H.'s Reviews > Rehabilitating Lochner: Defending Individual Rights against Progressive Reform

Rehabilitating Lochner by David E. Bernstein
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's review
Aug 10, 2011

it was amazing
bookshelves: professional
Read in September, 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.
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