George Mason University
SCHOOL of LAW
Lochner’s Legacy’s Legacy
David E. Bernstein
03-15
LAW AND ECONOMICS
WORKING PAPER SERIES
Forthcoming in
Texas Review
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Lochner’s Legacy’s Legacy
David E. Bernstein*
*
Visiting Professor, Georgetown U niversi t y L a w Center; Professor, George Maso n Univ ersity
School of Law. E-mail: dbernste@gm u.edu. Jim Ely, Cynthia Estlund, Ba rry Friedman, Richard
Friedman, Tom Grey, Nate Om an, Renee Lerner, M ichael Solimine, Robert Post, Michael Seidman,
and John W itt have pro vided he lpful com ments and su ggestions , as did p articipants in faculty
workshops at Colum bia Law S chool, Ge orgetown Univer sity Law Center, the University of Michigan
School of Law, and th e University of S an Diego S chool of Law. The author thanks the Law and
Economics Center at the Ge orge M ason U niversity Sch ool of Law fo r financia l support f or this
Article. Megan Fotouros of George M ason’s library staff diligently tracked down dozens of obscu re
sources needed for this Article. Jeffrey Jackson and Mollie Malone provided excellent research
assistance. Any errors that survive editing will be corrected in a future article to be called “Lochner’s
Legacy’s Legacy’s Lega cy.”
Lochner’s Legacy’s Legacy
Avoiding “Lochner ’s error” remains a primary focus of constitutional law and
constitutional scholarship. Deb ate, however, continues regarding just what that
error was. In Cass Sunstein’s oft-cited 1987 Columbia Law Review article,
Lochner ’s Legacy, Sunstein argues that the Lochner era Court’s primary error
was not its purported “judicial activism.” R ather, the p rimary p roblem with
Lochner was the Justices’ belief that market ordering under the common law was
part of nature rather than a legal co nstruct, and formed a baseline from which
to measure the constitutionality of state action, rendering redistributive
regulatio ns unco nstitutiona l.
Lochner ’s Legacy’s understanding of the Lochner era has been widely accepted
in legal circles, in cluding by four cu rrent Sup reme Co urt Justic es. As
conservative and liberal Justices continue to battle over the meaning of Lochner
and its significance for modern constitutional jurisprudence, the liberal Justices
have adopted Lochner’s Legacy’s historical thesis. What is remarkable about
Lochner ’s Legacy ’s massive influence o n the curre nt unde rstanding of Lochner
is how little evid ence Su nstein provides for his historical claims. Beyond Lochner
itself, the article cites only seven cases out of hund reds of relev ant Lochner era
cases, and disc usses only two of them in any deta il. Even the discu ssion of these
two cases is tendentious. Sunstein’s argument has nevertheless thrived because
until now no o ne has systema tically scrutinized its historical underpinn ings.
This Article examines three major historical claims Lochner ’s Legacy makes
about the Lochner era: (1) that the Lochner era Supreme Court understood the
common law “to be part of nature rather than a legal construct”; (2) that the
Lochner era Court sought to preserve what it saw as the “natural,” “status quo”
distribution of wealth against redistributive regulations; and (3) that the
abandonment of Lochner resulted from the Supreme Court’s recognition that the
problem with Lochner and its progeny was that the Court in those decisions
mistaken ly treated government inaction as the “baseline” to determine the
constitution ality of govern ment reg ulations. Th is Article argues that all three of
these propos itions are de monstra bly incorre ct. Lochner ’s Legacy provides a
particula rly telling exam ple of the d anger o f applying an ideo logical co nstruct to
