The Volokh Conspiracy

In 1917, the Supreme Court decided Buchanan v. Warley, holding that it was unconstitutional to ban blacks from buying property on blocks where mostly whites resided, and vice versa. Buchanan was, in my opinion, a very important case, but it has mostly languished in obscurity.

Last week, however, Senator Rand Paul talked about Buchanan on the Senate floor during his filibuster, sparking some curiosity about the case. I therefore decided it would be useful to post my 1998 Vanderbilt Law Review article on the case, which I believe is the most extensive existing treatment of Buchanan. Not surprisingly, I wouldn’t write the article precisely the same way now as I did then, and some of those changes are reflected in a later piece I co-authored with Ilya Somin for the Yale Law Journal and in my discussion of Buchanan in Rehabilitating Lochner. Still, if you’re curious about the case, the Vanderbilt article is very informative and would be the best place to start.

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.

Embedding the video isn’t working, so here’s a link to the relevant remarks (courtesy of Breitbart.com).

I haven’t had a chance to blog about this, but Sen. Paul and everyone else who complain that defining “due process” for a drone strike as review within the executive branch is completely contrary to what due process has meant throughout American history are correct, and it’s astounding (or maybe all too predictable) that so many critics of Bush Administration policies have been silent about this. UPDATE: Here’s the key point, courtesy of co-blogger Nick Rosenkranz: “As a matter of grammar and structure, the Due Process Clause … is, at least at its core, a conditional check on executive power …. The central function of the clause is to create a check on such deprivations …. Here the check is generally judicial. Due process generally cannot be purely intra-executive …. All executive power is vested in a single person, and so an intra-executive check on executive power is not really any check at all.”

In West Coast Hotel v. Parrish (1937), the Supreme Court upheld  a minimum wage law for women, reversing two earlier contrary precedents.  West Coast Hotel is often seen as the end of the so-called “Lochner era.”  Some conservatives celebrate West Coast Hotel, not simply as a victory against “judicial activism,” but because the Court purportedly restored the original meaning of the Due Process Clause of the Fourteenth Amendment that had been perverted by proponents of the liberty of contract doctrine.

As I pointed out in Rehabilitating Lochner, the irony of the conservative originalist critique of Lochner is that proponents of liberty of contract were themselves originalists, trying to adhere to what they saw as the constitutional understandings of the Fourteenth Amendment’s Framers regarding individual liberty and the scope of the police power.  Originalist sentiments expressed by proponents of liberty of contract sometimes sound quite modern.  Consider Justice Sutherland’s dissent in West Coast Hotel v. Parrish: “to say … that the words of the Constitution mean today what they did not mean when written—that is, that they do not apply to a situation now to which they would have applied then—is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.” I go on to note that more often, the early twentieth century version of originalism differed in significant ways from modern conservative originalism, and was generally neither well-theorized nor well-explained by its judicial adherents, but it was originalism nevertheless. Liberty of Contract’s Progressive opponents, by contrast, were explicitly anti-originalist and pioneered the idea of the “Living Constitution.”

Distinguished University of Virginia legal historian G. Edward White makes a related point in the latest issue of the Yale Law Journal Online. He argues that the majority opinion in West Coast Hotel represents the forces of Living Constitutionalism while the dissent relies on originalism: “West Coast Hotel is one of the early landmark cases of another narrative of twentieth- and twenty-first-century constitutional history, one characterized by a debate about whether the Constitution adapts to change or remains an embodiment of foundational principles. In that narrative, Chief Justice Hughes’s exploration of the changing context of judicial decisionmaking represents living Constitutionalism, and Justice Sutherland’s insistence that “the words of the Constitution mean today what they . . . mean[t] when written” is an example of originalism. White’s essay is short, and, if this sort of thing interests you, well worth reading.

I’m busy today teaching two classes, but I can’t resist a quick response to Akhil’s rejoinder.

