------ EH.NET BOOK REVIEW ------
Title: Rehabilitating Lochner: Defending Individual Rights against
Progressive Reform

Published by EH.NET (June 2011)

David E. Bernstein, /Rehabilitating Lochner: Defending Individual Rights
against Progressive Reform./ Chicago: University of Chicago Press, 2011. viii
+ 194 pp. $45 (hardcover), ISBN: 978-0-226-04353-1.

Reviewed for EH.Net by Scott Douglas Gerber, College of Law, Ohio Northern
University.

David E. Bernstein, Foundation Professor at the George Mason University
School of Law, has long been regarded as the nation’s leading authority on
the much-maligned 1905 U.S. Supreme Court decision, /Lochner v. New York/.
His new book, /Rehabilitating Lochner: Defending Individual Rights against
Progressive Reform/, is the culmination of his years of scholarship on the
case. I give Bernstein’s book the highest compliment one scholar can pay to
the work of another: I learned a lot from reading it. Indeed, after finishing
Bernstein’s book I will no longer think of /Lochner/ the way I used to --
as the apogee of the Supreme Court’s activist defense of the capital class
-- and I will certainly teach the case differently than I have in the past.

/Rehabilitating Lochner/ is intellectual history in its highest form.
Bernstein states in the Introduction that “Lochner is likely the most
disreputable case in modern constitutional law discourse” (p. 1). He adds
that “What history can tell us is that the standard account of the rise,
fall, and influence of the liberty of contract doctrine is inaccurate,
unfair, and anachronistic” (p. 6). He devotes the remainder of his book to
substantiating this remarkable claim, and he succeeds marvelously.

Chapter One explores the rise of liberty of contract, a constitutional law
doctrine that guarantees individuals and corporations the right to enter into
formal agreements without government interference. The doctrine is widely
understood as the linchpin of laissez-faire economics and free market
libertarianism. Bernstein demonstrates in the chapter that the doctrine was
not created from whole cloth by an activist, pro-capital Supreme Court, but
rather traces to the foundational principle of American constitutionalism:
that, above all else, the purpose of government is to protect -- not infringe
upon -- every individual’s natural rights.

Chapter Two is devoted to the /Lochner/ litigation itself, a decision in
which the nation’s highest court invalidated, on Fourteenth Amendment due
process grounds, a New York law that limited the number of hours bakers could
work to ten per day and sixty per week. Bernstein chronicles in the chapter
how those who have pilloried /Lochner/ over the years do not understand what
the litigation was actually about. He points out, for example, that the
bakers’ union that championed the lawsuit was at least as interested in
driving small bakeshops that employed recent immigrants out of business as it
was in protecting the health of bakery workers. What impressed me most about
the chapter, however, were the sources that Bernstein cites in support of his
reading of the case: the /Baker’s Journal/ and /The National Baker/, to
mention two particularly relevant periodicals of the day that modern critics
of the decision have overlooked.

Chapter Three, a discourse on the sociological school of Progressive
jurisprudence that mounted the initial attack on /Lochner/, finds Bernstein
excoriating several luminaries of American law. Roscoe Pound, the dean of
Harvard Law School, and Oliver Wendell Holmes Jr., the most strident
dissenter on the Court that decided /Lochner/, come off particularly poorly.
For example, Bernstein includes Pound in a group of legal elites whose
support for sociological jurisprudence “often masked a political agenda
that favored a significant increase in government involvement in American
economic and social life” (p. 41), while Holmes is revealed to be an
egomaniac with an “obvious and self-proclaimed disdain for facts” (p.
46).

Chapter Four, “Sex Discrimination and Liberty of Contract,” and Chapter
Five, “Liberty of Contract and Segregation Laws,” are, in my judgment,
the two strongest chapters of a consistently strong book. Bernstein
demonstrates in the chapters that the supporters of /Lochner/ were far more
protective of the rights of women and minorities than were /Lochner/’s
Progressive critics. With respect to women’s rights, Bernstein documents
how the Progressive defense of legislative restrictions on women’s place in
the workforce turned on “paternalistic” arguments that “appealed to
contemporary sexism” (pp. 60, 64). Those opposed to the Progressive
program, in contrast, invoked Lochner’s conception of liberty of contract
as the legal justification for permitting women to compete on an equal
footing with men in the workplace. Turning to the rights of African
Americans, Bernstein shows that it was the Progressive opponents of
/Lochner/, rather than the conservative proponents of the decision, who
consistently practiced racial discrimination. Bernstein writes: “In short,
the conventional story that the Court’s pro-liberty of contract decisions
are somehow linked to the toleration of segregation in /Plessy/ and other
cases cannot withstand historical scrutiny. Indeed, the opposite is the case.
When the Court deferred to “sociological” concerns and gave a broad scope
to the police power, as in /Plessy/, it upheld segregation. When, however,
the Court adopted more libertarian, /Lochner/-like presumptions, as in
/Buchanan/, it placed significant limits on race discrimination” (p. 86).