constitutional history for presentist purposes, while ignoring or neglecting
contrary evidence
The ghost of Lochner v. New York 1 haunts American con stitutional law. Almost
one hundred years after the Supreme Court decided Lochner, Lochner and its
progeny remain the touchstone of judicial error.2 Avoiding Lochner’s mistake is
1
198 U.S. 45 (1905).
See Seminole Tribe of Florida v. Florida, 517 U .S. 44, 176 (1996) (S outer, J., dissenting) (stating
that Lochner repr esen ts the “nad ir” of judi cial com petence ); 2 B RUCE A CKERMAN , W E THE P EOPLE :
T RANSFORMATIONS 269 (1998) (“[M]odern judges are more disturbed by the charge of Lochnering than
the charge of ignoring the intentions of the Federalists and Republicans who wrote the formal text.”);
J.M . B alkin & Sanfor d Levinson, The Canons of Constitutional Law, 111 H ARV. L. R EV. 963, 1018
2
Bernstein
the “central obsession” of modern constitutional law.3 Supreme Court Justices are
at pains to deny that their opinions declaring laws unconstitutional are
Lochnerian,4 while dissenting Justices use Lochner as an epithet to criticize their
colleagues. Conserva tive Justices acc use their collea gues of Lochnerizing when
the Court curtails abortion restrictions, 5 while liberal Justices respond in kind
when property regulations are declared unconstitutional under the Takings
Clause,6 and when the Cou rt uses the Commerce Clause 7 or the Eleve nth
Amendment 8 to invalidate federa l laws. On issues that divide the Court along
atypical lines, such as the scope of the dormant commerce clause, ecumenical
groups of dissenting Justices acc use their collea gues of Lochnerizing when the
majority invalidates governme nt regulations. 9
(1998) (noting that among ten constitutional law casebooks cited, Lochner appe ars in all ten, and that
Lochner is represented in modern constitutional theory as a case that all mainstream theorists must
reject); Mich ael Les Be nedict, Laissez-Faire and Liberty: A Re-Evaluation of the Mean ing and
Origins of Laissez-Faire Constitutionalism , 3 L. & H IST. R EV. 293, 295 (1985) (“Nothing can s o da m n
a decision as to compare it to Lochner and its ilk.”); Richard A. Primus, C anon, Anti-Canon, and
Judicial Dissent, 48 D UKE L.J. 243, 244 (1998) (contend ing that Lochner is the most important case
in constitution al law’s “an ti-canon,” the group of cases th at are acce pted as e xtrem ely im portant
examples of constitutional error).
3
Gary D. Rowe , Lochner Revisionism Revisited, 24 L. & S OC. INQUIRY 221, 223 (1999 ); cf. James
L. Kainen, The H istorical Framework for Reviving Constitutional Protection for Property and
Contract Rights , 79 C ORNELL L. R EV. 87, 96-97 (1993) (“Modern constitutional theory still responds
to the protection of individual rights and the avoidance of Lochnerism as its central dynamic.”); see
genera lly Felice Batlan, A Reevaluation of the New York Court of Appea ls: The H ome, th e Mar ket,
and Labor, 1885-1905, 27 L. & S OC. INQUIRY 489, 492 (2002 ) (“Lochner seems to exercise a certain
hypnotic fascination for many historians and constitutional scholars.”).
4
See, e.g., College Savings B ank v. Florida Pre paid Post S econdary Ed uc. Expen se Bd., 527 U.S.
666, 690 (19 99) (“w e mus t comm ent upon Justice B reyer’s com parison o f our dec ision today wit h
the discredited substantive-due-process case of Lochner v. New York . . . .”). United States v. Lopez,
514 U.S. 549, 60 1 n.9 (1995) (Thom as, J., concurring) (“Nor can the m ajority’s opinion fairly be
compared to Lochner v. New York . . .”); TXO Productions Corp. v. Alliance Resources Corp., 509
U.S. 443, 455 (1993) (Stevens, J.) (plurality opinion) (distinguishing reliance on specific sound
Lochner era precedents with relying on Lochnerian jurisprudence more ge nerally).
5
See Planned Parenthood v. Casey, 505 U.S. 833, 959-61 (19 92) (R ehnqu ist, C.J., dissenting)
(analogizing Roe v. Wade to Lochner).
6
See Dolan v. City of Tigard, 512 U.S. 374, 40 6-09 (1994) (Stevens, J., dissenting) (equating the
majority’s refusal “to identify a sufficient nexus between an enlarged building with a newly paved
parking lot and the state interests in minimizing the risks of flooding and traffic congestion” with the
Lochner Court’s refusal to presume a connection between the maximum hours regulation in that case
and the state interest in protecting the public health).
7
See United State s v. Lopez, 514 U.S. 5 49, 604 (1995) (S outer, J., dissenting) (comparing the
Court’s decision limiting the scope of the Com merce Clause to Lochner).
