What Motivated the Supreme Court's pre-New Deal Liberty of Contract Jurisprudence?

I have a new article reviewing the latest developments in the debate among legal historians.

|The Volokh Conspiracy |

I have a new article in the George Mason Law Review, Class Legislation, Fundamental Rights, and the Origins of Lochner and Liberty of Contract. Here is the abstract:

While legal scholars and historians have criticized many judicial doctrines from the pre-New Deal period, critics have been especially scathing in their attacks on the "liberty of contract" doctrine enforced most famously in Lochner v. New York. Until recently, academics routinely asserted that the Lochner Court's Justices simply made up the doctrine based on a combination of belief in laissez-faire economics and hostility to workers' rights.

Contemporary scholars, by contrast, have reconstructed the period's due-process jurisprudence, finding in it a principled commitment to a conception of justice with philosophical and jurisprudential roots dating back to the Founding and beyond. There are two primary lines of this revisionist literature. One emphasizes traditional Anglo-American hostility to "class legislation"—legislation that arbitrarily favors or disfavors particular factions. The other emphasizes the influence of the natural rights tradition, tempered by precedent and historicism, on the Court's due-process decisions. Part I of this Article reviews the debate that emerged in the 1990s and early 2000s between partisans of these interpretations.

Part II of this Article discusses subsequent developments in the class legislation vs. fundamental rights debate through the present time, noting an increasing convergence between the two sides; both sides acknowledge that both class legislaton and fundamental rights played significant roles in the development of the Supreme Court's due process jurisprudence, with the remaining debate primarily over which doctrine deserves more emphasis in histortical recountings.

This Article concludes by noting that as this debate has progressed, certain areas of historical consensus have emerged. First, both sides agree that the Court did not attempt to enforce anything approaching a night watchman-type laissez-faire policy on government. Second, both sides agree that the Supreme Court's fundamental-rights jurisprudence, often traced to the 1930s, in fact began to emerge in the pre–New Deal period. Finally, they agree that the Supreme Court Justices who adopted and applied the liberty of contract doctrine did not have the cartoonish reactionary motives attributed to them by Progressive and New Deal critics. Rather, the Justices, faced with constitutional challenges to novel assertions of government power, sincerely tried to protect liberty as they understood it, consistent with longstanding constitutional doctrines that reflected the notion that governmental authority had limits enforceable via the Due Process Clause.

Howard Gillman, author of a leading book on Lochner and currently Chancellor of UC Irvine, responds here.

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  1. I’m sorry, but SCOTUS had pretty cartoonish motives.

    There’s nothing particularly horrendous about believing in some form of economic freedom as an unenumerated right, but why, exactly, was it unconstitutional for states to step in to a specific form of relationship where bargaining power was and is grossly unequal.

    There’s nothing in principle wrong with freedom if contract. The problem was hypothesizing that workers were freely agreeing to these contracts, and that states were trampling on that freedom by prohibiting the most exploitative contracts.

    1. Believing in freedom — actually believing it as a principle — requires believing that people are responsible for their own actions. Your refusal to believe this shows in your contempt for the bakers, treating them like children who must be protected from evil businesses by the State, as guided by you.

      You cannot believe in freedom if you only believe in freedom for the elite like yourself to control when others may not exercise their freedom to make decisions of which you do not approve.

      1. Believing in freedom means you champion it even if it ends up leading to much less actual freedom?

        Because there’s principle, and then there’s zealotry beyond reality.

        It’s hard to argue the Lochner era was a height of freedom. Certainly not for the worker.

        It’s almost as though your idea of economic freedom is a pinched, unrealistic view of what makes people actually free.

        1. Believing in freedom means that what you think of what people do with it doesn’t matter, because it’s their call what to do, not yours.

          “Is it really freedom if I don’t like the results of somebody else’s choices?” Yes, it is.

          1. That’s a straw man.

            A better analogy is how “freedom” is handled in situations involving duress. Nobody would say that a court invalidating a contract due to duress simply didn’t like the result of the choice. The point is, it wasn’t really a free choice.

