Freeman

BOOK REVIEW

Rehabilitating Lochner

APRIL 26, 2012 by GEORGE C. LEEF

For nonlawyers, the “Lochner” in this book’s title refers to the Supreme Court’s 1905 decision in Lochner v. New York, which author David Bernstein of George Mason University Law School argues has been terribly misrepresented by “Progressive” intellectuals. Among lawyers the standard view of Lochner is that it was a perverse triumph of ideological judicial activism over a statute meant to protect workers. Bernstein shows that view to be mistaken, as his subtitle—“defending individual rights against Progressive reform”—indicates. Instead of being demonized, the Court’s decision should be extolled for its shielding of individual liberty against authoritarianism.

The case arose after the New York legislature enacted a law limiting the number of hours employees in the baking industry could work. Although the law was proclaimed to be a health and safety measure, Bernstein’s careful history makes plain that it was actually special-interest legislation intended to damage older, usually nonunion bakeries, where the employees often slept while bread was baking—hence their long days. Enforcement of the law could reduce competition for newer, often unionized bakeries, where bakers worked shorter shifts.

Justice Rufus Peckham’s majority opinion was based on an understanding of the Fourteenth Amendment, which protects the citizen’s fundamental liberty to contract his labor as he thinks best. That decision infuriated Progressive intellectuals, who thought that courts should never interfere with legislation intended to (as they saw matters) improve society. They, including Justice Oliver Wendell Holmes, who wrote a famous, often-quoted dissent, wanted to destroy the individualist, libertarian foundation of America and replace it with their vision of an expertly planned and controlled society. Thus whether judges thought a particular statute wise or not was beside the point; if elected representatives had legislated to make society more subject to governmental control, judges should not interfere with that presumptively beneficial trend.

Peckham’s decision was (and still is) denounced in shrill language claiming that it was motivated by hostility toward the working man and that the Court was merely siding with “business interests.” All that rhetoric was wrong, but it created the erroneous idea that any time a court overturned supposedly “protective” legislation, it was the equivalent of a gift to big business. The book makes it clear that those “business interests” often sought interventionist legislation and the “little guy” who was supposed to benefit from such legislative “protection” was actually harmed by it.

Bernstein carefully documents that subsequent decisions in the Lochner line consistently defended individuals against oppressive legislation, whether business was involved or not. For example, Lochner-inspired reasoning was behind decisions striking down state-mandated residential segregation and state attempts at forbidding parents from educating their children anywhere but in government schools. Bernstein’s research shows that the Progressive jurists often supported appallingly authoritarian measures that badly harmed individual workers and consumers, because they felt constrained to uphold them for the “greater good” of moving toward a properly regulated society.

The ultimate case in that regard is Buck v. Bell, in which a Court dominated by Progressives (in 1927) upheld state compulsory sterilization laws. In his majority opinion Holmes gloried in explaining the case for eugenics. Who did more damage—Lochner libertarians who said that people had to be left free to make their own contracts, or Holmesian Progressives who saw no reason to prevent government from forcibly sterilizing individuals for society’s imagined good?

When “liberal” justices in the ’50s, ’60s, and ’70s began to take note of the many state laws that infringed civil rights, they went into severe contortions to avoid being criticized for reviving the dreaded jurisprudence of Lochner in cases where they struck down statutes not to their liking, such as school segregation and laws against selling contraceptives. Bernstein takes some glee in poking holes in their arguments. He argues that while the Lochner justices were principled, consistent defenders of liberty against State power, the Warren Court was inconsistent, relying on tortured constitutional theorizing to pick certain rights they liked for protection (calling them “fundamental”) while allowing government to trample other rights they regarded as undeserving of constitutional protection, particularly property rights and economic liberty.

Bernstein’s book does not merely revisit an old case of interest to only a few lawyers. Lochner has direct bearing on crucial contemporary issues, especially the monstrous pile of legislation (and still greater pile of regulations) known as Obamacare. If the Court were to examine Obamacare through the philosophy that prevailed in Lochner, the law would have to be struck down, for it deprives individuals of freedom of choice at many turns. On the other hand, if the Court’s majority continues with the “government knows best and must be deferred to” philosophy of the Lochner dissent (and innumerable other cases), then the law will be upheld.

Rehabilitating Lochner is a sharp and iconoclastic work of scholarship, one that challenges the deepest beliefs of the defenders of our almost omnipotent government.

ASSOCIATED ISSUE

May 2012

ABOUT

GEORGE C. LEEF

George Leef is the former book review editor of The Freeman. He is director of research at the John W. Pope Center for Higher Education Policy.

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