8
See Alden v. Maine, 527 U.S. 706, 814 (1999) (Souter, J., dissenting) ( “the Court’s late essay
into imm unity doctr ine w ill prove the equal of its earlier experiment in laissez-faire, the one being as
unrealistic as the other, as indefensible, and probably as fleeting”); Seminole Tribe v. Florida, 517 U.S.
44, 166 (1996 ) (Souter , J., disse nting) (“T he ma jority today, indeed, seems to be going Lochner one
better.”).
9
E.g., C & A C arbo ne, In c., v. Tow n of C lar k s to w n , 5 1 1 U . S . 383, 423-24 (1994) (Souter, J.,
joined by Rehnqu ist, C.J., and Blackmun , J., dissenting) (“No m ore than th e Fourtee nth Am endm ent,
the C ommerce Clause ‘does not enact Mr. Herbert Spencer’s Social Statics . . . [ or ] em body a
particular economic theory, whether of paternalism . . . or of laissez faire . . .’”), quoting Lochner v.
New Y ork, 198 U.S. 45, 7 5 (1905) (Holm es, J., dissenting).
2
Lochner’s Legacy’s Legacy
Despite—or perhaps because of— Lochner’s importance in American
constitutional consciousness, much controversy remains over just how the
Lochner Court erred. The traditional view, first expressed in Justice Oliver
Wend ell Holmes’s famous dissent in Lochner,1 0 is that the Court e xceeded its
legitimate judicia l role by reading the right of “liberty of contract” into the
Fourteen th Amendment’s Due Process Clause, despite the absence of textual
support for this right. 1 1 The Supreme Court’s liberty of contract doctrine, which
seemed to expand or contract unpred ictably, 1 2 was said to have reflected the
10
Lochner, 198 U.S. at 75 (Holmes, J., dissenting) (criticizing the Lochner majority for deciding
the case based “upon an economic theory which a large part of the country does not entertain”).
11
For such criticism during the Lochner era, see, e.g., H ERBERT C ROLY , P ROGRESSIVE D EMOCRACY
137-40 (1914) (alleging that the courts used due process to take over the policy-making function of the
legislature); V ERNON L OUIS P ARRINGTON, 3 M AIN C URRENTS IN A MERICAN T HOUGHT 118-20 (1930);
Morris R. Cohe n, The Bill of Rights Theory, 2 N EW R EPUBLIC 222, 222 (1915); Edward S. Corwin,
Book Review, 26 AM . P OL. S CI. R EV. 270, 271 (1912) (arguing that judges were under the
misimpression that the Due Process Clause of the Fourteenth Amendment gave them a “roving
commission” to “sink whatever legislative craft may appear to them to be, from the standpoint of
vested interests, of a piratical tende ncy”); Louis M . Greeley, The Changing Attitud e of the C ourts
Toward Social Legislation, 5 U . ILL. L. R EV. 222, 226 -32 (1910 ); Albert M. K ales, “Due P rocess,”
The Inarticulate Major Premise and the Adamson Act , 26 Y ALE L.J. 519, 523 (1917); Thomas Reed
Powe ll, Collective Bargaining Before the Supreme Court, 33 P OL. S CI. Q. 396, 397-42 9 (1918);
Thomas Reed Po well, The Judiciality of Minimum-Wage Legislation, 37 H ARV. L. R EV. 545, 545-46,
555-56 (1924 ); Margaret S pahr, Natural Law, Due Process and Economic Pressure , 24 A M . P OL. S CI.
R EV. 332, 332-54 (1930 ); see gen erally P AUL K ENS, J USTICE S TEPHEN F IELD 6 (1997) (“The C ourt’s
critics claim ed th at jud ges h ad co nstru cted thes e the ories from thin a ir, tha t liberty of contract and
substantive du e process w ere not based on the word s of the Cons titution.”).
For mode rn criticism of the Lochner era Suprem e Court along trad itional lines, see, e.g., R OBERT
B ORK, T HE T EMPTING OF A MERICA 36-49 (1990) (arguing that the Cou rt had no authority under the
Constitution to invalidate economic legislation under the Due Pro cess Clause); J OHN H ART E LY ,
D EMOCRACY AND D ISTRUST : A T HEORY OF J UDICIAL R EVIEW 14-21 (1980).