First, while I have a great deal of respect for Jed Rubenfeld and Laurence Tribe, I don’t find their adoption of the “Lochner as redistribution” thesis terribly compelling.
Professor Tribe’s 1972 article adopts a surprisingly sophisticated understanding of Lochner–surprising only because Lochner scholarship was still in its infancy at that time. But Tribe, by necessity, didn’t have access to the wave of scholarship that has been published since, mostly by Ph.D. historians, who try to avoid the normative concerns that typically animate law professors. Beyond my own work, this literature includes, just for example, David Mayer, Liberty of Contract (2011); Mark Warren Bailey, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860-1910 (2004); Barry Cushman, Rethinking the New Deal Court (1998); James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller: 1888-1910 (1995);Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993); Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (1992); William E. Nelson, The Fourteenth Amendment (1988); Michael J. Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s (2000); G. Edward White, The Constitution and the New Deal (2000); Charles W. McCurdy, The Roots of “Liberty of Contract” Reconsidered: Major Premises in the Law of Employment, 1867-1937, 1984 Sup. Ct. Hist. Soc’y Y.B. 20; Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 L. & Hist. Rev. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L Rev. 1 (1991); and Barry Cushman, Some Varieties and Vicissitudes of Lochnerism, 85 B. U. L. Rev. 881 (2005).

Rubenfeld’s 2002 article, meanwhile, cites none of this literature, and indeed nothing at all to support his point of view beyond a couple of leading cases. This reflects something of a culture clash between historians, including historians who work at law schools, and constitutional theorists. The former engage in serious historical investigation to try to discover the underlying intellectual and social forces that led the Supreme Court to decide cases as it did. This involves both reading a very broad range of cases, and also secondary materials. Law professors, by contrast, tend to read a few leading cases from an era–like Lochner, Coppage v. Kansas, and Adkins v. Children’s Hospital–and then draw broad conclusions about what was wrong (or right) with the Court’s jurisprudence. (Sunstein’s famous article on Lochner, for example, cited fewer than a dozen cases.) Although my only degree in history is my undergrad degree, I side with the historians on this. To put it another way, I’m less interested in using cases to illustrate theoretical points, and more interested in getting the history right.

Akhil has done some great historical work, so I’d love to see him more deeply engage with the vast historical literature on Lochner, rather than cite theorists like Tribe and Rubenfeld. While law professors love to cite (and to my mind, often misinterpret) cases like Lochner and Coppage, the picture necessarily becomes far more nuanced when one considers the more obscure cases of the era. On the issue of whether the pre-New Deal Court was motivated by hostility to “redistributive” legislation, consider that the Court never interfered with welfare-type legislation, widows’ pensions, inheritance taxes, and the like. The Court also generally upheld antitrust laws, which were among the most blatantly redistributive of laws, as they were seen as aiding small businesses at the expense of large corporations.

Even if one limits things to the category to labor regulations, as early as 1898, the Court made it clear that states could regulate employers to alleviate inequalities in bargaining power. In Holden v. Hardy, Justice Brown (importantly, a member of the Lochner majority), wrote for a 7-2 majority that upheld a maximum hours law for miners that “the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting.” The “proprietors lay down the rules, and the laborers are practically constrained to obey them.” In such cases, Brown wrote, “the legislature may properly interpose its authority.”

Not surprisingly, the Court consistently upheld workers’ compensation legislation, one of the more radical Progressive reforms of the days. These included laws that required employers to pay into a state workers’ compensation fund instead of simply paying for their own employees’ injuries; permitted an employee’s recovery for disfigurement with no loss in earnings ability; required employers to pay into a state workers’ compensation fund when an employee without heirs died on the job; required that compensation for a worker’s death be paid to the decedent’s relatives who were citizens of, and lived in, another country; required payment of compensation to workers injured on their way to work; and restricted the fees attorneys could charge in workers’ compensation cases. The Court also upheld the federal Jones Act and the federal Longshoremen’s and Harbor Workers’ Compensation Act.

The Court also upheld laws forbidding the employment of children below the age of sixteen in certain hazardous occupations; regulating the hours of labor of women and of men in industrial occupations when overtime work was permitted; regulating the width of entries to coal mines; requiring coal mines to maintain wash houses for their employees at the request of twenty or more workers; making mining companies liable for their willful failure to furnish a reasonably safe place for workers; requiring that coal miners’ pay be based on car loads of coal they produced; requiring railroads and mining companies to pay their employees in cash; requiring railroads to pay wages due an employee on discharge regardless of contrary contractual agreement; requiring coal produced by miners be weighed for payment purposes before it passes over a screen; giving preferences to citizens in public works employment; regulating the wages and hours of workers employed on public works projects; the payment of seamen’s wages in advance; regulating the timing of wages paid to employees in specified industries; and mandating an eight-hour day for federal workers or employees of federal contractors. The vast majority of these decisions were unanimous, and, among the exceptions, almost all of the dissenting votes came from Justices Brewer and Peckham, the only two Justices of the time who more or less consistently voted to restrain government power. Moreover, the vast majority of laws obviously geared to worker and public health and safety, including bakery regulations that accompanied the hours law at issue in Lochner, were so obviously constitutionally unobjectionable that they never resulted in constitutional challenge.

