The Fall 2011 Claremont Review of Books included a review by Prof. Richard A. Epstein of Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. The author of that book, George Mason University law professor David E. Bernstein, has made its introduction available to those who click here and follow the download procedure.

Rehabilitating Lochner argues that Americans should reconsider the widely held belief that the U.S. Supreme Court decision in the case of Lochner v. New York deserves to be the paradigm of activist judges abusing the power of judicial review to substitute their policy preferences for those embodied in laws passed by elected legislators. The Court's majority in Lochner held that New York's Bakeshop Act, prohibiting certain kinds of bakery employees from working more than 10 hours a day or 60 hours a week, was unconstitutional. In 2005, 100 years after Lochner, a newly elected United States senator, and former Senior Lecturer at the University of Chicago law school, Barack Obama, invokedLochner to criticize President George W. Bush's nominee to the D.C. Circuit Court of Appeals, Janice Rogers Brown. Senator Obama said:

In the Lochner case, and in a whole series of cases prior to Lochner being overturned, the Supreme Court consistently overturned basic measures like minimum wage laws, child labor safety laws, and rights to organize, deeming those laws as somehow violating a constitutional right to private property. The basic argument in Lochnerwas you can't regulate the free market because it is going to constrain people's use of their private property. Keep in mind that that same judicial philosophy was the underpinning of Dred Scott, the ruling that overturned the Missouri Compromise and said that it was unconstitutional to forbid slavery from being imported into the free States. That same judicial philosophy essentially stopped every effort by Franklin Delano Roosevelt to overcome the enormous distress and suffering that occurred during the Great Depression. It was ultimately overturned because Justices, such as Oliver Wendell Holmes, realized that if Supreme Court Justices can overturn any economic regulation-Social Security, minimum wage, basic zoning laws, and so forth-then they would be usurping the rights of a democratically constituted legislature. Suddenly they would be elevated to the point where they were in charge as opposed to democracy being in charge.

Until the New Deal, critics of the judiciary were likely to be Democrats, while its defenders were usually Republicans. In the1936 GOP platform, for example, Republicans promised to "resist all attempts to impair the authority of the Supreme Court of the United States, the final protector of the rights of our citizens against the arbitrary encroachments of the legislative and executive branches of government. There can be no individual liberty without an independent judiciary."

By the time they wrote their 2008 platform, however, Republicans were more concerned with the dangers from the judiciary than with threats to it:

Judicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public. This must stop….

Republicans will insist on the appointment of constitutionalist judges, men and women who will not distort our founding documents to deny the people's right to self-government, sanction federal powers that violate our liberties, or inject foreign law into American jurisprudence. 

How did the shoe wind up on the other foot? There were two big developments. First, in a series of decisions some historians call the "constitutional revolution" of 1937, the Supreme Court made it clear that it would uphold the constitutionality of federal and state laws regulating business, some of which, like the Bakeshop Act, it had overturned in the 32 years following Lochner. The result, according to one scholar, was that "Congress could reach just about any commercial subject it might want to reach and could do just about anything it was likely to want to do to that subject, whether for economic, humanitarian, or other purposes."

The second development began in the 1950s when the Court started relying on the idea of a "living Constitution," the belief that the judiciary could discern "the evolving standards of decency that mark the progress of a maturing society." Justices who based their interpretation of the Constitution on the paramount importance of "human dignity" were not bashful about claiming that their own understanding of these evolving standards were more acute than those arrived at by elected legislators. Armed with this confidence, they asserted that the Constitution prohibited legislators from doing some things that they and, presumably, their constituents wanted to do, such as outlawing abortions. It could also require elected officials to do other things they did not want to do, such as impose the new taxes required to pay for turning an entire urban school district into a set of magnet schools, designed to achieve racial balance by enticing white suburban families to send their children to the city's public schools.

Does repudiating the jurisprudence that strikes down laws on the basis of the Bill of Rights' "emanations" and "penumbras" require repudiating Lochner? To put the question another way, does rehabilitating Lochner cut the ground out from critics of modern judicial activism? Two letters in response to Richard Epstein's CRB review raise these questions. We are pleased to offer those letters, followed by replies from Professors Epstein and Bernstein, and then some suggestions for further reading.