            1. This debate is kind of missing the boat. Everyone on the Court agreed that “exploitative” contracts would be illegal. The Court uphold bans on Sunday work, bans on paying workers in scrip, bans on gambling, maximum hours laws for miners, and so forth. None of the Justices suggested that the contract in Lochner was exploitative. The main debate was between the 5-Justice majority, who said that there was insufficient evidence that the law promoted public or baker health for it to be considered a health law, and the 3-Justice dissent led by Harlan, who said that the Court should be more deferential to the legislature’s determination that the law protected bakers’ health. None of the Justices’ suggested that “unequal bargaining power” had anything to do with it, which is just as well, given that Lochner owned a small bakery with 2 employees and thus had no significant “market power.”

              1. None of the Justices suggested that the contract in Lochner was exploitative.

                That is, in fact, the problem.

                The point of the statute was precisely that making bakers work 12 hours a day WAS exploitative. That society, and the bakers, would be better off if bakeries weren’t able to demand such contracts.

                Now, if you want to argue that was bad economic theory, fine. But it isn’t the sort of thing that can be resolved with appeals to freedom of contract. The bakers may very well prefer to work shorter hours, or some percentage of them would, and the legislature has a legitimate interest in preventing employers from insisting on longer hours.

                1. I’d have to go back and look it up, but I believe that the underlying problem with this argument is that New York didn’t argue it, but instead argued it was a valid health law. If New York had argued it, they would have had to explain why bakers, of all groups of workers, should be the only ones to benefit from such a law. Holmes addressed this in his dissent, but Holmes was well outside the mainstream of accepted jurisprudence at the time. The key to constitutionality or lack thereof was arbitrariness. If the claim is that workers are exploited if they work more than 10 hours, it seems rather arbitrary to single out bakers (as indeed it was). Which is why the law stood or fell on whether it was a health law. IIRC, this was also the debate on the lower courts, where the state one 4-3 and 3-2 (or was it 2-1)?

                  1. I’d have to go back and look it up, but I believe that the underlying problem with this argument is that New York didn’t argue it, but instead argued it was a valid health law.

                    Those arguments are connected. Even if the purpose is “health”, the premise of the regulation is that a certain type of contract harms the bakers’ health such that the bakers wouldn’t want to enter into it. They are certainly connected enough that I wouldn’t find a waiver.

                    If New York had argued it, they would have had to explain why bakers, of all groups of workers, should be the only ones to benefit from such a law.

                    Maybe they would have, but that doesn’t mean they should have.

                    I don’t see why inconsistencies between professions is a CONSTITUTIONAL defect. New York decides baking is a rough job, and that workers would, in the main, prefer to work less hours. So they impose a limit. None of that is false. So it doesn’t matter if there’s some other profession that they failed to appropriately regulate. So long as the premises are true as to the bakers, that should be enough.

                    The key to constitutionality or lack thereof was arbitrariness.

                    OK, but there’s nothing particularly “arbitrary” about saying “baking is a tough job, the workers would prefer to work fewer hours, therefore we will limit the hours.

                    This is kind of reminiscent of the cruel and unusual punishment doctrine. You get intracase proportionality review (whether the punishment fits the crime, essentially). But you don’t get intercase proportionality review (whether some other crime that is just as serious gets punished less severely). And the reason is because intercase proportionality is a classic legislative call.

                    If New York is wrong that bakers could benefit from limitation on their hours and would want to contract for it if they could, that’s a possible constitutional case. But how does it violate THE BAKERS’ freedom of contract if the regulation is fine as to bakers but the legislature is just not treating other professions the same way?

                    It seems to me among other things, that turns what is supposed to be a due process freedom of contract case into an equal protection case.

                    You are arguing the bakers’ freedom of contract. If the BAKERS don’t want a 12 hour a day contract, because they think that working that long is bad for their health, there is no impingement on their freedom of contract.

                    Look, if one were applying neutral principles of liberty of contract, one wouldn’t apply it to a case like this, where the government was clearly trying to impose labor conditions the workers themselves would like but couldn’t obtain. You’d look for other cases to apply the doctrine. The only reason to strike down THIS law is to try and impose extreme laissez-faire onto labor markets. Which is why Holmes said what he said.