The Court did invalidate one specific category of laws that might be considered redistributive: laws that it believed had no purpose other than to aid labor unions. For example, the Court twice invalidated laws that prohibited employers from forbidding their employees to join labor unions. Not surprisingly, this raised the ire of leading Progressive lawyers of the day who strongly favored unions. (Herbert Croley, friend and publisher of Learned Hand, Louis Brandeis, and Felix Frankfurter, wrote that “nonunion industrial laborer . . . should be rejected as emphatically if not as ruthlessly as the gardener rejects the weeds in his garden for the benefit of fruit and flower-bearing plants.”)

But the conflict between Progressive jurists and the Supreme Court, then, was not over whether inequality of bargaining power could justify government regulation of labor markets, but over the appropriate remedy. The Court’s critics advocated union-led social democracy in place of a regime of general contractual freedom. A majority of Justices, by contrast, approved of ameliorative legislation directly addressing what they saw as oppressive corporate labor practices, but believed that preserving a general presumption of liberty of contract was both constitutionally required and served workers’ interests (as Justice Pitney expressly argued in Coppage v. Kansas). They further believed that labor unions were monopolistic and potentially oppressive.

One can certainly argue that it wasn’t the Court’s place to take sides in such a pressing and controversial social issue, and one in which they had little real expertise. That, in fact, was the classic Progressive critique of the Court, since adopted by modern conservatives. But modern liberals are less enamored of that critique, because it could equally apply to the Court’s involvement in abortion or gay rights. It’s far more comfortable to claim that the Court was wrong because it opposed “redistribution,” which is no longer a serious constitutional controversy, than to acknowledge that the Justices were trying to preserve liberty as they understood it, which is at the heart of modern liberal constitutionalism.

None of this is to say that Lochner itself, or other liberty of contract cases, were correctly decided. But to have an informed debate about that, I think we need to know what the Court was actually doing. And that requires an immersion in the historical literature.

[I know this is long for a quick response. If I had more time, I would have written a shorter one.]

UPDATE: I should note that Tribe later took on the argument that the liberty of contract cases, like Roe, simply reflected the Court’s contemporary understanding of liberty. He wrote that “Lochner’s downfall did not represent a denigration of economic liberties but a recognition that such liberties were not meaningfully protected by the ‘free’ market” and that “the error of [the liberty of contract cases] lay not in judicial intervention to protect ‘liberty’ but in a misguided understanding of what liberty actually required....” Laurence H. Tribe, American Constitutional Law § 15-13, 769, 1374 (2d ed. 1988).

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?

Dale’s post below on Robert Delahunty’s claim that the end of slavery came at the cost of slaveholders’ freedom, and that likewise legally recognized same-sex marriage would come at the expense of the freedom of those who want to live in a society without such things, reminds me of the great Progressive legal and economic thinker, Robert Hale.

Hale was as responsible as anyone for putting the finals nails in the coffin of the American natural rights constitutional paradigm in favor of a “living constitution” and legal realism. In opposing any notion of “liberty of contract” in his famous article “Coercion and Distribution in a Supposedly Non Coercive State”, Hale claimed that trying to protect “liberty” under the constitution is meaningless because there is a fixed amount of liberty (or coercion) in any society, so giving one person “liberty” means “coercing” someone else who opposes the recognition of that liberty.

Hale was writing in the economic context, but as Professors Ian Ayres and Barry Cushman have pointed out, this can easily be applied in other contexts as well. Cushman puts it this way, re Meyer v. Nebraska, which was decided the same year that Hale’s article came out: “one might characterize a law prohibiting the teaching of German in elementary school as depriving A of the liberty to study German in school, while simultaneously endowing B with the liberty to study in a German-free school zone.”

