner's jurisprudence, Bernstein argues, has been used even while it has been condemned. Bernstein concludes (p. 124) that "Lochner's legacy, then, lives on in American constitutional law, in the application of various rights, enumerated and unenumerated, against the states via the Due Process Clause.... Contemporary Fourteenth Amendment civil liberties jurisprudence owes more to the views of Justices Harlan, Pechham, Sutherland, and McReynolds than to Holmes, Brandeis, and Frankfurter and their skepticism of constitutional protection for individual rights." "A more accurate view of constitutional history" Bernstein maintains, "would therefor lead to a more nuanced, civil, and constructive debate about modern constitutional law" providing "reason enough to rehabilitate Lochner." (p. 129)
Bernstein has written a challenging, provocative book about American history and constitutional law and about the tendency to make too easy assumptions of whatever type. No one legal theory or philosophy has a monopoly on the truth to the exclusion of all others. I was glad to revisit these important issues in this book. The primary audience of this book will likely be historians and students of constitutional law.
Robin Friedman
February 1, 2010
Read in manuscript. This is coming out late this year, I think, though there isn't a pub date yet. Regardless, I think it's going to make a splash when it does come out, at least within the specialized pond of legal academia and intellectual history.
This book gathers and carries forward a lot of the counter-historical work done to try and roll back a lot of the Lochner v. New York hate we've all been spoon-fed in law school. He does a great job with the history of the case and the intellectual tides of the time, with the general goal of arguing that the liberty of contract crowd wasn't just out for big business over the little guy, but was actually drawing on some long-standing natural law principles. The book then does a whirlwind through women's rights, the early segregation cases, the early civil liberties stuff like Pierce v. Society of Sisters and forward to reproductive rights and the vilification of substantive due process. He connects up Lochner with a lot of the later civil liberties work in order to literally reverse how most of us presume the line actually runs -- from the Progressives, the anti-lochnerites.
It's a cracking read, as these things go, hampered in places by its revisionist project – it spends too much time on what it's arguing against, rather than in straight history, and is thus less convincing in places. Still, totally worth it if you're, you know, one of the slice of people who have any idea what I've just been talking about, and the tinier slice who actually give a damn.
This book gathers and carries forward a lot of the counter-historical work done to try and roll back a lot of the Lochner v. New York hate we've all been spoon-fed in law school. He does a great job with the history of the case and the intellectual tides of the time, with the general goal of arguing that the liberty of contract crowd wasn't just out for big business over the little guy, but was actually drawing on some long-standing natural law principles. The book then does a whirlwind through women's rights, the early segregation cases, the early civil liberties stuff like Pierce v. Society of Sisters and forward to reproductive rights and the vilification of substantive due process. He connects up Lochner with a lot of the later civil liberties work in order to literally reverse how most of us presume the line actually runs -- from the Progressives, the anti-lochnerites.
It's a cracking read, as these things go, hampered in places by its revisionist project – it spends too much time on what it's arguing against, rather than in straight history, and is thus less convincing in places. Still, totally worth it if you're, you know, one of the slice of people who have any idea what I've just been talking about, and the tinier slice who actually give a damn.
November 20, 2011
If you attended law school in the past couple of decades, invariably you heard Lochner castigated as a Supreme Court decision second only to Dred Scott, and maybe Plessy v. Ferguson, in its wickedness. As Professor Bernstein ably shows in his presentation of legal historians’ new, more accurate understanding of the history of economic rights, this is less rooted in fact than in modern political battles.
In Lochner v. New York, the Supreme Court famously invalidated a state law that limited the number of hours a day a baker could work. Perhaps unfairly, it is seen as the flagship case for the now much-reviled idea there is a liberty of contract right implicit in the Due Process clause of the 14th Amendment. However, as Prof. Bernstein shows, Lochner was neither extraordinary nor unprecedented. He also paints a very different picture of the context surrounding the case than that typically given today. It was not a showdown between big business and workers. The large bakeries by and large supported the law because it hurt their small competitors more than them (the law was also heavily union-supported). I also found it interesting that this was an early example of a “test” case—small bakery owner Lochner, seen as a sympathetic plaintiff, coordinated his indictment for violating the law with an employee.