                    1. You are stuck in modern doctrine that assumes that government intervention on behalf of particular groups with no particular rationale beyond their lobbying power is not arbitrary. But we still blanch constitutionally at arbitrary legislation. Imagine today that the government said that people with red hair get Confrontation rights, because they lobbied for it successfully after they thought several red heads were convicted unfairly, but no one else does. The Court has not otherwise demanded that all suspects have Confrontation rights. Is that Constitutional? Or for matter, Colorado decided that gay rights activists, but no one else, need a state constitutional amendment to win antidiscrimination protections, because their opponents outvoted them. Why is that a problem? No one is “entitled” to antidiscrimination laws for their group?

                    2. (continued from below): Holmes, by contrast, saw politics as a version of natural selection, so he was fine with the notion that whoever wins politically should be permitted to keep their victory. That’s the unattractive origin of the idea that if the bakers want shorter hours, even if there is no reason to think they are worse off than many other groups for whom the government has not dictated shorter hours, then they should be allowed to keep that victory.

                    3. The difference is that red hair isn’t relevant to any regulatory purpose. But being a baker is. Being a redhead isn’t any different than being a blonde with respect to anything I can think of that the government might regulate. But a government official can rationally conclude that baking is a tough job that requires a maximum hours rule.

                      As for your ad hominem attack on Holmes, look, he had a lot of bad beliefs. So did Antonin Scalia. So did Hugo Black. So did James McReynolds. And so did, not coincidentally, several of the justices in the Lochner majority.

                      But it seems to me you can’t on the one hand object to people suggesting that people who suggest the Lochner majority had cartoonish views are out of line while attacking Oliver Wendall Holmes in the most cartoonish way. Holmes dissent is taught in law schools because whatever his personal beliefs, he accurately called out the majority for what it was doing– reading an extreme laissez faire view of labor relations into the Constitution.

                      Whatever Holmes other flaws, he was correct about that.

                    4. Being a baker is only relevant if one can explain why it is relevant. Saying that they have more political power than other workers doesn’t make it any more relevant than being a redhead. Holmes gave the only plausible rationale–“Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work.” He then adds, “Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss,” i.e., it may be that it’s arbitrary, but the process of increasing social protection through legislation can be arbitrary, so long as the broad goal is not.
                      As for Holmes more generally, his opinion is just terrible, legally-speaking, and also morally speaking. But it was useful for the emerging progressive legal movement, who found it useful to pretend that Holmes was an enlightened progressive rather than a dark eugenicist.

                    5. How about “being a baker involves a lot of working with your hands and hot ovens”?

                      Isn’t that enough?

                      You seem obsessed with the law resulting from lobbying, but that describes almost everything substantive enacted by a legislature, and does not prove freedom of contract was improperly interfered with.

                      The legislature, egged on by bakery workers, found that 12 hour days in the bakery were too harsh. Seems fine to me. You keep wanting to make the case about not regulating other businesses, but that’s irrelevant.

                  2. ” Holmes was well outside the mainstream of accepted jurisprudence at the time.”

                    I’ve seen this defense of Lochner – that is was consistent with the prevailing jurisprudence at the time – on several occasions, and have had a hard time making heads or tails of it. I think most Lochner critics would stipulate that the case was a correct application of the black-letter principles as they stood at the time (or at least not an indefensibly wrong application of them). The chief criticism is that those principles (i.e. the mainstream jurisprudence of the day) were themselves defective. Garbage in, garbage out, so to speak. After all, most criticism is not so much about Lochner itself, per se, but rather about the so-called “Lochner era” writ large.

                    For the most part, references to Lochner are a shorthand for criticism of the judiciary’s special solicitude for the rights of powerful employers vis-a-vis their workers that pervaded that era. To argue that Lochner was not an outlier seems to bolster this view, not undermine it. Maybe Lochner is unfairly singled out, but would it really make a difference if we called it the Coppage Era or the Adkins Era?

            2. “A better analogy is how “freedom” is handled in situations involving duress. Nobody would say that a court invalidating a contract due to duress simply didn’t like the result of the choice.”

              Nobody’s suggesting that you should have the freedom to employ duress. And if you did, then sure, contracts as the result of duress should be enforced.

              1. That’s not the point.

                The point is, how does one view consent procured by duress. Do you just say “well, you consented”? Or are you willing to accept that sometimes consent is procured in unfair ways and isn’t the end-all and be-all of whether an obligation should be enforceable?

