Ian Millhiser of Think Progress on Paul and Lochner

Attorney Ian Millhiser of the “liberal” Center for American Progress is quite agitated by Sen Paul’s speech yesterday, and not because he is concerned about potential abuses of executive authority. Rather, it’s because Paul had the temerity to refer favorably to Lochner. This provoked Millhiser’s response (h/t Alex Tabarrok), which is full of disingenuous statements:

Even Robert Bork, the failed, right-wing Supreme Court nominee who claimed women ‘aren’t discriminated against anymore’, called Lochner an ‘abomination’ that ‘lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.'” Surely Millhiser is aware that (a) Bork’s basic outlook on constitutional law was majoritarian; (b) this perspective was inherited from pre-Brown Progressivism; (c) Bork was, like his Progressive forebears, especially disgusted by an invocation of the due process clauses for substantive purposes; (d) the so-called “right-wing” today contains majoritarian conservatives, natural rights libertarians, and everything in between; and (e) the supposed Bork remark re women (I haven’t researched it) is just a cheap shot that had nothing to do with anything.

In fact, and as I assume Millhiser knows, Bork is actually among the last people you’d ever expect to be favorably inclined to Lochner. Which is precisely why, to address another issue Millhiser raises, Lochner may have something to do with drone strikes: a consistent majoritarian is likely to be, well, consistent, and therefore think that any constraints on executive power have to come from the political process, not from the Constitution. And a consistent constitutionalist is likely to be consistent as well. One can argue that by reading certain rights out of the due process clause, and thus out of the Constitution, the left has tipped the balance toward the majoritarian side, which makes it more, not less, difficult to defend civil liberties. I’m not sure I fully endorse that line of causal reasoning, but there’s nothing especially mysterious about it.

Not every workplace law was struck down during the so-called Lochner Era — the justices of that era sometimes valued sexism more than they valued exploiting workers, for example.” As Millhiser is no doubt aware, the Supreme Court upheld the vast majority of labor laws that came before it during the so-called Lochner era, including every maximum hours law other than the one at issue in Lochner. Most of these laws had nothing to do with women.

Moreover, as I document in great detail in Rehabilitating Lochner, the defense of sexist protective laws for women in that era ultimately came primarily from Progressives who opposed liberty of contract more generally, and opposition came primarily from those who generally supported liberty of contract. The only case to explicitly defend women’s right to equality in employment law until the 1960s was Adkins v. Children’s Hospital, a liberty of contract case much scorned by Progressives of the 1920s, and by the separate group of self-described Progressives today (who inaccurately assume that the Court’s invocation of women’s rights was disingenuous).

“In essence, Lochner established that any law that limits any contract between an employer and an employee is constitutionally suspect. If desperation forces someone to agree to work 18 hours a day, seven days a week, for a dollar a day in a factory filled with toxic air, then courts must treat that law with heavy skepticism.” No, health laws were clearly within the police power, and the “toxic air” part would have been easily sufficient to justify a regulation even without the hours issue.

“Paul’s speech also includes a somewhat rambling attempt to claim that Lochner helped ‘end Jim Crow,’ a claim that would cause anyone with even a rudimentary understanding of civil rights history to scratch their head.” Paul, as Millhiser acknowledges in his link, was referring to Buchanan v. Warley. You can read my short essay on Buchanan here, but for these purposes I think it’s sufficient to note that W.E.B. Du Bois credited Buchanan with “the breaking the backbone of segregation,” and that Judge Leon Higginbotham, a historian of law and racism, stated that “Buchanan was of profound importance in applying a brake to decelerate what would have been run-away racism in the United States.” While there are certainly others who have denigrated Buchanan’s importance (or more often ignored it because it doesn’t fit the traditional narrative of the reactionary Lochner era Court), Paul was hardly making some wild, idiosyncratic claim.