Prof. Bernstein organizes his book into eight plainly named chapters: The Rise of Liberty of Contract, The Lochner Case, Progressive Sociological Jurisprudence, Sex Discrimination and Liberty of Contract, Liberty of Contract and Segregation Laws, The Decline of Liberty of Contract, and the Rise of “Civil Liberties”, Lochner in Modern Times, and Conclusion.
Prof. Bernstein buttresses his direct discussion of Lochner in the early chapters with ample context. The concept of economic rights was not an anomalous legal doctrine. It was rooted in orginalist interpretation of the Constitution (albeit a proto-originalism). Statutes were challenged under two different legal theories, both rooted in the 14th Amendment. One was under a liberty of contract theory based out of the Due Process clause (an early version of substantive due process). The other was under a theory of class legislation based out of the Equal Protection Clause. The liberty of contract theory proved to be more fruitful in attacking statutes. Unlike the current attacks on the healthcare bill, which all argue it does not fall under any of Congress’s enumerated powers, the theories Prof. Bernstein covers applied to state as well as federal statutes.
Prof. Bernstein takes pains to show the modern left is not the pure philosophical successor to 19th century Progressives. Progressives were generally, with a significant exception for Free Speech, hostile to individual rights across the board. Notably, this included equal protection for African-Americans. Prof. Bernstein makes a strong case that Buchanan v. Warley, by preventing the elimination of the property rights of African-Americans and facilitating African-American migration from oppressive southern states to the northeast and Midwest, dramatically limited the pernicious effects of Jim Crow segregation. Modern constitutional scholars are not so kind. Professor Akil Reed Amar only finds room to devote a single paragraph to Buchanan in his 1,856 page tome of a casebook. Similarly, it was Progressive hero Oliver Wendell Holmes who wrote the opinion in Buck v. Bell upholding a eugenics statute. Prof. Amar doesn’t think much of the import of Buck either—it is relegated to a footnote in his casebook.
Lochner and its ilk were reversed and distinguished into nothingness during the New Deal era, but it was only later that they gained their current infamy. All of the justices in the Griswold case establishing a right to privacy relied on the Meyer and Pierce cases, both of which used a “Lochner-like understanding of the Due Process clause.” The Warren Court was frequently accused of Lochner-ian judicial activism. In Roe v. Wade, the court firmly ignored both 9th Amendment and “penumbras and emanations” arguments, rooting the right to privacy in the 14th Amendment. With the rebirth of substantive due process as a protector of non-economic rights, the Lochner line of cases suddenly became very dangerous to legal scholars and jurists very supportive of the right to privacy but very hostile to economic rights. Laurence Tribe’s incredibly influential treatise lead the charge in the re-defining the Lochner cases.
Prof. Bernstein writes with clear prose and provides plentiful historical background, context, and anecdotes. I also must say that Rehabilitating Lochner has the best cover I have ever seen on an academic book.
Prof. Bernstein is a legal historian and a consequentialist, so he does not spend much time examining the philosophical implications of the Lochner-era, its denouement, and its later revision. But that is all to the better, as it allows the reader to draw his or her own conclusions. I think the twin conclusions to be drawn are that economic rights played a positive role in late 19th century jurisprudence (and law students should be taught as much) and that there must be some place for economic rights in modern substantive due process. I think this book must also be extremely important to any classic liberal legal scholar.
In Lochner v. New York, the Supreme Court famously invalidated a state law that limited the number of hours a day a baker could work. Perhaps unfairly, it is seen as the flagship case for the now much-reviled idea there is a liberty of contract right implicit in the Due Process clause of the 14th Amendment. However, as Prof. Bernstein shows, Lochner was neither extraordinary nor unprecedented. He also paints a very different picture of the context surrounding the case than that typically given today. It was not a showdown between big business and workers. The large bakeries by and large supported the law because it hurt their small competitors more than them (the law was also heavily union-supported). I also found it interesting that this was an early example of a “test” case—small bakery owner Lochner, seen as a sympathetic plaintiff, coordinated his indictment for violating the law with an employee.
Prof. Bernstein organizes his book into eight plainly named chapters: The Rise of Liberty of Contract, The Lochner Case, Progressive Sociological Jurisprudence, Sex Discrimination and Liberty of Contract, Liberty of Contract and Segregation Laws, The Decline of Liberty of Contract, and the Rise of “Civil Liberties”, Lochner in Modern Times, and Conclusion.