I. Letters to the Editor

Richard Epstein's review of David Bernstein's Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform demonstrates that even conservatives who ought to know better can succumb to the temptation of believing their most deeply felt policy preferences must, somehow, rise to the level of constitutional imperative, even if they are unable to point to actual text in the constitution supporting their position. Lochner v. New York is bad law. It is true that progressives hate Lochner, because it checked, however temporarily, the expansion of the regulatory state. But even a broken progressive is right twice a day, and in this case progressives are right for the wrong reason. The Lochner court was wrong not because it checked the regulatory state, but because the decision rests on sheer judicial willfulness. For that reason it would be a serious mistake for conservatives to try to rehabilitate Lochner. Judicial activism is pernicious whether it is used to further conservative causes or liberal causes. Indeed, the reasoning in Lochner is the polar opposite of conservative constitutional reasoning, by which I mean reasoning based on the actual text, history and structure of the Constitution and not judges' policy preferences.

The Constitution creates a federal government of limited and enumerated powers. In contrast, the states have plenary power in every area not delegated to the federal government or prohibited to them by the Constitution. Thus, while the federal government may enact only those laws that are permitted by the Constitution, the states may enact any law unless it is prohibited by the Constitution. No one disputes, for example, that states have plenary power to enact a broad range of economic regulations.

Therefore, in an economic regulation case like Lochner, the only issue is whether the particular law runs afoul of some prohibition in the Constitution. The Lochner court struck down the New York maximum hour law at issue in that case on the ground that it violated the "right and liberty of the individual to contract" protected by the Constitution. The only problem is that nothing in the text of the Constitution speaks to (far less guarantees) a generalized "right to contract." So the Lochner court did what courts usually do when they believe the text of the Constitution is deficient. They make up for the Constitution's infirmity by declaring that their preferred policy is subsumed within the concept of "due process" guaranteed by the 14th Amendment.

The due process clause of the 14th Amendment states:"… nor shall any State deprive any person of life, liberty, or property, without due process of law." Any schoolchild can tell you the phrase "due process" means "those procedures that are warranted." On its face the due process clause is nothing but a guarantee of procedural fairness. The government cannot deprive a person of life, liberty or property unless it gives him notice and a fair hearing before an impartial tribunal. The clause simply does not address the issue of the proper grounds upon which a state may decide to deprive someone of their liberty (i.e., the "substance" of the law being enforced). Robert Bork captures this concept nicely when he writes that the phrase "substantive due process" is like the phrase "green pastel redness," a mishmash of inconsistent concepts. Nevertheless, beginning with Dred Scott, running through Lochner, and picking up speed later in the 20th century with cases like Griswold v. Connecticut (the infamous "emanations from penumbras" case) and culminating in Roe v. Wade, the Court has used the internally incoherent concept of "substantive process" to wreak havoc on our constitution order.

Lochner has this in common with all substantive due process cases-one can read it over and over again and never find a limiting constitutional principle. The court held that the New York legislature was being unduly meddlesome when it limited bakers to ten hours a day, but in the same opinion the court noted that a Utah statute limiting miners to eight hours a day was perfectly acceptable. From this we can discern that the line between unconstitutional "unduly meddlesome" and constitutional "acceptably meddlesome" rests somewhere between ten hours for bakers and eight hours for miners. This is not "law." It is the sort of thing medieval scholastics might debate when they were not busy counting angels on the head of a needle. Of course, the Constitution creates no such line, and the essence of conservative constitutional jurisprudence is that where the Constitutional does not speak, judges must also remain silent and defer to the democratic process (even if-no, especially if-the judge believes the democratic process has produced a bad result).

I take it that Epstein believes Lochner is good law even though other substantive due process cases such as Roe v. Wadeare bad law. But why is subverting the Constitution in the name of economic freedom more praiseworthy than subverting the Constitution in the name of sexual freedom? Why should unelected, life tenured, unaccountable judges get to impose their policy preferences on the rest of us with respect to the former and not the latter? Epstein does not say.