Chapter Six is devoted to a topic that has received a lot of attention from
scholars over the past decade or so: the Supreme Court precedents that served
as the foundation for the explosion of civil liberties decisions in the
modern era. Bernstein demonstrates that here, too, the conventional wisdom is
incorrect -- with the conventional wisdom being that Progressive opponents of
/Lochner/ had an expansive view of civil liberties and proponents of
/Lochner/ were hostile to them. Bernstein focuses on the decisions the Court
issued in the first third of the twentieth century regarding education,
eugenics, and freedom of expression to substantiate his reading of
constitutional history. His discussion of the pro-private education opinions
of perhaps the most notorious bigot to ever sit on the Court, Justice James
McReynolds, is particularly striking. By voting to declare unconstitutional
on substantive due process grounds the Progressive attempts to hamstring
private education, Bernstein insists, McReynolds was protecting racial and
ethnic minorities, despite his personal animus for them. Bernstein
characterizes McReynolds’s jurisprudence in these cases as a nothing less
than a rebuke against statist Progressive ideas about educational reform. As
McReynolds himself put it in one of the cases, “the child is not the mere
creature of the state” (p. 96).

Holmes, the darling of the Progressive movement, is made to look like a
monster in the eugenics cases. In /Buck v. Bell/ (1927), for example, he
infamously quipped, “Three generations of imbeciles are enough” (p. 97),
an opinion about which he later boasted to a friend, “One decision that I
wrote gave me pleasure, establishing the constitutionality of a law
permitting the sterilization of imbeciles” (p. 98). Bernstein makes plain
that Holmes was not alone in his outrageous views. Professor Fowler V.
Harper, for one, included /Buck v. Bel/l on a list of encouraging
“progressive trends” in the law (p. 98). With regard to civil liberties,
the area of constitutional law with which Progressives are most closely
associated, Bernstein describes how “Progressive defenses of freedom of
expression relied on utilitarian considerations, and not on freedom of
expression as a fundamental individual right” (p. 99).

Chapter Seven addresses /Lochner/ in the modern era. By definition, the
chapter covers material with which most readers are familiar, in particular
the Warren Court’s landmark privacy decision, /Griswold v. Connecticut
/(1965), and the Burger Court’s 1973 abortion rights case, /Roe v. Wade/.
Bernstein reminds readers that, Justice William O. Douglas’s protestations
for the /Griswold/ majority notwithstanding, both /Griswold/ and /Roe/, not
to mention the Court’s recent pro-gay rights decision in /Lawrence v.
Texas/ (2003), all trace to /Lochner/. Bernstein also explains how modern
conservative opponents of the /Griswold-Roe-Lawrence/ line of cases such as
Robert Bork are the intellectual offspring of the Progressives who preceded
them -- and hence hostile to a strong judicial role in protecting individual
rights -- while modern liberal supporters of that line of cases like Laurence
Tribe owe much to prior judges and scholars who embraced /Lochner/ (although
they try very hard to deny it). Bernstein once again turns the conventional
wisdom on its head. He is correct, however. Indeed, I always mention to my
constitutional theory students that modern libertarians such as Randy
Barnett, Richard Epstein, and Bernstein himself have more in common with
modern liberals than they do with modern conservatives in viewing the
Constitution as requiring aggressive judicial protection of individual rights
from overreaching by the majoritarian political process.

Bernstein concludes /Rehabilitating Lochner/ with a summary of what he calls
the “modest” conclusions of his book (p. 126). Those conclusions are
found on pages 126-27, and they are in reality far from modest. Bernstein has
done nothing less than explode the myth of /Lochner/, a decision that any
pro-liberty student of American constitutional law should embrace. This is a
book that will transform the way constitutional law is understood for years
to come.

Scott Douglas Gerber is Professor of Law at Ohio Northern University and
Senior Research Scholar in Law and Politics at the Social Philosophy and
Policy Center. His most recent academic book is /A Distinct Judicial Power:
The Origins of an Independent Judiciary, 1606-1787/ (Oxford University Press,
2011). His most recent legal thriller is /Mr. Justice: A Novel/ (Sunbury
Press, 2011). His email address is [log in to unmask]

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Geographic Location: North America
Subject: Government, Law and Regulation, Public Finance
Time: 20th Century: Pre WWII, 20th Century: WWII and post-WWII