Prof. Bernstein buttresses his direct discussion of Lochner in the early chapters with ample context. The concept of economic rights was not an anomalous legal doctrine. It was rooted in orginalist interpretation of the Constitution (albeit a proto-originalism). Statutes were challenged under two different legal theories, both rooted in the 14th Amendment. One was under a liberty of contract theory based out of the Due Process clause (an early version of substantive due process). The other was under a theory of class legislation based out of the Equal Protection Clause. The liberty of contract theory proved to be more fruitful in attacking statutes. Unlike the current attacks on the healthcare bill, which all argue it does not fall under any of Congress’s enumerated powers, the theories Prof. Bernstein covers applied to state as well as federal statutes.
Prof. Bernstein takes pains to show the modern left is not the pure philosophical successor to 19th century Progressives. Progressives were generally, with a significant exception for Free Speech, hostile to individual rights across the board. Notably, this included equal protection for African-Americans. Prof. Bernstein makes a strong case that Buchanan v. Warley, by preventing the elimination of the property rights of African-Americans and facilitating African-American migration from oppressive southern states to the northeast and Midwest, dramatically limited the pernicious effects of Jim Crow segregation. Modern constitutional scholars are not so kind. Professor Akil Reed Amar only finds room to devote a single paragraph to Buchanan in his 1,856 page tome of a casebook. Similarly, it was Progressive hero Oliver Wendell Holmes who wrote the opinion in Buck v. Bell upholding a eugenics statute. Prof. Amar doesn’t think much of the import of Buck either—it is relegated to a footnote in his casebook.
Lochner and its ilk were reversed and distinguished into nothingness during the New Deal era, but it was only later that they gained their current infamy. All of the justices in the Griswold case establishing a right to privacy relied on the Meyer and Pierce cases, both of which used a “Lochner-like understanding of the Due Process clause.” The Warren Court was frequently accused of Lochner-ian judicial activism. In Roe v. Wade, the court firmly ignored both 9th Amendment and “penumbras and emanations” arguments, rooting the right to privacy in the 14th Amendment. With the rebirth of substantive due process as a protector of non-economic rights, the Lochner line of cases suddenly became very dangerous to legal scholars and jurists very supportive of the right to privacy but very hostile to economic rights. Laurence Tribe’s incredibly influential treatise lead the charge in the re-defining the Lochner cases.
Prof. Bernstein writes with clear prose and provides plentiful historical background, context, and anecdotes. I also must say that Rehabilitating Lochner has the best cover I have ever seen on an academic book.
Prof. Bernstein is a legal historian and a consequentialist, so he does not spend much time examining the philosophical implications of the Lochner-era, its denouement, and its later revision. But that is all to the better, as it allows the reader to draw his or her own conclusions. I think the twin conclusions to be drawn are that economic rights played a positive role in late 19th century jurisprudence (and law students should be taught as much) and that there must be some place for economic rights in modern substantive due process. I think this book must also be extremely important to any classic liberal legal scholar.
July 4, 2017
This is the true story behind the much reviled Supreme Court case, Lochner v. NY. The principles found in Lochner form the basis of modern civil liberties. Despite this fact, statists paint Lochner as the worst example of "judicial activism" in history even going as far as to place it in the same category as Dred Scott. This lengthy essay makes an excellent case for bringing the truth of Lochner forward and engaging with its principles in the future.
Note: If you do not have a background in the study of law, this book will likely be difficult to understand. To get a simpler overview of the Lochner situation, you should read Terms of Engagement by Clark Neily.
Note: If you do not have a background in the study of law, this book will likely be difficult to understand. To get a simpler overview of the Lochner situation, you should read Terms of Engagement by Clark Neily.
January 10, 2014
The Due Process Clause of the Fourteenth Amendment to the United States Constitution imposes upon the states a prohibition against depriving any person of “life, liberty, or property, without due process of law.” In its 1905 decision Lochner v. New York, the Supreme Court used this clause to strike down a state law limiting the number of hours bakers could work per week. The Court reasoned that the state’s bakers were deprived of their “liberty of contract” – that is, their liberty to negotiate with an employer to sell their services however they saw fit.