From Hale it’s a short leap to Herbert Weschsler’s (Wechsler was a Progressive law student at Columbia in Hale’s heyday) infamous claim in the late 1950s that he could find no “neutral principle” that would lead him to conclude that public school segregation was unconstitutional:

But if the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant. Is this not the heart of the issue involved, a conflict in human claims of high dimension, not unlike many others that involve the highest freedoms – conflicts that Professor Sutherland has recently described. Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail? I should like to think there is, but I confess that I have not yet written the opinion.

So Delahunty’s argument has a long provenance; through the late 1950s it was prevalent on the legal left, as reflected in Wechsler’s article, but the next generation of liberals rejected such views on favor of the so-called “rights revolution.” Hale’s rights-skepticism now more often finds its home with right-wing rights-skeptics like Bork, Scalia (although his skepticism is somewhat fainthearted) and (apparently) Delahunty. But because he was a vigorous opponent of economic liberty, Hale is still celebrated by many on the left.

UPDATE: It’s also worth noting the commonalities between the arguments of Delahunty, Wechsler, and Howard Lee McBain, a Progressive professor and author of The Living Constitution (1927). In that book, McBain reacted to the Supreme Court’s refusal to countenance residential segregation ordinances by accusing the Court of destroying whites’ right to live in a segregated neighborhood.

The current issue of The New Yorker has an article by Jill Lepore on the history of the Supreme Court’s struggle for independence. The article talks too much about the varying quality for the Court’s chambers over the years, but is otherwise a good introduction to the topic, albeit from an implicitly liberal perspective.

The article does contain at least one whopper dubious assertion. After discussing the controversy over Lochner v. New York (with shout out to Rehabilitating Lochner, thanks!), Lepore writes, “In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent.”

This is not an especially well-constructed sentence, but the most natural meaning seems to be that because Hughes and Holmes were both champions of civil liberties, they often dissented together. Or perhaps Lepore meant that Holmes often voted in favor of civil liberties for whatever reason, and Hughes, as a champion of civil liberties, often joined him in dissent. Finally, given the context, Lepore may have meant that as a champion of civil liberties, Hughes naturally joined with Holmes in opposing liberty of contract.

None of these interpretations helps Lepore. For decades Holmes’s liberal acolytes and fans argued to the contrary, but it’s well-established at this point that he was no champion of civil liberties. Holmes did eventually become a defender of freedom of speech, but that didn’t occur until after Hughes quit the Court to run for president in 1916.

Between 1910 and 1916, the Supreme Court heard quite a few First Amendment cases, and unanimously ruled in favor of the government in all of them. Beyond that, using the term “civil liberties” broadly, the two most important such cases were Coppage v. Kansas, a yellow dog contract case which could be interpreted as involving the “right to join a labor union,” and McCabe v. Atchison, Topeka & Santa Fe Railway, raising the question of whether a train company under ICC jurisdiction that provided first class cars for whites must provide them for blacks as well.

The Holmes-Hughes record is mixed. Holmes and Hughes both dissented in Coppage, though Hughes refused to join Holmes’s dissent denying that a right to liberty of contract exists. He instead joined a more tempered dissent by Justice Day.

In McCabe, Hughes wrote the majority opinion holding that African Americans are entitled to the same quality of accommodations as whites, while Holmes dissented. Before the opinions were released, the Justices exchanged terse memos. Holmes explained that he thought that requiring train companies to supply first-class cars to African Americans only when it was economically profitable to do so constituted “logically exact” equality. Hughes responded that to the contrary it was “a bald, wholly unjustified discrimination against a passenger solely on account of race.”

Finally, supporting judicial protection of civil liberties in the early twentieth century did not imply that one opposed a constitutional right to liberty of contract. Indeed, as I’ve elaborated upon in detail, supporters of liberty of contract tended to support broader protection of other liberty rights, and opponents of liberty of contract tended to be majoritarians. Hughes himself endorsed the Court’s due process jurisprudence (while being vague on particulars) when the Court was under attack by Progressive Party candidate Robert LaFollette in 1924. Charles Evans Hughes, President Hughes Responds for the Association, 10 A.B.A. J. 567 (1924).