Epstein does say that, "On Bernstein's persuasive reasoning, Lochner rightly rejected the unions' politically successful rent-seeking." Come again? When did it become the courts' role to upset the results of the political process under the guise of enforcing constitutional rights? Even if one concedes that it is economically harmful for legislatures to give in to rent seekers (and I do), and even if one believes that legislatures can do astonishingly stupid things (again, I do), the courts have no power to ride in and save the day when politics fails. The Constitution is not designed to prevent legislatures from doing stupid things. It is designed to prevent legislatures from doing unconstitutional things, and the two are simply not the same thing. Like the comedian said, "You can't fix stupid," and the Constitution does not attempt to do so. If the Massachusetts legislature is determined to tax, spend and regulate the state's economy into the dust, nothing in the Constitution prevents it from doing so.

This does not leave the people of Massachusetts without a remedy. They can petition their representatives for change. Failing that, they can try to vote the rascals out. And failing that they can either live with the mess or flee to New Hampshire (which many have in fact done). What they cannot legitimately do is petition the federal courts to save them from their own feckless legislature.

What about the sex, race and religion cases Epstein cites?As for sex and race, both are suspect classifications under the Equal Protection clause, and protection from discrimination on those grounds does not require subversive substantive due process reasoning. As for Pierce v. Society of Sisters (which overturned a Nebraska law that effectively prohibited parents from sending their children to parochial schools), it was also wrongly decided even though it reached a result that is nearly universally praised by conservatives. The Constitution does not contain any provision protecting the right of a parent to send their child to a parochial school. Therefore, the case was decided on "substantive due process" grounds, and for that reason no less a conservative hero than Justice Scalia has leveled withering criticism at Pierce. (See Troxel v. Granville.)

Epstein urges conservatives to take the Lochner plunge and embrace "substantive due process." But once conservatives have conceded that redoubt, the entire conservative constitutional edifice must fall. Conservatives may win or lose any particular case when they hold to constitutional reasoning grounded in the actual text, structure and history of the constitution, but standing firm on principle allows them always to retain the moral high ground. If conservatives give in to the siren song of "substantive due process," they cede that high ground, and constitutional law degenerates into nothing more than "the ability to count to five." Moreover, if conservatives rehabilitate Lochner, on what possible basis can they then criticize Roe v. Wade?After all, lacking any grounding in the text, history or structure of the Constitution, bothLochner and Roe are the same in this respect-they are based on judges' strongly felt policy preferences and nothing more.

Finally, by rehabilitating Lochner not only would conservatives cede the high moral ground and leave themselves morally defenseless when liberals use the same tactic to subvert the Constitution, but also the practical effects would be disastrous. Now and for the foreseeable future progressives hold the institutions of American law (law schools, bar associations, the bench) in a vice grip, which is why conservative jurists are vastly outnumbered by progressives, especially in our "elite" law schools. Conservative moral suasion acts as an often-successful check on liberal attempts to place constitutional law in service of politics. But progressives are bound to win if constitutional law becomes a principal-free numbers game for the simple reason that they have the numbers.

– Barry K. Arrington
Centennial, Colorado

Professor Richard Epstein's praise of Lochner v. New York is high indeed. Under its ruling, in his words, "ordinary people, even foreign immigrants, were entitled, as autonomous human beings, to make their own decisions about how, why, and on what terms to exchange economic goods and services." I have difficulty, however, understanding this autonomy which he celebrates.

Lochner, after all, involved many more "ordinary people, even foreign immigrants," than were named as plaintiffs. Those unnamed parties, citizens of the State of New York, saw the Supreme Court strike down a law enacted by their elected representatives, a law limiting the number of consecutive hours which bakery employees were allowed to work in one day. Was this not a decision-their decision, limited and possibly flawed, but ratified by their votes-about "how, why, and on what terms to exchange economic goods and services"? Were the people of New York not exercising their joint or political autonomy in the enactment of that law?