The Court’s now defunct decision is nearly universally despised by modern scholars. Those on the left side of the political spectrum criticize the decision for its seeming assumption that mere bakers can bargain on an equal footing with large corporations, while those on the right side of the political spectrum criticize the decision for its reliance on “substantive due process” – a legal concept with which the Court has since invented any number of new “liberties,” including those at the heart of the much reviled Roe v. Wade. Professor David Bernstein, in his self-explanatorily titled book, Rehabilitating Lochner, presents the decision in a more positive light. His argument is divided into seven chapters:
• Chapter 1 lays out the intellectual origins of the liberty of contract doctrine and addresses the substantive due process arguments upon which the doctrine rests.
• Chapter 2 presents a defense of the Lochner decision, as well as a critique of the New York maximum hours law underlying it.
• Chapter 3 analyzes the era’s “progressive” jurisprudence as Lochner’s alternative, demonstrating that much of what we now think of the so-called “Lochner era” is actually post-WWII revisionism, projecting progressivism’s crimes onto progressivism’s critics.
• Chapter 4 makes that case that the liberty of contract doctrine advanced women’s rights by treating them as men’s equals in negotiations, rather than frail wards of the state needing paternalistic protection.
• Chapter 5 shows how the liberty of contract doctrine was used to strike down certain segregation laws, laying the legal groundwork for African-American migration and the coming civil rights movement.
• Chapter 6 deconstructs the common narrative that progressive liberty of contract critics were also early proponents of civil rights – and details how the decoupling of civil and economic rights led to liberty of contract’s demise.
• Finally, Chapter 7 demonstrates the Lochner decision’s continuing influence in American law – especially through the modern resurrection of substantive due process – despite its adherents’ claims to the contrary.
The book is a well documented, well argued, and well written piece of legal history. Chapters 3 and 4 are the strongest, effortlessly taking the “social Darwinist” moniker so often lobbed at Lochner and throwing it right back in the faces of the decision’s dissenters. The book didn’t quite sell me on substantive due process – though to be fair, the author wasn’t quite attempting a sale. He’s attempting to rescue Lochner from its caricaturized place in legal discourse, not convince the reader of its absolute merit. As he points out in his conclusion, he’s “rehabilitating” Lochner, not resurrecting it. And in that modest mission, he succeeds.
The Court’s now defunct decision is nearly universally despised by modern scholars. Those on the left side of the political spectrum criticize the decision for its seeming assumption that mere bakers can bargain on an equal footing with large corporations, while those on the right side of the political spectrum criticize the decision for its reliance on “substantive due process” – a legal concept with which the Court has since invented any number of new “liberties,” including those at the heart of the much reviled Roe v. Wade. Professor David Bernstein, in his self-explanatorily titled book, Rehabilitating Lochner, presents the decision in a more positive light. His argument is divided into seven chapters:
• Chapter 1 lays out the intellectual origins of the liberty of contract doctrine and addresses the substantive due process arguments upon which the doctrine rests.
• Chapter 2 presents a defense of the Lochner decision, as well as a critique of the New York maximum hours law underlying it.
• Chapter 3 analyzes the era’s “progressive” jurisprudence as Lochner’s alternative, demonstrating that much of what we now think of the so-called “Lochner era” is actually post-WWII revisionism, projecting progressivism’s crimes onto progressivism’s critics.
• Chapter 4 makes that case that the liberty of contract doctrine advanced women’s rights by treating them as men’s equals in negotiations, rather than frail wards of the state needing paternalistic protection.
• Chapter 5 shows how the liberty of contract doctrine was used to strike down certain segregation laws, laying the legal groundwork for African-American migration and the coming civil rights movement.
• Chapter 6 deconstructs the common narrative that progressive liberty of contract critics were also early proponents of civil rights – and details how the decoupling of civil and economic rights led to liberty of contract’s demise.
• Finally, Chapter 7 demonstrates the Lochner decision’s continuing influence in American law – especially through the modern resurrection of substantive due process – despite its adherents’ claims to the contrary.
The book is a well documented, well argued, and well written piece of legal history. Chapters 3 and 4 are the strongest, effortlessly taking the “social Darwinist” moniker so often lobbed at Lochner and throwing it right back in the faces of the decision’s dissenters. The book didn’t quite sell me on substantive due process – though to be fair, the author wasn’t quite attempting a sale. He’s attempting to rescue Lochner from its caricaturized place in legal discourse, not convince the reader of its absolute merit. As he points out in his conclusion, he’s “rehabilitating” Lochner, not resurrecting it. And in that modest mission, he succeeds.
