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Rehabilitating Lochner: Defending Individual Rights against Progressive Reform

Author(s):Bernstein, David E.
Reviewer(s):Gerber, Scott Douglas

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. Bell 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

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Subject(s):Government, Law and Regulation, Public Finance
Geographic Area(s):North America
Time Period(s):20th Century: Pre WWII
20th Century: WWII and post-WWII