UPDATE: Hughes did join Holmes in dissent in three cases involving appeals from criminal defendants, including the infamous Leo Frank case (the only one that raised a constitutional as opposed to evidentiary issue). On the other hand, Hughes wrote the majority opinion in Bailey v. Alabama, protecting African Americans from involuntary servitude, and Holmes dissented. Holmes reluctantly concurred in Reynolds v. United States, involving similar issues. Generously, we’re up to four civil liberties cases in six years in which Holmes and Hughes joined in dissent, and two in which Holmes dissented from Hughes’s opinion defending civil liberties, with Holmes and Hughes disagreeing on (a) the existence of a right to liberty of contract and (b) whether the Supreme Court should protect the rights of African Americans to any significant extent.

“Whopper” was too strong a word, but the New Yorker’s vaunted fact-checkers should have flagged the sentence in question. Holmes and Hughes were hardly peas in a pod. Some quick fact-checking would have revealed that of the fifty-five or so Supreme Court opinions that attracted dissents during Hughes’s (first) time on the Court, Hughes and Holmes dissented together seven times, Hughes dissented without Holmes nine times, Holmes dissented without Hughes five times, and they endorsed separate dissents in Coppage.

FURTHER UPDATE: Also see this December piece from the distinguished legal historian Robert Gordon, in which he writes: “But as liberals they were also committed to free speech and civil liberties, which their heroes Holmes and Brandeis had believed that constitutional judges should protect.” The myth of Holmes as civil libertarian beyond his free speech dissents dies hard. Also, I should note the possibility that Lepore didn’t mean anything by the reference to Hughes’ support for civil liberties, but rather that this was just a garbled sentence.

Finally, I want to note again that overall Lepore’s piece is a good introduction to the topic, my objection to the sentence at issue notwithstanding.

Attorney Rob Weiner has a guest post over at Balkinization decrying challenges to the ACA. Weiner claims that the challenges reflect nostalgia for a bygone era and discredited doctrines. I disagree for reasons that have been repeated many times on this blog (essentially, the challengers are attacking a broad new and novel expansion of federal power, not asking the Court to revive old doctrines).

Instead of rehashing those arguments I wanted to note an irony in Weiner’s post, one that reflects the Whiggish (and incorrect) views that constitutional law has progressed in a linear fashion from the reactionary “bad old days” to more enlightened doctrines.

Toward the beginning of his piece, Weiner writes:

It was the same freedom of contract that the Court in Adkins v. Children’s Hospital invoked to shield employers from the minimum wage law. But that was in 1923. In the modern era — generously, the last 75 years — the Supreme Court repudiated these cases and gave Congress broad deference in the realm of economic regulation. Starting in 1937, the Court in West Coast Hotel Co. v. Parrish ended the primacy of contract rights. “What is this freedom?,” Chief Justice Hughes asked there. “The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. . . . Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.”

Adkins and Parrish both involved minimum wage laws that applied only to women. This was so for a variety of reasons, but most importantly various groups that supported such laws–male-only trade unions, “maternalists” and eugenicists who believed that women’s place was in the home, foes of immigration who believed that the foreign-born were especially like to encourage their wives to work, “family wage” supporters who believed that women workers drove down men’s wages, among others–explicitly sought to exclude women from the workplace, and thought minimum wages were a good way to do so. Male-only labor unions, for example, broadly opposed minimum wage laws that applied to men, but typically supported them for women because they wanted to eliminate labor market competition.

None of this is a secret to those familiar with the history. The leading supporter of women’s rights on the Court, Justice George Sutherland (a leading supporter of women’s suffrage in the 1910s, and an adviser to the drafters of the ERA), wrote the majority opinion in Adkins and the dissent in Parrish. Meanwhile, Florence Kelley, the great early twentienth century advocate for “protective” laws for women, wrote in defense of such laws, in language that could have been appropriated by Phyllis Schlafly in the 1970s in her campaign against the ERA, “the cry Equality, Equality, where Nature has created inequality, is as stupid and as deadly as the cry Peace, Peace where there is no Peace.”

This history eludes Weiner, who later opines that in “the supposedly good old days” when the courts protected liberty of contract to some degree, “Minorities could not get a fair shake. Women, for the most part, did not even try.” In fact, women did often try, but they were often stifled by “Progressive” laws banning them from night work, restricting their hours, restricting them from “dangerous” or “immoral” jobs like bartending (“Michigan could, beyond question, forbid all women from working behind a bar,” wrote Justice Felix Frankfurter in 1948), and imposing minimum wages on them while exempting their male competitors.

