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The Resurgence of Lochner


Rehabilitating Lochner: Defending Individual Rights against Progressive Reform by David E. Bernstein (University of Chicago Press, 2012), 208 pages.

David Bernstein begins his short book, Rehabilitating Lochner, by noting that “Lochner [v. New York] is likely the most disreputable case in modern constitutional discourse.” If you want to raise eyebrows in legal circles, he says, simply embark on a defense of the Court’s decision in the infamous 1905 case; from experience, I know Bernstein’s claim to be true. So convinced is the legal community of the federal government’s limitless wisdom and benevolence as protector of the otherwise defenseless worker that any attempted rehabilitation of Lochner is bound to be met with the most vitriolic response. To defend Lochner in polite legal society marks one as a kind of reactionary, hardened and unfeeling in the face of the poor worker’s plight.

The assumption, usually left unspoken, is that the implacable forces of free-market greed benefit only the employing classes, labor being left at the mercy of cruel, uncaring bosses — at least until the kind-hearted government intervenes on their behalf. That this narrative and its view of free-market competition are fundamentally at variance with the historical record matters not at all. Facts that undermine the progressive account of early 20th-century history are unceremoniously discarded. As Bernstein notes in his introduction, statutes like the one at issue in Lochner often “favored entrenched special interests at the expense of competitors with less political power.”

Indeed, Supreme Court decisions such as Lochner, treating the freedom of contract as a right worthy of constitutional protection, often yielded “clearly ‘pro-poor’ distributive consequences.” It is worth noting that those observations, inconvenient for those committed to the dominant story of the Progressive Era, are consistent with the revisionist theses of historians such as Gabriel Kolko, whose work exposed the Progressive Era regulatory state’s role in consolidating and stabilizing corporate power rather than curbing it. Aligned unambiguously with the political and cultural Left, Kolko and other revisionists like him (for example, James Weinstein and William Appleman Williams) challenged the shallow notion that the expansion of the regulatory and administrative state always benefited the poor, wage-earning classes.

The unexampled disdain for Lochner is revealing. For the respectable member of legal academia, Lochner must be detested and ridiculed precisely because Progressive Era reforms must never be seriously questioned. The inordinate hatred of Lochner, then, represents a particular historiography as much as it represents a judicial philosophy. And as Bernstein’s book shows, painstaking revisionism has thoroughly discredited that historiography, one suffused with the myth that Lochner epitomizes “laissez-faire Social Darwinism.” This unfriendly treatment of Lochner is especially surprising and paradoxical given that the Court’s lionized privacy cases, in particular (and beginning with) the Warren Court’s decision in Griswold v. Connecticut, relied pivotally on the reasoning from cases decidedly within the Lochner lineage. For example, in Meyer v. Nebraska, decided almost a half-century before Griswold, the Court explicitly followed Lochner in defining constitutionally protected liberty broadly, preparing the ground for the view of substantive due process typified by Griswold.

This jurisprudential connection between Lochner, through its progeny, and Griswold, though downplayed or denied by legal scholars and the Court, did not go entirely unremarked upon. Dissenting from the Court’s opinion in Griswold, Justice Hugo Black protested that long-disgraced Lochner, which the Court declined to cite, was the true source of “the natural law due process philosophy” on which the Griswold holding rested. The connection between the Lochner family of cases and more recent substantive due-process cases such as Griswold embarrasses both conservatives and progressives. “[Conservative] legal analysts,” Bernstein writes, “overwhelmingly adopted the critique of ‘substantive due process’ pioneered by Hugo Black in Griswold….” Black’s dissent in that case maintained that while “certain specific constitutional provisions … are designed in part to protect privacy at certain times and places with respect to certain activities,” there is nevertheless no textual support for a broad, general constitutional “right to privacy.”

The right of contract

Conservatives have, in the main, hewed to the kind of strict constructionism personified by Black. Progressives, for their part, regard the Lochner decision as a shocking example of judicial activism, the Court legislating from the bench and thereby usurping the rightful role of the legislature. Yet they argue that the Court should not shrink from adopting an expansive view of substantive due process in the protection of unenumerated rights that they favor, for example, the right to terminate a pregnancy or to use contraceptives. Libertarians are distinguished from both groups by the fact that they support, even cheer, an active judiciary, one that does not simply defer to legislative bodies but takes seriously its role as protector of important individual rights and liberties. Thus do libertarians generally endorse the majority opinions of both Lochner and Griswold. For libertarians, the right to earn a living, to choose one’s occupation and contract free from arbitrary limitations, is as important a protected liberty as others that the Court has shielded more solicitously.