                Well, the New York legislature concluded that bakers might appreciate shorter hours in what was a grueling job around hot ovens. And that they weren’t able to negotiate that condition on their own, because they had little choice but to agree to their employer’s terms.

                And the point is, when that’s the playing field, “well, you consented” doesn’t do the work you want it to.

            3. Yes, but what do we mean by “duress”? Merely not offering somebody as good a deal as they might want? No, it’s got to be something more than that.

              “noun: duress

              threats, violence, constraints, or other action brought to bear on someone to do something against their will or better judgment.”

              So, what threat were the bakers under, what violence were they faced with? All they were faced with was, “Take it or leave it.”

              Well, if they were allowed to leave it, they weren’t under duress.

              1. Like 12, you completely missed the point about why duress is relevant.

        2. “It’s almost as though your idea of economic freedom is a pinched, unrealistic view of what makes people actually free.”

          Yup. Being actually free means having to work two jobs because of laws limiting working hours.

          1. That assumes maximum hours laws don’t tighten the labor market and raise wages.

            1. Well, they didn’t when I used to work two jobs. And the really shitty thing was, the second job paid less.

              Of course, once I moved out of the low end of the labor market, overtime laws were great.

              1. You are confusing microeconomics (and really bad microeconomics) with macroeconomics.

                The effect of maximum hours laws, macroeconomically, is to create more jobs for the same labor force, thereby increasing wages. Do you see why?

                1. Of course, it’s a form of rationing. And it has the same effect that rationing always has.

                  1. Rationing can be a correct economic policy under a variety of circumstances. It was instrumental to winning World War II, for instance.

                2. Maximum hours laws create more jobs but have no effect on increasing wages. Wages are determined by the supply and demand for labor. Artificially creating more jobs by government fiat does not increase the size of the pie, it merely creates more smaller slices.

                  1. This assumes inelastic profit margins.

                    1. Yep. In the real world, if demand for labor goes up (because a law requiring more hires) and supply remains steady, wages go up.

                      This is the same reason the baseball players union supports a designated hitter.

                    2. There is inelasticity only at the upper end of what is feasible for wages to be. Even if you assume infinite demand for goods and services it will only be met as long as there is profit, so unless productivity increases wages cannot go past that limit set by profitability. The other end is elastic because absent government intervention there is no floor to wages.

                    3. Dilan

                      The government intervention we have been discussing does not increase the demand for labor; it just increases the number of jobs, paying less because of hour limits, for the same work. The hour limit hasn’t increased demand for goods and services.

        3. It’s hard to argue the Lochner era was a height of freedom. Certainly not for the worker.

          What kind of lawyer says that something is hard to argue?

          1. 😀

      2. The problem is that this conception of freedom is not imposed against the states by the U.S. constitution. Believing that people should be responsible for their own actions is fine, so far as it goes, but it has nothing to do with the 14th amendment. The core error of Lochner (and the Lochner era) was conflating this bit of folk morality with constitutional dogma, when there was no text to support it.

      3. I don’t see how it “treats people like children” to mandate a contractual term that many of them would want.

        I mean this would be like saying the Magnason-Moss warranty act treats people like children because some consumers might prefer to buy a slightly cheaper, shoddy product and gamble that it won’t be defective.

        1. And that hypothetical argument would be correct. (Well, it would be if M-M mandated a warranty; it doesn’t.)

          1. Magnuson-Moss makes it harder force a consumer to waive an implied warranty, David.

            And your view that this treats consumers like children is probably rejected by 98 percent of America. Literally nobody but a few libertarian ideologues think that any disclaimer placed into a contract of adhesion with respect to a consumer good should be enforced, or that a rule that limits such disclaimers “treats consumers like children”. And to the point of this post, such enforcement certainly isn’t mandated by the Constitution.

      4. So believing in freedom means you must believe that when people get sick, they are responsible for that? Their actions, their responsibility.

      5. That’s beautiful theory so long as the parties have roughly equal bargaining power. If one party says “take it or leave it” and the other party will starve if he doesn’t take it, then it’s not really freedom, is it?

        1. You seem to assume that the labor component always lacks bargaining power. Even without collective bargaining if there is a labor shortage or if certain skills are in short supply workers have leverage and that leverage is the “leave it” side of “take it or leave it.”

          1. There is likely to be a glut of labor (especially unskilled labor) far more often than a shortage. That was certainly true in the gilded age, when most of this regulation started to be passed.