History, in short, did not move in a straight line from reactionary opposition to women’s rights in the 1920s to enlightened liberal support for such rights in the modern era. Rather, cases like Parrish represented a significant setback for women’s rights, and women only started to reclaim the constitutional ground they lost in the 1930s and 40s decades later.

Not surprisingly, the history of “minorities”, “workers” and other groups referenced by Weiner is also far more complex than the Whiggish story would suggest.

The great irony of Weiner’s post is that while he accuses the ACA’s opponents of misunderstanding history, his hostility to the ACA challenges seems based on his misapprehension of history–if one accepts the premise that nothing good happened in constitutional law until the “Progressives” took over the Supreme Court in the 1930s, and nothing bad came from the Progressives thereafter (maybe except for Korematsu) then it’s understandable that one would be suspicious of any argument that even remotely hints at doctrines that were prevalent before then. But if one takes a more sober look at constitutional history, it turns out that there has been no linear progression of enlightenment, and the side Weiner identifies with historically did not have a monopoly on virtue. And once that is accepted, it becomes a lot easier to consider the constitutional arguments for and against the ACA on their merits, without invoking the ghosts of the past.

Supreme Court reporter Robert Barnes has a piece today about the role of Lochner v. New York in the ACA litigation. The Solicitor General told the Court at oral argument that invalidating the ACA would bring back Lochner, and last week President Obama said, “A law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner.”

Of course, this is lots of fun for me, as my formerly obscure (to my relatives and friends) interest in Lochner now has some popular currency. (It shouldn’t hurt book sales, either).

But I wonder if raising Lochner is really helpful to the ACA’s proponents. First, liberals and conservatives mean two different things when they criticize “Lochner“. Barnes quotes me as follows:

“Liberals see the court as unduly interfering with progressive legislation meant to help people who needed it,” Bernstein said. “Conservatives draw a different lesson: They see it as a symbol of judicial activism,” creating a right beyond those enumerated in the Constitution.

The SG and president used Lochner in the former sense, but that doesn’t seem likely to sway the Court’s conservatives. Indeed, CJ Roberts jumped all over the SG when he suggested that the ACA challenge resembled Lochner: “It seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits on the federal power, as opposed to limits on the states, which was the issue in Lochner.” In other words, this is an enumerated powers case, not an unenumerated rights case, and therefore Lochner is irrelevant.

Moreover, to the extent that Justice Kennedy is likely to be the swing vote, he seems perhaps the least likely Justice to be swayed by accusations of “Lochnering.” Kennedy is, I think, the only Justice who has had dissenters from both left and right accuse him of repeating Lochner’s mistakes. Just last term, in Sorrell v. Vermont, Justice Breyer twice raised Lochner in his dissent to Justice Kennedy’s majority opinion. Back in 2003, Justice Scalia, dissenting from Kennedy’s opinion in Lawrence v. Texas, suggested that the Fourteenth Amendment no more protects the right to engage in homosexual sodomy than it does the right to “work[] more than 60 hours per week in a bakery” (alluding to the facts of Lochner).

Kennedy is also the least shy “conservative” Justice about relying on the Fourteenth Amendment to protect economic rights, the underlying “sin” of Lochner for both left and right. Unlike Thomas and Scalia, he happily joins opinions invalidating state punitive awards as violating the due process clause. And then there’s his lone opinion in Eastern Enterprises v. Apfel, in which he wrote, “Although we have been hesitant to subject economic legislation to due process scrutiny as a general matter, the Court has given careful consideration to due process challenges to legislation with retroactive effects.” He then proceeded to argue that the legislation in question fails a due process analysis.

So I’m not sure what the strategy of raising Lochner is supposed to accomplish, but it doesn’t seem well designed to get the government five votes in the ACA litigation.

President Obama said the following today when asked about the constitutional litigation over the ACA:

Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

In turn, James Taranto took Obama to task for wildly misciting Lochner:

In fact, Lochner–about which more in a moment–was decided in 1905. Thirty years later, after the New Deal had begun, the high court unanimously struck down one of its main components, the National Industrial Recovery Act, as exceeding Congress’s authority under the Interstate Commerce Clause. The case was A.L.A. Schechter Poultry Corp. v. U.S. (1935).