Without the right to contract, to form enforceable agreements with other parties, there can be no such thing as a free market. Preservation of the free and voluntary exchange of goods and services in an open marketplace demands assurance that the law will protect contracts — that, to the greatest extent possible, courts and policymakers will refrain from interfering with the expressed intentions of market actors. While the legal framework must impart certain tacit terms (for example, that a party is of adult age, that he possesses the proper mental capacity, that a contract is not designed for an illegal purpose), courts in a free society should, as a general rule, give force to parties’ freely made agreements. As Justice Rufus W. Peckham wrote, delivering the opinion of the Court in Lochner, “Statutes of the nature of that under review … are mere meddlesome interferences with the rights of the individual.”

Such interferences ought to trigger the kind of strict legal scrutiny applied in cases that implicate a fundamental right, cases such as  Griswold, where the Court demands that the government demonstrate a compelling state interest in regulating the activity at issue. In those cases, assuming the government is able to demonstrate a compelling interest, it must still show that the law at issue is narrowly tailored to serve that interest. Tasked with the legal burdens entailed in strict scrutiny, governments often fail, their intrusive laws adjudged unconstitutional. But it may surprise non-lawyers to learn that economic rights rate not strict scrutiny — or even intermediate scrutiny — but are instead subject to something called the “rational-basis test,” which allows the government to successfully defend virtually any oppressive economic restriction.

Junior rights

The Supreme Court has treated economic rights as junior rights, so unimportant as to be almost impossible to vindicate in court. In Rehabilitating Lochner, Bernstein suggests that economic rights ought to be treated just like any other fundamental right, that the distinction between economic rights and those that the Court actually protects is ultimately artificial and nonsensical. There can be no tidy separation of political and economic rights, even in theory. The freedom to act in whatever peaceful, noninvasive ways one chooses is a fundamental right worthy of the most scrupulous judicial attention. Bernstein’s book is exactly the kind of rigorous scholarship that could save important economic rights from the place of disesteem they now occupy, further encouraging libertarian lawyers and legal scholars to challenge the judicial status quo.

The Lochner decision has been criticized (by legal scholars such as Laurence Tribe and Cass Sunstein) as standing for “the myth of mechanical neutrality,” whereby the Court takes its own assumptions about politics and society as given in an attempt to obscure the fact that it is actually making a choice. Such critiques echo a familiar refrain from progressives — the claim that since all politico-economic systems, including free markets, require a careful and comprehensive set of rules, the very notion of laissez faire is a speciously and irresponsibly advanced nonconcept. Libertarians, however, neither deny that “the obvious and simple system of natural liberty,” borrowing Adam Smith’s words, rests on a delicately balanced set of rules, nor pretend that they know everything about how best to blueprint a free society. Rather they simply propose that free persons enjoy the widest possible sphere of action, limiting the violence and coercion of government.

Moreover, one need not believe that “existing resource distributions [are] neutral” to agree with the holding in Lochner. Indeed, many libertarians have argued that the existing distribution of wealth and natural resources in society is unjust precisely because the freedom of contract and exchange is restricted, legal and regulatory restrictions often benefitting the powerful and politically connected. That is, if prevailing political and economic structures are not a living embodiment of libertarian principles, then we have reason to question distributions of wealth and resources as a matter of course.

Progressives’ critiques of Lochner reflect their largely unexamined assumptions about what kinds of economic arrangements led to the disparities of wealth and bargaining power to which they disapprove. As Bernstein argues, it is simply not at all clear that free-market arrangements redound predominantly to the benefit of rich and powerful market participants — much less that they must always favor such participants. Progressives such as Sunstein seem not to realize that even if we accept as true the proposition that large corporate employers have too much power over employees, we are nonetheless left with the question of how this situation arose.

Rehabilitating Lochner fulfills the promise presented early in its introduction, “[taking] the revisionist project significantly further” than have previous attempts to challenge “the dominant narrative about liberty of contract inherited from the Progressives.” Bernstein’s is the most complete and comprehensive treatment of a case that “justices of all ideological stripes use … as an epithet to hurl at their colleagues when they disapprove of a decision declaring a law unconstitutional.” We learn that Lochner was hardly a judicial aberration when it was decided — that it was nowise a result of the majority’s supposed hardcore ideological commitment to libertarianism. Bernstein deftly rights a historical record warped beyond recognition by decades of progressive political propaganda passed off as objective fact. With any luck, Bernstein’s efforts will lead legal scholars to give Lochner a fair reassessment and, perhaps, will “lead to a more nuanced, civil, and constructive debate about modern constitutional law,” as he hopes.

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    David S. D'Amato is a policy advisor at the Future of Freedom Foundation, an attorney, and an adjunct law professor. He is also a regular contributor at the Cato Institute's Libertarianism.org and a policy advisor at the Heartland Institute. His writing has been featured at public policy organizations such as the Institute for Economic Affairs, the Centre for Policy Studies, and the Foundation for Economic Education, and in popular media such as Forbes, Investor's Business Daily, Newsweek, and RealClearPolicy.