            My mother’s first job was as a file clerk in 1946. She had to sign an agreement that she would only date Christians and abstain from tobacco and alcohol. File clerks were a dime a dozen; if she’d balked at signing it, there would have been a half dozen other girls eager to take her place.

            1. “if she’d balked at signing it, there would have been a half dozen other girls eager to take her place.”

              Sure, at that particular employer. Other employers existed, most without a Christian marriage clause.

              1. And you know this how?

                In theory, anyone can quit their job at any time and get another one. In practice, major employers dominate the market, especially in given geographic locations and for specific types of jobs. Family obligations make it hard to pack up and leave. Granted, I don’t know for certain that she couldn’t have found another job, but you sure as hell don’t know that she could have.

                1. Don’t you know? Bob’s knowledge of basic economic concepts automatically describes every labor market worldwide. And certainly anyone who claims they had to take a job under unfavorable terms totally rejected tons of other options.

    2. “but why, exactly, was it unconstitutional for states to step in to a specific form of relationship where bargaining power was and is grossly unequal.”

      Grossly unequal bargaining power means that you need more people one side, and fewer on the other.

      1. No it doesn’t. You just need a situation where one side can effectively use leverage and the other side cannot.

        1. And if you have more employers, employers have less leverage. Incumbent employers enact regulations to prevent other employers from competing.

          1. That’s a political science and economic theory (and at least an incomplete one- workers groups, in every context that they have been allowed to organize, have sought maximum hours laws).

            1. The have sought maximum regular pay hours but many labor contracts include a provision for a guaranteed number of overtime hours per year.

              1. That’s very different though. And worth noting- the Lochner Court would have struck down the NY bakery law even if it merely penalized exceeding maximum hours with overtime pay.

                1. I’m not defending Lochner; in fact I think there are sound reasons for some government intervention on behalf of workers. I even support a reasonable minimum wage because an over-supply of labor can drive wages down to intolerable levels.

  2. Lochner is such an odd case to tilt at because the case in point was a NY regulation that was clearly just an attack on small business.

    1. Most regulations are designed to protect the powerful from the powerless.

  3. You mean, the Court was thoughtful and nuanced and we shouldn’t judge it to harshly with our hindsight?

    That kinda ruins the comment thread from the start. I like it.

    1. The problem was it wasn’t thoughtful and nuanced. You just can’t reach the result the Court reached without a heaping pile of extremism. Remember- as conservatives often remind us about modern cases- there’s literally nothing in the Constitution that says a damned thing about states enacting maximum hours laws. So what makes them unconstitutional? The only answer can be some form of freedom of contract that places formal freedoms that bakers don’t even wish to exercise above the bakers’ actual interests. And the only people asserting such a “freedom” were on the management side of the equation. Really, they didn’t even have standing.

      1. Not seeing anything but subjective opinions in the back and forth upthread, and extremism on your part, not to mention some bad economic theory. So, yea, it’s your opinion the Court wasn’t thoughtful and nuanced vs Bernstein that the Court was.

        I’ll take his opinion over yours, all things considered, though I just downloaded the .pdf of the article to read to see what is said in detail.

        Ultimately, your making the case about today and what injustices you see today, and seeing the facts from 1905 through your modernist eyeglasses.

        1. Mad:

          Literally 98 percent of the country believes the 40 hour week is constitutional. Your side is the extremist side here.

          1. You’re wearing 21st Century goggles with modern progressive filter lenses firmly in place. That comment perfectly illustrates it, not only because you’re using the present tense about what people believe today, but because that wasn’t so clear 115 years ago, when the decision actually occured.

            Just as a side note, the bakery workers slept on the job between evening and morning shift in the bakery. Firefighters do that today, and doctors and nurses and various other professions all work well more than 40 hours.

            1. Just as a side note, the bakery workers slept on the job between evening and morning shift in the bakery. Firefighters do that today, and doctors and nurses and various other professions all work well more than 40 hours.</I.

              That's a legislative call though. What's the rush to take that decision away from the legislature? And what's the constitutional basis?

              It isn't freedom of contract. As I said, workers like these limitiations.

