Book Reviews

Lochner Isn't a Dirty Word

Correcting the cartoonish vilification of a libertarian Supreme Court decision

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Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, by David E. Bernstein, University of Chicago Press, 208 pages, $45

In 2005, when Barack Obama spoke out against conservative California Supreme Court Justice Janice Rogers Brown's nomination to the prestigious U.S. Court of Appeals for the District of Columbia Circuit, the junior senator from Illinois selected one of the most damning epithets in the liberal legal arsenal: Lochnerian. "One of the things that is most troubling is Justice Brown's approval of the Lochner era of the Supreme Court," Obama intoned from the Senate floor. "Keep in mind that same judicial philosophy was the underpinning of Dred Scott," the notorious 1857 decision that declared African Americans "had no rights which the white man was bound to respect."

The Supreme Court's 1905 decision in Lochner v. New York may be controversial, but it was not remotely like Dred Scott. At issue in Lochner was a provision of New York's 1895 Bakeshop Act making it illegal for bakery employees to work more than 10 hours a day or 60 hours a week. While the state legislature had the authority to enact valid health and safety regulations, Justice Rufus Peckham wrote for the 5-to-4 majority, the limit on work hours "is not, within any fair meaning of the term, a health law." It involved "neither the safety, the morals, nor the welfare, of the public," Peckham wrote, unlike those sections of the Bakeshop Act regulating "proper washrooms and closets," the height of ceilings, floor conditions, and "proper drainage, plumbing, and painting," which he deemed legitimate. As Peckham put it, "clean and wholesome bread does not depend on whether the baker works but ten hours per day or only sixty hours a week." In the Court's view, the hour limits therefore violated the Due Process Clause of the 14th Amendment, which says no state may "deprive any person of life, liberty, or property, without due process of law."

It was a straightforward decision based on longstanding American principles, including the free labor philosophy of the anti-slavery movement, that limit the government's power to regulate the economy. But most liberal legal scholars today will tell you Obama got it right, that Lochner represents the disgraceful triumph of evil bosses over cruelly exploited workers, reflecting a "willingness to consistently side with the powerful over the powerless."

Yet as George Mason University law professor David E. Bernstein reveals in his wonderful new book on the case, Rehabilitating Lochner, Obama's caricature is wildly at odds with the historical evidence. The true origins of the Bakeshop Act lie in an economic conflict between unionized New York bakers, who labored in large shops and lobbied relentlessly in favor of the law, and their nonunionized, mostly Jewish and Italian immigrant competitors, who tended to work longer hours in small, old-fashioned bakeries. "A ten-hour day would not only aid those unionized bakeries who had not successfully demanded that their hours be reduced," Bernstein observes, "but would also drive out of business many old-fashioned bakeries that depended on flexible labor schedules." The large corporate bakeries joined the union in supporting the Bakeshop Act. After all, it was in their economic interest to favor regulations that crippled the competition.

Drawing on both previous legal scholarship and his own extensive historical research, Bernstein offers a definitive account of this misunderstood and unjustly maligned case. Not only did Lochner represent the victory of small-scale producers over large, politically connected special interests, Bernstein points out, but the ruling led directly to several of the Supreme Court's most important early decisions in favor of civil rights and civil liberties under the 14th Amendment, including Buchanan v. Warley, the landmark 1917 case in which the National Association for the Advancement of Colored People scored its first victory before the Supreme Court. If anyone consistently sided with the powerful against the powerless, it was Lochner's Progressive Era critics. Progressive legal activists didn't just take a dim view of individual rights under the Constitution. They typically supported state action in all of its vilest forms, including Jim Crow laws and anti-immigrant laws.

Consider some of the arguments made in favor of the Bakeshop Act. As Bernstein discovered after poring over previously untapped sources, including the Baker's Journal, a weekly paper published by the bakers' union, anti-immigrant hostility against "the cheap labor of the green hand from foreign shores" played a limited but important role in marshaling support for the state law. (The "green hand" was a common term for immigrants at that time.) Moreover, many state officials shared the union's prejudice against immigrant bakers. "It is almost impossible to secure or keep in proper cleanly condition the Jewish and Italian bakeshops," one state inspector reported in 1898. "Cleanliness and tidiness are entirely foreign to these people." In the Lochner brief it submitted to the Supreme Court, New York argued that the Bakeshop Act was necessary in part because "there have come to [New York] great numbers of foreigners with habits which must be changed."

Lochner's critics also proved ugly, if in a different way. Foremost among them was Supreme Court Justice Oliver Wendell Holmes Jr., who became a hero to the reform-minded after filing a sharp and much-quoted dissent in the case. According to Holmes, the proper scope of government power had nothing to do with the protection of individual rights. What mattered was "the right of the majority to embody their opinions in law." That meant the Supreme Court should adopt a posture of judicial deference and let the legislative majority have its way. The 14th Amendment "is perverted," Holmes claimed in his Lochner dissent, "when it is held to prevent the natural outcome of a dominant opinion." Not exactly a rousing defense of the powerless.

Yet Progressive legal activists loved every word of it. In his 1921 book The Nature of the Judicial Process, attorney Benjamin Cardozo praised Holmes' Lochner dissent as "the beginning of an era," adding, "It has become the voice of a new dispensation, which has written itself into law." Harvard law professor Roscoe Pound repeated most of Holmes' Lochner arguments in an influential 1908 Columbia Law Review article. Yale law professor Jerome Frank dubbed Holmes "The Completely Adult Jurist."