But Professor Epstein seems convinced that the New York legislature was manipulated by a small faction, an insidious special interest. Perhaps it was, but that is much too vague a standard to guide judges in testing statutes; it is a high, straight road to government by judiciary. How much of a role would the Professor allow New Yorkers in their state's social policies? Not much, it would seem from his article.

Could it be that a strict laissez-faire economy can only be imposed by an authoritarian government? Might that explain why Professor Epstein's idea of autonomy contains a very stout admixture of heteronomy? Does he really wish to put autonomy at the center of his vision of liberty?

– Scott Rutledge
Richardson, Texas

II. Richard Epstein's Reply

Setting the Right Balance Between Legislative and Judicial Functions

Barry Arrington's criticism of my review of David Bernstein's Rehabilitating Lochner makes the powerful point that any clause that reads "no person shall be deprived of life, liberty or property, without due process of law" seems like an odd vehicle to use for securing substantive rights, given its explicit reference to process only. But the actual historical account is more complex than Arrington acknowledges.

The missing piece in the puzzle, which I could not discuss in the review, was the incorrect reading that the Supreme Court gave to the Privileges or Immunities clause of the Fourteenth Amendment in the Slaughterhouse cases in 1872. That clause does have inescapable substantive bite when it says, "No state shall make or enforce any law that abridges the privileges or immunities of the Citizens of the United States." The Supreme Court read it to cover only rights that individuals had as federal citizens, when the correct reading is that all United States citizens are protected against any abuse of their individual rights done by state government, so long as they are covered by the generous phrase "privileges or immunities," which did include the right to enter into honest agreements.

Properly read, the "Privileges or Immunities" Clause places a huge limitation on what the states can do to citizens, even if it does not extend to all persons, both citizens and aliens, who are protected by the Due Process Clause. Once these privileges and Immunities are secured, the state may retain huge powers to initiate legislation, but all that legislation (and its enforcement) remain subject to a judicial override on constitutional grounds.

At this point, the police power enters the discussion in a sensible way-as it does with every other substantive constitutional guarantee. These individual rights are subject to limitation when the state passes legislation that is reasonably adapted to protecting the "health, safety, general welfare, and morals," of the public at large. Yet that police power does not allow the state to engage in anticompetitive activity-in Lochner, the insulation of unions against nonunion competition. There is no "subversion" here of the Constitution in striking down New York's maximum labor law. Recall that the subject of Ernst Freund's great 1904 treatise was "The police power, public policy and constitutional rights." written the year before Lochner. Lochner built on a long tradition.

Unfortunately, Slaughterhouse snarled up American constitutional law. Its dissenters took refuge in the Due Process Clause to undo its manifest errors. As usual, however, two wrongs do not make a right. Once due process was given a substantive dimension, the relevant constitutional protection covered both citizens and aliens, contrary to the original structure of the Privilege or Immunities Clause, which reserved occupational liberties to citizens only.

Getting Lochner right, moreover, does not create some deep contradiction with Roe v. Wade, which is wrongly decided even as Lochner is correctly decided. The key difference is found in the police power. Whatever one thinks of Roe, the anti-abortion law has no anticompetitive component, but is surely a matter of health and safety for the unborn fetus, which has always properly been a state concern.

Nor will it do for Mr. Arrington to trot out yet once again the query: "Why should unelected, life tenured, unaccountable judges get to impose their policy preferences on the rest of us with respect to the former and not the latter?" His position on this issue is echoed by Scott Rutledge, who also attributes excessive weight to the democratic processes that the Founders sought to limit.

The incurable problem with their common position is that it attacks not just economic liberty, but all of judicial review. After all, even on their common view, the federal constitution imposes limitations on how states try criminal and civil cases that democratic majorities reject. The same can be said with constitutional protections for speech and property and contract, which necessarily override the policy preferences of democratic majority.

