Archive | Rehabilitating Lochner

New Book: Toward an American Conservatism: Constitutional Conservatism during the Progressive Era

I contributed one chapter to this collection of essays. Not surprisingly, I wrote about Lochner and liberty of contract jurisprudence, and its uneasy relationship to constitutional conservatism.

It’s an excellent book on an understudied topic. The one major impression I get from studying this general topic is that while the Progressives knew to a large extent where they wanted to take the country and the Constitution, conservatives of the day didn’t have their own positive ideology, but were simply trying to preserve what they saw as traditional American values of federalism and individual liberty against the Progressive wave. Not surprisingly, they failed, just as the Burger Court and (especially) the (early) Rehnquist Court, products of a defensive conservatism with little positive agenda, failed to roll back the liberal tide.

Unfortunately, the book costs $82.00, so few readers are going to add it to their personal collections, at least until a paperback (hopefully) arrives. But if the subject matter interests you, you should check it out at your local academic library, and ask the librarian to order it if they don’t already have it.

UPDATE: Here is a Table of Contents:

Introduction: Johnathan O’Neill and Joseph Postell
1. Constitutional Conservatism During the Progressive Era: The National Association for Constitutional Government and Constitutional Review; Johnathan O’Neill
2. The Progressive Origins of Conservative Hostility to Lochner v. New York; David E. Bernstein
3. William Howard Taft and the Struggle for the Soul of the Constitution; Sidney M. Milkis
4. The Election of 1912 and the Origins of Constitutional Conservatism; William Schambra
5. William Howard Taft on America and the Philippines: Equality, Natural Rights, and Imperialism; John Grant
6. Civilization versus Modernity: The League of Nations in the Crisis of World Civilization; W. Taylor Reveley
7. ‘Roaring’ against Progressivism: Calvin Coolidge’s Principled Conservatism; [...]

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Ian Millhiser on Conservatism and the Judiciary

Over at ThinkProgress, Ian Millhiser has a piece on conservative and the judiciary that ranges over many decades and many topics. Unfortunately, much of it is very tendentious and sometimes just wrong. It’s too much to do a detailed critique, so I’ll be brief and limit myself to his general historical perspective. [DB: Sentences in original post deleted after colleagues pointed out that I likely misconstrued a poorly written sentence.]

Millhiser provides a rather standard progressive critique of constitutional history from the 1890s until today, with no cliche unrepeated, no matter how inaccurate. “Laissez faire Social Darwinism!” “Union busters”! “Judges stood with industrialists against their workers, with unreconstructed racists against African Americans, and with the wealthy against nearly any effort to diminish their fortunes.” Judges struck down child labor laws! And of course, “LOCHNER!” Regular readers of this blog will recognize that these assertions range from blatantly false to distinctly unnuanced. (Just for example on the unnuanced front, the Court invalidated federal child labor laws as beyond the Commerce and Taxing powers, but upheld state child labor laws which then spread to every state).

No matter, says Millhiser, at some point there were pleasant surprises as Justices appointed by FDR and beyond protected the rights of African Americans in cases like Brown v. Board of Education and “ushered in modern free speech doctrine,” moving the Court in a “progressive” direction.

Millhiser closes his article with a quotation from Learned Hand, who “offered a different assessment of how he should behave if he wishes to honor the framers’ commitment to freedom. ‘The spirit of liberty,’ said Hand, ‘is the spirit which is not too sure that it is right.’” The irony, which Millhiser apparently doesn’t appreciate, is that Hand opposed Brown and modern free speech doctrine (which he in [...]

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Posner on Lochner (UPDATED: Posner versus Posner?)

While I greatly admire Judge Richard Posner’s amazing corpus of work, I’ve noticed in recent pieces that he has a tendency to state propositions as indisputable, absolute truths when they are at least disputable, and sometimes flat wrong. Here is an example.

Posner writes in the California Law Review:

The majority opinion in Lochner is easily forgettable yet well worth rereading in this connection. I quote a typical paragraph:

It is manifest to us that the limitation of the hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff in error convicted, has no such direct relation to and no such substantial effect upon the health of the employé, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employé (all being men, sui juris), in a private business, not dangerous in any degree to morals or in any real and substantial degree, to the health of the employés. Under such circumstances the freedom of master and employé to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.

This is naked policy analysis; nothing in the Constitution, or in precedents that commanded respect, suggests that states can’t be allowed to place a ceiling on hours worked unless justified by a concern with workers’ health. The opinion, which I am tempted to quote in full, is so shallow that Holmes’s one-page dissent says everything that needs to be said to unmask any pretense that the majority was engaged in something that might be called legal analysis.[End


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Kens on Rehabilitating Lochner

Paul Kens, a professor of political science at Texas State University, is the author of Lochner v. New York: Economic Regulation on Trial. I described the book in 2011 as “The last major scholarly work on Lochner to propound the traditional view of Lochner–that its origins lie in ‘laissez faire Social Darwinism’ and that its consequences were almost uniformly bad–that has lost favor among historians and that Rehabilitating Lochner tries to discredit once and for all.” I added that “comparing and contrasting the two books would make a great assignment for a constitutional history seminar.”

Given that Kens’s book is the most prominent representative of the traditional perspective on Lochner that I set out to rebut, I was naturally apprehensive when I saw that Kens reviewed my book for H-Law. But as Dan Ernst pointed out on the legal history blog, Kens manages to disagree with some aspects of my work without being disagreeable, and, I would add, he also is pretty careful about only attributing things to me that I actually wrote, which I’ve found is often not the case with book reviewers. Interestingly, and in line with my 2011 post, Kens suggests the following: “I urge any interested reader to lay the two versions side by side, follow the references, and discover a version of the story that is closer to historical truth.” Amen. [...]

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Article on Buchanan v. Warley

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. [...]

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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. [...]

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Rand Paul on Lochner, Buchanan v. Warley, and Oliver Wendell Holmes

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

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.” [...]

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The Significance of West Coast Hotel v. Parrish: Originalism vs. Living Constitutionalism?

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 [...]

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Quick Response to Amar

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. [...]

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Amar on Lochner

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 [...]

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Echoes of Robert Hale

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


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How Did this Get Past The New Yorker’s Fact-Checkers?

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 [...]

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On Whiggish Constitutional History and the History of Women’s Constitutional Equality

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 [...]

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The Washington Post on Lochner and The ACA

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 [...]

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Obama on Lochner v. New York

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


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