As Bernstein details, the anti-Lochner views expressed today by Obama and others can be traced back to the influential work of these Progressive Era thinkers. Roscoe Pound, for instance, used his prominent perch at Harvard to preach the anti-Lochner gospel to generations of elite law students. Fellow Harvard law professor Felix Frankfurter did the same thing. He also served as a key adviser to President Franklin Roosevelt, who appointed him to the Supreme Court in 1939. There Frankfurter joined a pro–New Deal majority that rendered Lochner a dead letter and created a two-tiered approach that gave virtually no judicial protection to economic liberties while paying careful attention to "fundamental" rights such as freedom of speech. Those decisions remain binding Supreme Court precedent.

Nor was Lochner the only case where Holmes and his Progressive allies wanted to let the majority have free rein. In 1919 the state of Nebraska passed a law banning both public and private school teachers from instructing young children in a foreign language. As Bernstein explains, the ban was popular with more than just the local nativists. "Banning or heavily regulating private schools was also supported by many Progressives," he notes, "who thought public schools essential in winning the citizenry's loyalty to an increasingly activist state."

Thankfully the Supreme Court saw things differently. In a sweepingly libertarian opinion that relied on Lochner's broad defense of individual rights, conservative Justice James C. McReynolds held that the 14th Amendment's Due Process Clause secured the right of private school teacher Robert Meyer to earn a living by teaching in his native language of German. Furthermore, McReynolds wrote in the 1923 case Meyer v. Nebraska, liberty "denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children," and "to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

It was the exact opposite of the pro-government judicial restraint championed by the Progressives. So of course Holmes filed a dissent. "I am unable to say the Constitution of the United States prevents the experiment being tried," he explained in Meyer's companion case, Bartels v. Iowa, which dealt with a similar ban on foreign-language teaching. In Holmes' view, the Supreme Court had no business restricting a state legislature's ability to "experiment" with limiting the language of its citizens.

If there was a single unifying theme to Progressive legal activism at this time, it was the idea that the courts should show broad deference to the majority's will. Progressives didn't just hate Lochner because it struck down an economic regulation; they hated it because the Court used the 14th Amendment to overturn a popularly enacted state law. Felix Frankfurter said he would have sided with Holmes in Meyer rather than "lodging power in those nine gents in Washington." Future federal judge Learned Hand said that he "especially deplored" the notion that the 14th Amendment "embalms individualistic notions of a hundred years ago." Frankfurter and Hand each wrote unsigned editorials in The New Republic calling for the repeal of the 14th Amendment's Due Process Clause. New Republic founder Herbert Croly went even further in his 1914 book Progressive Democracy, where he attacked the entire Bill of Rights for transforming the Constitution "into a monarchy of Law superior in right to the monarchy of the people." As Bern­stein observes, Holmes and his fellow Lochner opponents "had little use for individual rights and thought the police power virtually unlimited." So much for siding with the powerless.

The bankruptcy of the Progressive position was also evident in Buchanan v. Warley, a 1917 case involving a Louisville, Kentucky, law segregating residential housing blocks by race. Enacted "to prevent conflict and ill-feeling between the white and colored races," this Jim Crow ordinance violated property rights by making it illegal for blacks to live on majority-white blocks and for whites to live on majority-black blocks.

In the brief they submitted to the Supreme Court, NAACP President Moorfield Storey and co-counsel Clayton B. Blakely argued that the Louisville ordinance "destroys, without due process of law, fundamental rights attached by law to ownership of property." The law's true purpose, they argued, was not "to prevent conflict and ill-feeling," as the city claimed, but rather "to place the negro, however industrious, thrifty and well-educated, in as inferior a position as possible with respect to his right of residence, and to violate the spirit of the Fourteenth Amendment without transgressing the letter." Among the legal authorities they cited was Lochner v. New York.

The Supreme Court agreed. "Property is more than the mere thing which a person owns," Justice William Day wrote for the majority. "It is elementary that it includes the right to acquire, use, and dispose of it." Following Storey and Blakely's argument, Day held that the 14th Amendment "operate[s] to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color."

It was a major victory for individual rights and the first big win for the young NAACP, which went on to become the most influential civil rights organization in the country. And once again, Justice Holmes wrote a dissent, except this time he decided not to file it and instead voted with the majority (for reasons that remain unknown). In the draft of that dissent, however, Holmes took his usual majoritarian position, arguing that Louisville's Jim Crow regulation was a perfectly legitimate exercise of state power. "Given Holmes' disregard for the rights of African Americans and his expansive understanding of the police power's scope," Bernstein observes, "his proposed dissent in Buchanan is not surprising." The only surprise is that Holmes ended up voting to strike down the law. 

Today most liberals would break with their Progressive predecessors and accept Meyer and Buchanan as good law. Yet Lochner still remains an object of derision on the legal left, despite the plain fact that it was Lochner's expansive protection of individual liberty under the 14th Amendment that made both Meyer and Buchanan possible. Comparing Lochner to Dred Scott is the height of historical ignorance. Perhaps somebody should hand a copy of Rehabilitating Lochner to Barack Obama. It's clear the former constitutional law lecturer still has a lot of legal history to learn. 

Damon W. Root (droot@reason.com) is an associate editor at reason.