  4. Well, you see, at that time the Justices concocted the idea of “substantive due process” to evaluate the merits of laws and strike down laws they didn’t like. As progressive critics carefully explained, this was an illegitimate use of judicial power, and policy decisions should be made by the elected branches.

    Finally the Supreme Court saw the light and got rid of the idea of substantive due process, and it was never heard from again. The End.


  5. Few would suggest that any of the current Supreme Court’s substantive due process cases can’t be traced to long-standing philosophical positions and a genuine concern about justice. No-one, or at least very few of those who serioisly think about these things, think they aren’t rooted or defensible positions from the point of view of theories of justice or good government or fairness, even when they strongly disagree with them.

    The issue, then as now, is to what extent does the constitution give judges authority to strike down laws of the legislature enacted with due process of law based on philosophies and theories of justice and governance, however pedigreed amd rooted those theories may be.

    Even if so it was done in the time of Henry II.

    1. “There’s no such thing as substantive due process”, it seems to me, runs into trouble with a case like Rochin.

      The basic theory of SDP is pretty unassailable. Due process depends to some extent on what the government is depriving. So a parking ticket only requires a modicum of due process, say, a hearing, whereas a life sentence in prison requires a whole bunch of due process.

      Well, how much process does the government need to conduct before crushing your testicles? The obvious answer is “infinity”, i.e., they can’t crush your testicles no matter what. That’s all SDP is- the recognition that there are some things that the government can’t do even with all the process in the world. I come back to Rochin- they can never pump your stomach. Even with a warrant. Even with a hearing. Even with the unanimous consent of 12 jurors. Even with your lawyer present.

      And once you understand SDP that way, it makes Lochner look even more ridiculous. Because of all the things that you might say government can’t do even with infinite process, “prevent bakeries from demanding their employees work 12 hours a day” is pretty obviously not going to be on that list.

      1. Why do you have to resort to Substantive due process to ban testicle crushing or stomach pumping?

        You already have textual Constitutional provisions to use.

        testicle crushing–cruel and unusual punishment

        stomach pumping–unreasonable search

        1. Cruel and unusual punishment doesn’t apply unless there’s been a trial and sentence. See Bell v. Wolfish. You need the Due Process Clause to get you there.

          And the point of Rochin was to bar stomach pumping period- not only as a search.

  6. OK, explain to me why when the first antitrust statute was passed, the Court applied it not to break up Rockefeller trusts but to break up labor unions.

    1. Where does the “not” come from? See Standard Oil among other cases.
      As for labor unions, Congress didn’t exclude them. When Congress did under the Clayton Act, the Court applied the law. Look at the text of the Sherman Act: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” Note the “every.” Why shouldn’t it apply to labor unions as well as corporations?

      1. Can you find anything in the legislative history of the Sherman Act that hints at an anti-union intent? Context counts for something. And it’s no accident that Congress rather quickly acted to correct this gross misinterpretation. (And can you in any sense call labor unions a “combination in restraint of trade”?)

        By this logic, slave holders would have been deprived of “privileges and immunities” by having their slaves freed. Certainly there is nothing in the Fourteenth Amendment (again, stripped of context) that would dictate otherwise.

        1. Can you find anything in the legislative history of the Sherman Act that hints at an anti-union intent?

          I mean, that’s not a proper method of statutory interpretation, but sure. When it was first proposed, there was debate over whether it would apply to unions, and a provision was put in expressly exempting unions. But when the law was ultimately adopted, that provision had been removed. That doesn’t prove anything — but then legislative history never does — but it at least could suggest that they didn’t want that exemption.

          And it’s no accident that Congress rather quickly acted to correct this gross misinterpretation.

          You are begging the question. Changing the law does not mean that it was a “misinterpretation,” gross or otherwise. It means that they decided they didn’t like that outcome.

          (And can you in any sense call labor unions a “combination in restraint of trade”?)

          You mean any sense other than actually reading the words and interpreting them by their ordinary meaning? A bunch of sellers get together and agree to sell their services collectively only upon the same terms as each other.

          By this logic, slave holders would have been deprived of “privileges and immunities” by having their slaves freed. Certainly there is nothing in the Fourteenth Amendment (again, stripped of context) that would dictate otherwise.

          Did you miss the Thirteenth Amendment? There were no (lawful) slave holders by the time the Fourteenth was ratified.