It is true that in subsequent New Deal cases, the court vastly expanded Congress’s power to regulate “interstate commerce,” although it has never done what the administration asks it to do now, namely authorize Congress to force individuals to engage in commerce. Obama seems to have been trying to make the accurate observation that since the ’30s the court has not struck down a federal law that applies to economic activity on the ground that it exceeds Congress’s Commerce Clause authority.

But in citing Lochner, the president showed himself to be in over his head.

The full name of the case, Lochner v. New York, should be a sufficient tip-off. In Lochner the court invalidated a state labor regulation on the ground that it violated the “liberty of contract,” which the court held was an aspect of liberty protected by the 14th Amendment’s Due Process Clause....

Lochner, which was effectively reversed in a series of post-New Deal decisions, did not involve a federal law–contrary to the president’s claim–and thus had nothing to do with the Commerce Clause, which concerns only the powers of Congress.

When a reader sent me these links, my initial inclination was to defend the president. I wrote to my correspondent, “I think Obama probably meant “Lochner” as in “the Lochner era”, or was using a shorthand, as liberals often do, of “Lochner” as the group of cases in which the Court invalidated economic regulations before the New Deal, regardless of the clause.”

But then I remembered the last time President Obama expressed his views on Lochner v. New York, when he was still a Senator from Illinois, criticizing D.C. Circuit nominee Janice Brown:

For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court. In the Lochner case, and in a whole series of cases prior to Lochner being overturned, the Supreme Court consistently overturned basic measures like minimum wage laws, child labor safety laws, and rights to organize, deeming those laws as somehow violating a constitutional right to private property. The basic argument in Lochner was you can’t regulate the free market because it is going to constrain people’s use of their private property. Keep in mind that that same judicial philosophy was the underpinning of Dred Scott, the ruling that overturned the Missouri Compromise and said that it was unconstitutional to forbid slavery from being imported into the free States.

That same judicial philosophy essentially stopped every effort by Franklin Delano Roosevelt to overcome the enormous distress and suffering that occurred during the Great Depression. It was ultimately overturned because Justices, such as Oliver Wendell Holmes, realized that if Supreme Court Justices can overturn any economic regulation — Social Security, minimum wage, basic zoning laws, and so forth — then they would be usurping the rights of a democratically constituted legislature. Suddenly they would be elevated to the point where they were in charge as opposed to democracy being in charge.

Back in 2011, I annotated nine separate misstatements in these two paragraphs. So maybe Taranto’s correct, and the president should stick to politicking and stay away from constitutional history. Obama could have avoided all of this by heeding my op-ed noting that Lochner has nothing to do with the health care litigation, except as crude propagandistic rhetoric [update: as in this Huff Post by Prof. Jamin Raskin, which has a breathtakingly ignorant (willful or not?) paragraph about Lochner and the liberty of contract doctrine]. (Not to suggest, of course, that I think the president reads my op-eds!)

Two issues ago, the Claremont Review of Books published Richard Epstein’s review of my book, Rehabilitating Lochner. In the next issue, two conservative readers criticized Epstein’s review for endorsing Lochner. Claremont asked Epstein and me to respond. Claremont has now posted the letters to the editor and the responses here.

My response focuses not on whether Lochner was right or wrong (I take no position on the issue), but on taking issue with some of the statements and assumptions made in the letters–statements and assumptions that reflect longstanding conservative propaganda points in debates over the Fourteenth Amendment, but that rely on myths inherited from Progressive jurists.

I conclude that

there are quite reasonable arguments that liberty of contract, per se, is not protected by the Due Process Clause. Even if it is so protected, one can reasonably argue that the Lochner Court should have followed Justice Harlan’s dissent and exhibited greater deference to the judgment of the New York legislature. For conservative constitutionalists to make such determinations, however, requires a careful study of the relevant historical and legal materials free from the baggage of the tendentious, politically motivated accounts of Progressives, New Dealers, and their successors on the Left and, surprisingly, the Right.

Claremont’s website doesn’t have a comment feature, but you can contribute to the debate in the comments below.

Jed Purdy has posted an interesting (and extremely polite) response to my critique of his article on the Roberts Court and Lochner here.

