Let me start by expressing my delight that Professor Amar is guest-blogging here at the VC. Akhil is clearly one of the great constitutional scholars of our time, and I have learned a great deal from his work over the years. It’s therefore with some trepidation that I engage in this blog dialogue with him.
On to business. First, where we agree.
(1) “While Lochner could perhaps be defended as a plausible (albeit contestable) constitutional interpretation in 1905...” I don’t take any position in the book as to the correctness of Lochner beyond implicitly arguing that it was a plausible interpretation of the Fourteenth Amendment when it was decided. By contrast, the standard account of Lochner has long been that it involved out of control reactionary Justices attempting to impose Social Darwinistic views on the American people. So I think I can put this down as general agreement.
(2) Amar also seems to agree that some of the Court’s pre-New Deal due process decisions invalidating state and local regulation, those in the non-economic “civil liberties” realm, have gotten short shrift, and he doesn’t seem to dispute that these cases were to a significant extent outgrowths (in practice if not by necessity) of Lochner and like-minded due process “economic” cases. So, I’ll call this at least basic agreement.
(2) “Bernstein fails to highlight the fact that the most admirable cases of the Lochner era, on which modern case law continues to build, were all joined in relevant part by Justice Brandeis.” In retrospect, I do somewhat regret not treating Brandeis as more of a transitional figure between the harsh anti-rights posture of Justice Holmes and modern liberal concern for civil rights and civil liberties. On the other hand, as noted in the book, Brandeis adopted his rights-protective posture as a second-best solution. In contrast to his reputation as a strong civil libertarian, Brandeis would have preferred to have abolished the Due Process and Equal Protection Clauses entirely. But I’ll conclude that we agree that I should have given Brandeis more credit for moving Progressive jurisprudence in a liberal direction than I did.
Now for where we disagree:
(1) “The 1905 Lochner case itself, in which the Court invalidated a state maximum-hour law, was but one particularly salient example of the Court’s overeagerness to invalidate progressive legislation. Nothing in the written Constitution expressly prohibited maximum-hour laws, and it is hard to make a winning argument that the Constitution implicitly did so. The Court’s root objection to such laws was that they were designed to redistribute wealth from employers to laborers.” First, while overeagerness is in the eye of the beholder, it’s worth noting that the Court upheld the vast majority of Progressive legislation challenged under the Fourteenth Amendment, including licensing laws, child labor laws, workers’ compensation laws, eugenics laws, and much more. Second, the Court did not, in fact, generally object to maximum hours laws. Indeed, the Court turned back challenges to every maximum hours law that came before it both before and after Lochner.
(2) This suggests either that there was something special about the law in Lochner that raised the Court’s ire, or that it was simply an aberration. I provide some reasons in my book why the former is more likely correct, but either way it’s a mistake to see Lochner as the typical case of the period. The two other cases singled out by Amar, Dred Scott and Plessy, were historically extremely important–Dred Scott was seen as extremely significant in its own day, and Plessy as a precedent that potentially stood in the way of Brown v. Board of Education.
Lochner, by contrast, was not singled out in the legal literature until almost thirty years after it was implicitly overruled (not being considered important enough to be mentioned by name). Opponents of Griswold v. Connecticut and especially Roe v. Wade decided to make it, for more or less random reasons discussed in the book, the poster child of judicial activism via “substantive due process.” Defenders of those decisions responded by invoking the novel concept of a “Lochner era” [a phrase no one used until 1970] in which the Court improperly used the Constitution to defend economic interests–whereas using the Court to protect true “fundamental rights,” they argued is perfectly legitimate. Amar has brilliantly undermined standard mythology in so many areas of constitutional law, so I’m a bit disappointed that he has embraced the “Lochner era” and the “Lochner Court” shorthands that grossly and anachronistically attribute importance to Lochner that if never had during the relevant time period.
Holden v. Hardy, which upheld a maximum hours law for miners, is a much better exemplar of the Court’s actual due process jurisprudence before the New Deal, and Adair v. United States (invalidating a law banning employers from prohibiting their employees from joining unions) and Adkins v. Children’s Hospital (invalidating a minimum wage law) were much more controversial in their own day. However, Adair was a bad candidate for liberal obloquy because it was written by the sainted (after Brown) Justice Harlan, who explicitly endorsed the right to liberty of contract. This explains how I can claim him for my “team,” as Amar put it, and why I don’t see him as a “trenchant critic” of Lochner, but rather someone who simply disagreed with his brethren on how stringently to apply the right in the particular case. Adkins , meanwhile, was a bad candidate because the majority expressed great sensitivity to the fact that minimum wage laws for women only could easily operate to the latter’s disadvantage, while the dissenters operated under assumptions that would were widely conceived of as sexist by the 1970s.
(3) Finally, and most important, I disagree with Amar that the underlying motivation of the Court in Lochner and its pre-New Deal progreny was hostility to redistribution. I was aware before I wrote my book that Professor Amar had adopted this theory in previous work. His citation was to a famous, well-cited article by Cass Sunstein, Lochner’s Legacy. Here’s what I wrote about this theory in my book:
Sunstein argued that ... the Court sought to preserve what it saw as the “natural,” “status quo” distribution of wealth against redistributive regulations... Sunstein’s work quickly came to dominate legal scholars’ understanding of Lochner, but constitutional historians have properly dismissed Sunstein’s work on Lochner as ahistorical. (citing to G. Edward White, The Constitution and the New Deal 24-25(2000))
Admittedly, that’s rather thin gruel for rebutting a thesis that has been widely accepted among legal academics. But while Sunstein’s article is a fabulous work of legal theory, it’s not a serious historical work, and I didn’t see any reason to address it in detail in a book aiming to provide a sound historical account of Lochner.
I did, however, address the historical validity of Sunstein’s thesis in detail in my 2003 Texas Law Review article, Lochner’s Legacy’s Legacy. Sunstein graciously responded that “Bernstein examines the Court’s performance with far more care than I did; he greatly illuminates the era, and he offers reasons to question my basic claims.” Cass R. Sunstein, “Lochnering,” 82 Tex. L. Rev. 65, 65 (2003).
Of course, Amar can believe completely independently of Sunstein that the Court in Lochner and like-minded case was motivated primarily by concern over redistribution. Interested readers can take a look at my Texas article and decide whether I’ve made at least a presumptive case to the contrary. They can also see whether the argument I make in my book, that the Court’s jurisprudence was an outgrowth of longstanding natural rights ideology combined, secondarily, with a suspicion of “class legislation” (which is not the same as redistributive legislation) is more persuasive. I should add that my position isn’t set in stone, and is subject to revision based on future scholarship–I’ve already changed my views from adopting Howard Gillman’s class legislation thesis to staking out a natural rights explanation to allowing some room within my thesis for judicial concerns over class legislation, under the influence of Barry Cushman.
I therefore hope that Professor Amar will choose in the future to using his prodigious talents to further join the debate over the origins of Lochner and like-minded cases. A good way to provoke a dialogue on this, I think, is with the following question: If underlying motivation of Lochner and like-minded cases was redistribution, (1) how do we explain the Court’s invocation of Lochner [and other liberty of contract precedents] in cases like Meyer v. Nebraska
and Pierce v. Society of Sisters and other contexts involving what we now call civil liberties, with no “distribution” angle in sight? and (2) how do we explain that many cases, documented in my Texas article, in which the Supreme Court upheld blatantly redistributivist legislation, often unanimously?