December 3, 2018
"Lochnerism n. generally, a form of judicial activism in which court decisions are made based upon presumed rights not specifically addressed by existing (Constitutional) law, especially when influenced by political or personal beliefs. Etymological Note: From Lochner v. New York, 198 U.S. 45 (1905) ...." (https://www.waywordradio.org/lochnerism/). David Bernstein narrowly aims, as the title expressly says, to rehabilitate Lochner, to show that the epithet "Lochnerism" merely "substitut(es) empty rhetoric for meaningful constitutional argument." On the one hand, he succeeds admirably; it's a laudable revisionist history. But on the other, he's fighting a very strong current. Just last Term, for example, the Court in Epic Systems contained a back-and-forth between majority and dissent in which both sides hewed to the orthodox trashing of Lochner, https://scholar.google.com/scholar_ca... ("The dissent sees things a little bit differently. In its view, today's decision ushers us back to the Lochner era when this Court regularly overrode legislative policy judgments. ... Our decision does nothing to override Congress's policy judgments."). Yet, as Bernstein shows, this is a mischaracterization of Lochner -- there was no "Lochner era" when the Court "regularly overrode legislative policy judgments."
Worth noting: at the time Lochner was decided, as Bernstein ably shows, there was a real question about whether due process covered substantive as well as procedural rights. Lochner said it did, and if the particular context (liberty of contract) no longer has much purchase, the core concept is now taken as given. No one today would dare argue that substantive due process isn't cognizable.
Worth noting: at the time Lochner was decided, as Bernstein ably shows, there was a real question about whether due process covered substantive as well as procedural rights. Lochner said it did, and if the particular context (liberty of contract) no longer has much purchase, the core concept is now taken as given. No one today would dare argue that substantive due process isn't cognizable.
June 16, 2015
Interesting Quote:
"Progressive lawyers [before WWII] believed that judges' legalistic constitutional justifications for invalidating reform legislation [like in the case of Lochner v. New York] masked their underlying individualistic policy preferences...Judges' refusal to acknowledge their (incorrect) background assumptions so that they could be corrected by Progressive reformers justified stripping them of all discretion. [Judge Learned] Hand and [Justice] Frankfurter both wrote unsigned editorials for the New Republic calling for the repeal of the Fifth and Fourteenth Amendments' due process clauses. Privately, Justice Brandeis supported repeal of the entire Fourteenth Amendment."
-David Bernstein, Rehabilitating Lochner
"Progressive lawyers [before WWII] believed that judges' legalistic constitutional justifications for invalidating reform legislation [like in the case of Lochner v. New York] masked their underlying individualistic policy preferences...Judges' refusal to acknowledge their (incorrect) background assumptions so that they could be corrected by Progressive reformers justified stripping them of all discretion. [Judge Learned] Hand and [Justice] Frankfurter both wrote unsigned editorials for the New Republic calling for the repeal of the Fifth and Fourteenth Amendments' due process clauses. Privately, Justice Brandeis supported repeal of the entire Fourteenth Amendment."
-David Bernstein, Rehabilitating Lochner
May 29, 2015
so basically thia is an erudite liberal fascism. the basic argument is that the "progreasives" opposed to Lochner did not believe in civil liberties. there's no real reason why those positions have to be linked. it's kind of maybe true that a government powerful enough to regulate bakers could also enforce segregation. I guess.
but it doesn't mean that baker shouls necessarily be unregulated.
some of the revisionism makes sense, though-about Lochner's shadow growing over time. but that's like 40 pages in a 100 page book.
but it doesn't mean that baker shouls necessarily be unregulated.
some of the revisionism makes sense, though-about Lochner's shadow growing over time. but that's like 40 pages in a 100 page book.
February 2, 2016
The "Legend of Lochner" has grown into more myth than reality. My con law professor from George Mason, David Bernstein, wrote this compelling counter-narrative. It's hardly a full-throated defense of the Lochner decision or the Supreme Court generally, but it does provide some of the historical context and legal nuance that is lost in the mainstream law school narrative. Why not 5 stars? Frankly, it was a little dry. I suppose that is to be expected when an academic writes a book about early 20th century Supreme Court liberty of contract jurisprudence though.
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