Well, yesterday was certainly a good day for one of my least favorite American politicians of the twentieth century, Theodore Roosevelt, who combined gross economic ignorance with an almost adolescent jingoism. GOP frontrunner (!) Newt Gingrich has (once again) declared himself to be a “Theodore Roosevelt Republican” (though disclaiming the more socialistic Roosevelt of his post-presidential career) while President Obama, in a much ballyhooed speech, lavished praise on post-presidential Teddy for recognizing the need to add many layers of regulation to the free market.

But the main topic of this post is President Obama’s acceptance and elaboration of Progressive mythology about pre-Progressive America, the America of the late nineteenth and early twentieth century, before a wave of Progressive and World War I inspired regulation significantly increased the role of government in American economic life.

Here’s Obama:

You see, this isn’t the first time America has faced this choice. At the turn of the last century, when a nation of farmers was transitioning to become the world’s industrial giant, we had to decide: would we settle for a country where most of the new railroads and factories were controlled by a few giant monopolies that kept prices high and wages low? Would we allow our citizens and even our children to work ungodly hours in conditions that were unsafe and unsanitary?

This line of thought goes back to the Progressive era itself. As I point out in Rehabilitating Lochner: “Progressives were convinced workers’ living standards were falling, and were in constant danger thanks to unregulated immigration, unregulated labor markets, and a paucity of strong labor unions. Supporters of liberty of contract, by contrast, believed that workers’ lot, though often unpleasant, was gradually improving thanks to the American system of contractual freedom.”

Contrary to the implications of Obama’s speech, the latter group seems to have had the better of the argument. Despite massive immigration during this period and despite (or maybe because of) the lack of labor regulation and low unionization, best estimates are that real wages in manufacturing in the U.S. increased almost 40% between 1890 and 1914. Lawrence H. Officer, Two Centuries of Compensation for U.S. Production Workers in Manufacturing (2009); Albert Rees, Real Wages in Manufacturing 1890-1914 (1961). [Update: I don't have statistics handy, but working hours were going down without government intervention--for example, few bakers, the subject of the 1895 ten-hour a day law invalidated in Lochner, worked more than ten hours by 1910--and child labor was declining rapidly outside the impoverished Deep South.]

Oddly enough, Obama also praises Roosevelt for supporting a minimum wage for women. Chapter 4 of Rehabilitating Lochner describes the impetus for such laws, and much of the relevant the information in that chapter can be found in this paper published in Law and Contemporary Problems. The history is too rich to give an adequate summary here. Let’s just say that the history of such laws is not pretty. The laws’ primary supporters included male-only labor unions that wanted to keep women out of the workplace–women-only minimum wage laws almost never passed without strong from unions that typically opposed minimum wage laws for men; eugenicists who wanted women to stay home and take care of their children; bigots who thought that only the lower order of men (including Eastern European immigrants) would allow their women to work for wages; moralists who believed that low-wage women were susceptible to vice and should therefore stay out of the workforce; and economists who believed that, as Felix Frankfurter summarized in his brief in Adkins v. Children’s Hospital, women who wanted to work but could not command a government-imposed minimum wage were “semi-employable” or “unemployable” workers who should “accept the status of a defective to be segregated for special treatment as a dependent.”

My latest article in the Green Bag (link will open seven-page PDF file):

(1) First, social reform was not in nearly as much danger from Lochner as the standard story suggests....

(2) The supposed simple-minded formalism of late nineteenth and early twentieth century judges has been called into serious question by recent scholarship....

(3) Brandeis’s Muller brief was not as original as his admirers have suggested....

(4) Brandeis’s brief was not as bold as often portrayed, because Oregon’s attorney general filed a traditional brief focusing on the relevant legal precedents....

(5) Brandeis’s brief, rather than being a social science masterpiece, consisted largely of a “hodgepodge” of reports of factory or health inspectors, testimony before legislative investigating committees, statutes, quotes from medical texts, among other miscellany. Some of the “scientific” arguments presented in the brief are nonsensical, even given the state of medical knowledge at the time....

(6) Brandeis’s brief likely did not influence a single vote on the Supreme Court....

(7) While Brandeis Briefs quickly became commonplace in constitutional litigation over social reform, such briefs did not have any clear significant effect on the outcome of Progressive-era cases....

Bonus myth: Despite many assertions to the contrary, Brandeis evinced little interest in women’s legal equality, and was at best a very tepid supporter of women’s rights.