  7. While government officials including Supreme Court justices are entitled to a presumption of good faith including honest motivation, motivation isn’t really relevant to the issues. The question isn’t whether or not advocates of the economic substantive due process doctrine were scoundrels or good people. It’s not even whether it’s a good doctrine or not. The question, the only question that matters when evaluating Supreme Court constitutional decisions, is whether that doctrine is part of the constitution or not.

  8. It seems awfully convenient that, once the institution of chattel slavery was abolished – an institution that was premised on class-based legislation – new legal doctrines suddenly emerged that prohibited class-based legislation. And, these legal doctrines just happened to be most pronounced in the one branch of government that possesses the power to counteract popular legislation.

    James: “Well guys, we had a pretty good run with our classed-based system of legislation, in which we were the class that got to subjugate another class. But, that class now appears to have political rights, which means they can vote and possibly influence legislation. I don’t know about you guys, but I certainly don’t want to be on the receiving end of class-based legislation. Anyone have any ideas on how we can possibly get out of this one?”

    Alex: “I propose we retreat to judiciary! We can string together new legal doctrines that prohibit class-based legislation, and use the concept of individual rights, combined with judicial review, to strike down what is sure to be some seriously uncool laws. Who knows, these doctrine might come in handy in other areas too.”

    Tom: “Doesn’t that seem like kind of a dick move though? I mean, we kind of used class-based legislation to completely dominate another group, literally denying them any rights, let along fundamental rights. Now we’re going to say turn around and say class legislation is bad and fundamental rights are sacrosanct?”

    James: “Who the hell keeps inviting Tom to these meetings!?”

  9. One emphasizes traditional Anglo-American hostility to “class legislation”—legislation that arbitrarily favors or disfavors particular factions.

    Sure, there is a bit of a tradition in America to do class privileging de facto instead of de jure. But that has never offered enough to fully satisfy the Americans most desirous of class advantage. They have gone farther, to indulge a long-standing American taste for class privileging via legal outcomes, and sentencing decisions. Where yet more privilege has been wanted, there has been administrative class privileging, with all the finagling the corporate field throws open, not to mention securities regulations and banking regulations as particularly fertile sources of class advantage—plus also all the federal government agency policies designed to enable at discretion federal largesse to preferred classes of recipients, while denying it to others. And if those do not quite rise to the level of putting class privileging forthrightly into legislation, it is not as if that kind of legislation has been wanting. The nation’s history is replete with various laws passed expressly to establish and protect slavery, Jim Crow, anti-immigrant discrimination, school segregation in the North, school funding laws based on class-coincident political boundaries, tax laws skewed to advantage the rich, class-protective voting laws, legally mandated anti-unionism, may-issue gun laws, laws protecting restrictive residential covenants, and—if Ilya Somin were to weigh in—residential zoning laws.

    Other than that, yeah, we can stand up and cheer for America’s tradition of hostility to, “class legislation.”

    1. That’s all true.

      What mystifies me is how you can still worship the framers who set all this up (and intended to perpetuate the worst forms of all, slavery and landed aristocracy)?

      If you dislike this sort of legislation, it ought to be obvious that the framers were douchebags.

      1. Your mistake is in assuming I, “Worship the framers.” I have tried to explain at some length, on several threads, the difference between your perspective and a historical perspective. It has done no good that I can see, with you, or maybe with any other reader, for all I know. I will not try to do it again now. I will try to put it in the briefest terms I can.

        My view of the study of history is that it is useless while doing it to judge historical figures by modern standards that they themselves were incapable of. I have explained why that incapability exists, and why it is unavoidable. One problem is, the best way to understand that incapability is to take a few years to study original historical sources yourself, and let them teach you the lesson. Few people without formal historical training ever get that experience.

        If you want to gain wisdom by studying history, you have no choice. To judge historical figures you must first learn their standards, and seek to understand them according to those. Everything else is self-deception about the past. There is no wisdom to be found in that.

        I should also point out (again) that although I sometimes argue from a historical standpoint to critique bad originalist arguments, I am not an originalist myself, not even a little. I do not have any inclination to privilege the founders’ views over modern ones. I am just allergic to seeing other folks, who do want to privilege the founders views, do so while arguing historical points using citations and methods they do not understand and are not qualified to discuss.

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