What is needed, therefore, is a more fine-grained theory to demarcate the respective zones of the legislature and the courts. One partial approximation holds that only the legislature can authorize condemnation of particular real estate, but that it cannot do so in ways that avoid either the public use or just compensation requirements of the Fifth Amendment of the Bill of Rights.

Following these steps does not, moreover, yield the high ground to the progressives because the entire substantive architecture of the Constitution is steeped in a concern with guarantees for individual rights and structural constraints. These have to be faithfully enforced in order to prevent the rise of the administrative state (for which there is no textual warrant) or the massive restriction of substantive rights. This task is hard slogging, but some disembodied notion of judicial restraint does not allow judges and theorists to evade the hard substantive questions of what particular clauses mean and why.

Progressives have to be proved wrong (when they are wrong) clause by clause and case by case. That task is not impossible. As I argued in my 1985 Takings book, courts have recourse to a wide variety of techniques to isolate those actions that are intended to advance the interest of Madison's factions from those which seek to generate common improvements shared by all. It takes no great insight to realize that statutes of limitation and recording acts do modify rights of property and contract, but do so only in a way that improves the overall social welfare, here defined as the position of all persons benefited and burdened by the rule. The same cannot be said of a zoning law that stops one person from building so his neighbor can secure a monopoly position.

The deep difficulty that besets both Arrington and Rutledge is that they succumb to a deep form of political relativism and cognitive skepticism in order to justify their excessive devotion to democratic institutions which in the end form no part of our constitutional plan or heritage.

III. David Bernstein's Reply

Richard Epstein's review of my book, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform, has provoked two thoughtful letters, and I thank the editors for providing me with an opportunity to respond to them.

While Epstein's review explicitly endorses the result in Lochner, my book does not. Instead, I try to correct various errors in the standard historical accounts of Lochner and other liberty of contract cases. As I explain in the Introduction, I leave it to interested readers to apply the history presented to their own understandings of proper constitutional interpretation and construction. So I won't use this opportunity to argue that Lochner was correctly decided. But I will take issue with some of the statements and assumptions made in the letters.

Barry Arrington suggests that the entire notion that the Due Process Clause of the Fourteenth Amendment protects substantive rights is absurd. The clause, which was the basis of the Supreme Court's decision in Lochner that a maximum hours law for bakers violated the right to liberty of contract, holds that states may not take a person's liberty without "due process of law."

Arrington avers that "due process" quite clearly refers only to "a guarantee of procedural fairness," i.e., "notice and a fair hearing before an impartial tribunal." But in fact, this is not clear at all. The mistake Arrington is making is to separate "due process" from "of law." We live in a positivist age, where valid "law" is simply whatever the legislature passes and the governor signs. But the Fourteenth Amendment was not passed in such an age, but at a time when legislation that involved an arbitrary and capricious deprivation of people's rights was not considered to be proper "law" at all.

Starting in the 1830s, a series of state court judicial opinions established that certain types of acts passed by legislatures could not be valid legislation, which naturally led to the conclusion that enforcing them could not be due process of law. Courts asserted that inherently invalid acts included legislation that purported to exercise judicial powers, such as by granting new trials; legislation that applied partially or unequally; and legislation that took or taxed private property for private purposes.

By the time the Fourteenth Amendment was enacted in 1868, it was widely understood that the concept of "due process of law" included protections for substantive rights. This understanding was held not just by Justice Roger Taney in the infamous Dred Scott case, but by the Supreme Court in the otherwise obscure 1852 case of Bloomer v. McQuewan, by the Republican Party platforms of 1856 and 1860, and by Abraham Lincoln. By 1868 "a recognizable form of substantive due process had been embraced by courts in at least twenty of the thirty-seven then-existing states" and also by "the authors of the leading treatises on constitutional law," according to Ryan C. Williams.

While Arrington is correct that the phrase "substantive due process" sounds oxymoronic, the pre-New Deal Supreme Court never used this phrase, and indeed did not distinguish between the "substantive" and "procedural" attributes of "due process of law." Rather, all arbitrary deprivations of life, liberty, and property were deemed unconstitutional. The phrase "substantive due process" seems to have been invented by New Dealers, to describe a jurisprudence they, with their strongly positivist outlook, not only despised but did not understand.

