“De-habilitating” Lochner: A Response to David Bernstein

In my previous two posts as a guest blogger this week, I have served up a few thoughts about Conspirators Randy Barnett and Eugene Volokh, and the ubiquitous Richard Posner. Today, I offer a few words about David Bernstein.

In Chapter 6 of my new book – oh, have I mentioned in the last thirty seconds that I have a new book out? — I explore America’s Symbolic Constitution, encompassing a network of iconic texts, beyond the written Constitution itself, that help fill in the gaps of the written Constitution. These texts define a rich constitutional culture in America. They are constitutional texts because they help constitute us as Americans. They form part of the American Way of Life, the basic American creed for liberals and conservatives alike. The Declaration of Independence surely belongs in the core of this cluster of iconic texts; and so do the Federalist Papers, the Gettysburg Address, and the “I Have a Dream Speech” — to name just a few.

My chapter also identifies several texts that form part of the modern American anti-canon — texts that are widely demonized by judges from across the political and methodological spectrum as exemplars of how NOT to interpret the Constitution. I claim that by consensus, “three cases occupy the lowest circle of constitutional Hell and are today denounced by lawyers and judges across the spectrum.” The three cases are Dred Scott, Lochner, and Plessy. Mine is a descriptive and interpretive claim about our current practices, and in my footnotes I show that all three of these cases are in fact widely condemned by modern Supreme Court justices.

I explicitly acknowledge that “one can find scholars who praise Lochner and even some who call for its revival” but I immediately add that “one does not hear such calls on the Court itself.” Here is what I say about Lochner in my text:

Although Lochner v. New York is less well known outside legal circles, the very word “Lochner” is for legal insiders synonymous with judicial overreach. Lochner is thus not just a case, but an era and an attitude. In legal discourse it has even become a verb. To “Lochner” or to “Lochnerize” is to commit the same kind of judicial sin that characterized many of the Court’s rulings in what is now known as “the Lochner era” — roughly the mid-1880s through the mid-1930s — in which the Court without clear textual warrant struck down a multitude of reasonable reform statutes regulating free-market excesses.

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. But then, so was the Thirteenth Amendment itself — which redistributed slave property from masters to slaves with no compensation. Nor can it be thought that worker-health and worker-rights laws violated a pattern of lived freedom, given that a great many states (and large ones at that) repeatedly tried to enact such laws in the Progressive era. While Lochner could perhaps be defended as a plausible (albeit contestable) constitutional interpretation in 1905, the Court implausibly continued to follow a strongly anti-redistributionist line even after the American people in 1913 openly embraced the propriety of redistributive policies via an Income Tax Amendment that envisioned a strongly progressive — that is, redistributive — tax structure.

And in a footnote, I elaborate on why I for one was not persuaded by my friend David Bernstein’s recent attempt to rehabilitate Lochner. My biggest objection is that David simply did not even come close to describing, much less rebutting, the basic thrust of the standard critique of Lochner as impermissibly anti-redistributivist. Here, in its entirety, is my footnote on David:

The Lochner Court sharply distinguished between what it saw as legitimate and illegitimate government purposes. Protecting workers’ health and safety was a legitimate purpose; but it was illegitimate for government to enhance workers’ bargaining power for its own sake or to intentionally shift economic surplus from employers to employees. Thus the Court condemned any law that was a “labor law, pure and simple” in which government openly favored Labor at the expense of Capital. Lochner v. New York, 198 U.S. 45, 57 (1905). See also Coppage v. Kansas, 236 U.S. 1, 17-18 (1915), in which the Lochner-era Court condemned legislative efforts to level “inequalities of fortune.” For similar readings of the anti-redistributive essence of the Lochner case and the Lochner era, see, e.g., Laurence H. Tribe, “The Supreme Court, 1972 Term – Foreword: Toward a Model of Roles in the Due Process of Life and Law,” Harvard LR 87 (1973): 1, 6-7, 12-13 & n. 69; Jed Rubenfeld, “The Anti-Antidiscrimination Agenda,” Yale LJ 111(2002): 1141, 1146-47. For a recent effort to end the demonization of Lochner, see David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2010). Bernstein succeeds in establishing that Justice Holmes and several other extreme contemporary Progressive critics of Lochner should not be viewed as heroic figures; their unduly dismissive vision of individual constitutional rights should not have prevailed in the Lochner era and should not prevail today. Alas, much of the rest of Bernstein’s book fails to engage the best criticisms of Lochner, preferring instead to knock down an army of straw men. 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. Bernstein also oddly tries to claim Justice Harlan for his own team, even though Harlan famously dissented in Lochner. Ibid., 123-27. Despite his title, Bernstein fails to rehabilitate Lochner even though he does defrock Holmes. Bernstein would have done better to write a book lauding Lochner’s most admirable and trenchant critics, including the first Justice Harlan, Justice Brandeis, and Justice Black. While these three men disagreed about many things, each of these judicial icons contributed a great deal to what is best about modern constitutional law.

David, what say you? And Ilya – get ready; tomorrow’s your turn in the spotlight.