The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence

by Howard Gillman

The Constitution Besieged offers a compelling reinterpretation of one of the most notorious periods in American constitutional history. In the decades following the Civil War, federal and state judges struck down as unconstitutional a great deal of innovative social and economic legislation. Scholars have traditionally viewed this as the work of a conservative judiciary more interested in promoting laissez-faire economics than in interpreting the Constitution. Howard Gillman challenges this scholarly orthodoxy by showing how these judges were in fact observing a long-standing constitutional prohibition against "class legislation."

Genres: Law, Nonfiction, History

328 pages, Hardcover

First published December 4, 1992

Reviews

[Frank Stein · Rating 4 out of 5]

Though this can be a somewhat tiring read, I think one has to face the fact that the author is fundamentally right in his main argument, and that this book therefore deserves much more attention and thought than it has been given. Gillman admits that the lineaments of his argument have been made before, part of a "revisionist" view of Lochner-era of jurisprudence, but his is the first book to place this new view in the total history of American thought and law and to point to its supreme importance.

Gillman argues that "equal justice under law" or "equal protection" or the opposition to "class legislation" was the cynosure of constitutional thought in the 19th and early 20th century, and that every legislative enactment that threatened to grant "special privileges" to one class or group instead of another was treated as inherently suspect. He traces this back to the founders' concern with "factions" but especially to the Jacksonian era's opposition to corporate privilege, during which many states amended or reinterpreted their constitutions to explicitly or implicitly prevent any special grants or privileges to one group. In Bank v. Cooper (1831) Jackson's own state;s Supreme Court struck down the creation of a special court to hear state bank cases, and in the same year the same court in Wally's Heirs v. Kennedy struck down an act to inhibit outsiders bringing lawsuits on behalf of Indians on reservations. Both of these cases seem to go against the tenor of Jackson's political policies, but they were certainly of a piece with his constitutional vision, and that's part of Gillman's argument. This "ideology" of equal protection was not a mere scrim to cover up political or class preferences, but a real part of American thought that had real consequences.

Once this ideology was supposedly incorporated in the U.S. constitution with the 14th Amendment's "equal protection" clause, it went truly national. In cases like Loan Association v. City of Topeka (1874) the court prevented cities from issuing debt to benefit business interests. This was not just "laissez-faire" under a different name, but a constant investigation of the motives and affects of legislation on the polity. The court kept looking for any grant to one group or another that might upset the equality of all under the law.

Gillman argues that this ideology was eventually overthrown by the changing nature of American capitalism, which created unequaled economic power in large corporations that demanded a proportionately unequal response on government that inevitability burdened and benefited certain classes, mainly the workers. Perhaps ideology mattered more in this change too, however, than the supposed base of economic relations as Gillman argues

In any case, despite a tendency to loquacious asides and a desire to re-litigate cases that have been discussed very thoroughly elsewhere, this book should be deeply pondered by those who care about the US Constitution and American government more generally.

[Vincent Li · Rating 4 out of 5]

A pretty interesting book with a short thesis. The author argues that the Lochner period, which is conventionally portrayed as a struggle between lassiez faire capitalism and social regulation, is actually mischaracterized (and mostly driven by just reading Holmes's dissent). Instead, the author argues that the Lochner doctrine was that property rights could be altered for the true general welfare, but not for the benefit of a particular segment of society (so called class legislation) to preserve the principle of equality before the law.

The author argues that this idea, of the constitution as prohibiting special class legislation originates in the Founding Era, and special state legislation for debtors (debt relief) and farmers (inflationary paper currency) actually encouraged the formation of a national government to "curb" these abuses. The author then traces the idea from the Jeffersonians, to the Loco Foco/Jacksonian Democrats (who hated legal privileges like non-general charter/monopolies) to the Lochner court. There is an interesting discussion of how most of the doctrine had evolved in the states before being taken to the national courts through the 14th amendment, which was seen as incorporating the ban on special interest legislation. Instead of being dogmatically pro-property rights, the court identified between abridgment of property rights that were truly for the general welfare, and when such a general welfare justification was simply pretext for special benefits. That would explain some of the oddities of the cases surrounding Lochner. The court carved out exceptions sometimes, if a particular actor was imposing a cost on a particular sector of society, some legislation was allowed to correct the inbalance (special mining safety laws for instance), but there must have been a causal connection. The early legal realists instead of wanting to jettison this framework wanted the courts to be more realistic about the general welfare, and use "scientific" methods instead of intuition to determine what was truly for public health and safety.

The author argues that the breakdown the Lochner consensus was caused by the development of a large permanent underclass. Whereas before poor workers could go out to the frontier and maintain their independence or become semi-independent artisans, by the Lochner era, the frontier was closed and there was the development of a permanent industrial labor. The reasoning is that the logic of everyone having an equal playing ground was eroded by economic realities (though I am not sure I am convinced by this point). Starting with maximum hour laws and minimum wage laws which were advanced to protect the health of workers, the courts struggled with categorizing such legislation as either in the general welfare or as impermissible class legislation (wealth transfer). While originally, some advocates of the minimum wage argued that the it could fit by reducing industrial strife or by ensuring basic living standards for workers, eventually the court gave up on trying to draw the distinction at all, and instead deferred to the legislature on such matters.

Overall, an interesting thesis with plenty of evidence and support. The author draws together old law review articles, state court cases and even briefs of cases in an impressive marshaling of evidence. Ultimately, I am not sure if I am convinced that the abandonment of judicial supervision against special interest legislation was warranted, though the author appears to accept it as unavoidable because of the raise of industrial capitalism. That being said, the book can be a little dry, sometimes repeating redundant information. Other times I found the writing too unnecessarily complex, spending pages and long sentences to say simple things like, judges don't just do what they politically prefer but at least have some loyalty to following the law. A recommended read for those with a special interest in this area law, and a useful reference for future projects I'm certain.

[Charlie Lea · Rating 5 out of 5]

A fascinating study of how the police powers jurisprudence of the 19th century justifies the courts infamous decision in Lochner vs New York follower by an equally interesting discussion of how drastic changes in the US economy and social structure ultimately required the court to over turn 150 years of jurisprudence in West coast hotel, ultimately bringing about “privileged freedoms” jurisprudence of the 20th century.

The study reads as fair, complete, and irrefutably true.