Arrington also raises significant concerns about whether judges in the so-called Lochner era created a coherent limiting principle on their jurisprudence. Perhaps not, though contrary to historical myth the Supreme Court was slow to use its authority to invalidate legislation on due process grounds.

Regardless, it's important to separate the issue of appropriate interpretation of the constitutional next from the issue of the authority that judges have to apply that text. If judicial activism is the concern, then the proper solution is to create a constitutional culture in which the judiciary is deferential to the elected branches, but the other two branches are vigorously protective of constitutional rights. But if conservatives accommodate their concerns about judicial activism by skewing their interpretation of the Constitution, in particular by ignoring the historical evidence that the Due Process Clause was intended to protect unenumerated rights, they are acting no less politically than the liberal "judicial activists" they abhor.

The difficulty in conservative circles of taking Lochner seriously arises largely because Lochner has frequently been used to criticize Roe v. Wade. Arrington likewise equates Lochner and Roe v. Wade as being based on nothing more than judges' policy preferences. Yet contract rights were considered an essential liberty both to the Founders (who protected "the obligation of contracts" from state interference in Article I, section 10) and the Radical Republicans responsible for the Fourteenth Amendment (who explicitly protected contract rights in the Civil Rights Act of 1866). There is no such historical warrant for constitutional protection of abortion rights. And as a practical matter, I don't know that a single liberal has ever been persuaded to oppose constitutional protection of abortion rights because of conservative arguments that it's hypocritical to support Roe but harshly criticize Lochner.

Scott Rutledge's letter, meanwhile, is based on the premise, expressed in Justice Holmes's dissent in Lochner, that the Constitution protects "the right of a majority to embody their opinions in law." As Rutledge acknowledges, however, much legislation has little to do with the will of the majority and is instead a product of special-interest groups representing a small fraction of the public, and the laws they advocate often come at the majority's expense.

More important, there is nothing in the Constitution to suggest that the majority has a "right" to run roughshod over the rights of the minority. The United States, lest we forget, is not a democracy but a constitutional republic. Much of the original Constitution-including its separation-of-powers provisions and the establishment of an independent judiciary-was established precisely to thwart majorities bent on lording over the recalcitrant minority.

The states were sovereign within their own sphere before the Civil War, but the Fourteenth Amendment provided federal protection for individual rights against the states. Exactly what those rights are, their precise scope, and the role judiciary should play in protecting them are all pertinent questions to which there are no simple answers. That doesn't mean, however, that conservative constitutionalists can simply close their eyes and pretend that we have been bequeathed a majoritarian political system.

More generally, like many other conservatives Arrington and Rutledge seem unwilling to reconsider their acceptance of the standard myths about the Lochner Court. By adopting the Progressive story of Lochner, and by adopting the views of Progressive heroes like Justice Holmes, conservatives have ceded a great deal of intellectual ground to the other side. It's understandable that conservatives strategically took this tack in the 1960s and 70s, when the primary goal was to limit liberal activism and conservatives were a small minority in elite legal circles. But it's entirely inadequate to try to create a conservative governing constitutional ideology out of myths inherited from Progressive propagandists who were anything but conservative.

All that said, there are quite reasonable arguments that liberty of contract, per se, is not protected by the Due Process Clause. Even if it is so protected, one can reasonably argue that the Lochner Court should have followed Justice Harlan's dissent and exhibited greater deference to the judgment of the New York legislature. For conservative constitutionalists to make such determinations, however, requires a careful study of the relevant historical and legal materials free from the baggage of the tendentious, politically motivated accounts of Progressives, New Dealers, and their successors on the Left and, surprisingly, the Right.

IV. For Further Reading

Other reviews of Rehabilitating Lochner are available from Commentary, EH.net, and Reason. George F. Will devoted acolumn to the book, which some denounced. David Bernstein writes for the Volokh Conspiracy blog, where an archived category is devoted to Rehabilitating Lochner.