A Too-Quick Response to David and Ilya

Earlier this week, I said that I probably would not have time to respond immediately to any comments that my fellow Conspirators might post in response to my guest blogs this week.  And in fact, I don’t have time to do a proper job — I am on the road this week — but the temptation to say just a bit in response to my old friends David and Ilya is irresistible. David, I continue to think that Lochner is an anti-redistributivist case because the opinion of the Court says so in its language about a “labor law, pure and simple” — that is, a law to favor “Labor” at the expense of “Capital” as these terms were widely used at the time.  Explicit anti-distributivist language also appears on the surface of the Court’s opinion in  Coppage v. Kansas in which the Lochner-era Court condemned legislative efforts to level “inequalities of fortune.”  The Court was willing to allow all sorts of limitations on freedom of contract — safety regulations based on paternalism, other regulations based purely on moral objections to various contracts (such as prostitution contracts), etc.  The idea was not libertarianism pure and simple.  A key factor in several of the most objectionable cases was simply the idea that redistributivism was an improper government purpose.  You say that in my earlier work my “citation was to a famous, well-cited article by Cass Sunstein, Lochner’s Legacy.”  Not quite.  I cited to three works.  Here is an endnote from my prequel, America’s Constitution: A Biography:


In addition to Lochner itself, see 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 what it’s worth, my reading of Lochner is the orthodox one.  For similar readings, 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; Cass R. Sunstein, Lochner ‘s Legacy, Columbia LR 87 (1987): 873; Jed Rubenfeld, The Anti-Antidiscrimination Agenda, Yale LJ 111(2002): 1114.


Precisely because I saw your work on Sunstein, and Sunstein’s response to your work, I omitted Sunstein in my new book passage, which reads as follows:


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.


So I agree with you that your book has — in your words – “rather thin gruel for rebutting a thesis that has been widely accepted among legal academics.”  And the problem is not solved because you elsewhere addressed Sunstein directly.  You needed to address in your book itself, or in work cited in your book, Tribe, Rubenfeld, Amar and others.  And most important of all, you needed to deal with the language of the cases themselves cited by us.  And you also needed to figure out exactly what you were trying to prove.  The title “Rehabilitating Lochner” is a quite misleading one, if all you mean to say is that “Lochner, though wrongly decided, was at least plausible” or that “Lochner, though wrongly decided, was part of a series of cases not all of which are terrible.”  The title rather clearly implies the correctness of  Lochner, yet your book itself (which I do not have in hand as I write this post) slips and slides around and never comes to grips with the central objection to Lochner by folks like me, Tribe, and Rubenfeld.


As for Ilya.  You need to read my new book — ideally before you keep digging deeper holes for yourself.  Some of what you say is in your latest post is  — once again — demonstrably  wrong.  And some of what you say is right, but frankly I said it first and said it quite clearly in my book (and in previous work), and it does not contradict what I said in my post.

Your new demonstrable errors:

  1. You are still conflating Section 1 and Section 2.  Section 1 has the equal protection clause.  But you say “Amar’s approach also renders much of Section 2 of the Amendment superfluous. If Section 1 already bans racial and other status discrimination by state governments, there would be no need for Section 2′s Equal Protection Clause, which bans state denial of ‘equal protection of the laws.’”   And I think there are other passages in your garbled post that continue to say “Section 2″ when you mean “Section 1″ – and perhaps vice versa.
  2. You somehow miss the fact that in many books and articles I have explained that the equality promised by Section 1 applied to civil rights, not political rights; so nothing in Section 1 rightly read implied black suffrage or woman suffrage.
  3. You say: “The drafters of the Fourteenth Amendment also assumed that granting citizenship to African-Americans did not automatically entitle them to equal civil or political rights.”  Wrong.  Equal citizenship was all about equal civil rights.  That is the whole point of the Civil Rights Act of 1866.  But equal civil rights did not entail equal political rights such as voting, jury service, military service, and officeholding, as I have explained in great detail in earlier works and in my new book.
  4. The Fourteenth Amendment clause that most closely corresponds to the Civil Rights Act is the citizenship clause, not the equal protection clause.  Equal protection applies to all “persons” whether citizens or not, whereas the citizenship language of the CRA and Section 1 is about . . . citizens.
  5. Precisely because of point 4, the equal protection clause is not redundant or superfluous, as it applies more broadly to aliens who are not citizens.
  6. Not all redundancies are problematic, as I have explained in several books and articles.  See especially Akhil Reed Amar, Constitutional Redundancies and Clarifying Clauses, 33 Val. U. L. Rev. 1 (1998).


Ilya, there are several other goofs in your post, but I have to run now.  Please take a good look at the new book; once you have done so, of course you should feel free to have at me, if you feel I have erred.  Hugs to both you and David.  It is fun to be talking to you guys once again — it brings back fond memories.