Desp ite this longstanding criticism, careful scholars have known for decades that until the mid1920s, well into the Lochner era, the Supreme Court rarely invalidated legislation under the Due
Process Clause. Even at the height of the Lochner era in the lat e 192 0s, th e Su prem e Co urt u pheld
most regulatory laws challenged under the Due Process Clause. See L OREN P. B ETH, T HE
D EVELOPMENT OF THE A MERICAN C ONSTITUTION, 1877-1910, at 190 (1971) (“the cases are marked
by hesitance, am biguity, ind ecisivene ss, and inconsis tency, and in fact m any mo re of the d ecis ions
favored the state th an the oth er way aro und”); Ray A. Brown, Due Process of Law, Police Power, and
the Supreme Court, 40 H ARV. L. R EV. 943, 944-45 (1927); Joseph Gordon Hylton, Prelude to Euclid:
The United States Supreme Court and the Constitutionality of Land Use Regulation, 1900-192 0, 3
W ASH. U . J. L & P OL’ Y 1 (200 0); Michael J. Phillips, The Progressiveness of the Lochner Court, 75
D ENV. U . L. R EV. 453, 453 (1998); M elvin I. Urofsky, Myth and Reality: The Supreme Court and
Protective Legislation in the Progressive Era, 1983 S UP . C T . H IST. S OC’ Y Y.B. 53, 69-70 [hereinafter,
U rofsky, M yth and R eality ]; Charles W arren, T h e Pr o g re s si v en e ss o f t h e U n i te d S ta t es S u pr e m e
Court, 13 C OLUM . L. R EV. 294, 2 95 (19 13); cf. Melvin I. Urofs ky, State Courts and Protectiv e
Legislation During the Progressive Era: A Reevaluation, 72 J. A M . H IST. 63, 64 (1985) [hereina fter,
U rofsky, State Co urts ] (concluding that state courts’ willingness to invalidate legislation during the
Lochner era has also been greatly exaggerated).
12
For exam ple, ma ny com menta tors thoug ht that Lochner was overruled sub silen tio in cases such
as B untin g v. O regon , 243 U.S . 426 (191 7), w hich uph eld a m axim um hour s law that a pplie d to all
industrial workers. E.g., Adkins v. Children’s Hospital, 261 U.S. 525, 564 (1923) (T aft, C.J.,
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3
Bernstein
Justices’ personal ideological b iases. 1 3 This unde rstanding of Lochner remained
widespread in academ ia 1 4 until the 1987 hearings on Robert Bork’s nomination
dissenting) (“It is impossible for me to reconcile the Bunting Case and the Lochner Case, and I have
always supposed that the Lochner Case was thus overruled sub silen tio”); 3 CHARLES W ARREN, T HE
S UPREME C OURT IN U NITED S TATES H ISTORY 463 (1922 ) (conten ding th at L ochner, “if not now
prac tically overruled , is certain in the near f uture to be disregarded by the Court”); Edward S. Corwin,
Social Insurance and the Constitution, 26 Y ALE L.J. 431 , 432 (1 917) (c oncludin g that Lochner’s
“[c]onstitutional rigorism is dead”). Much to almost everyone’s surprise, the Court revived Lochner
in Adkins, 261 U.S . 525. See Samuel A. Goldberg, The Unconstitutionality of Minimum Wage
Legislation, 71 U. P ENN. L. R EV. 360, 364 (1923) (“Instead of following the policy of previous
decisions culminating in Bunting v. Oregon . . . , the Court has reverted to Lochner v. New York ,
which has alwa ys been considered an unfortunate decision and had been supposed to have been
overruled by Bunting.”); Thom as I. Parkinson, Minimum Wage and the Constitution, in THE S UPREME
C OURT AND M INIMUM W AGE L EGISLATION 148, 153 (National C o ns u m ers’ League ed. 1925)
(“[Adkins] suggests that the m ajority of the Court is disposed to return to the attitude of th e Court in
the Lochner case and to emphasize the in dividual’s right to freedom from restraint, rather than the
public welfare w hich jus tifies legislative re striction of th at freedom .”); Franc is B. Sayre, The Minimum
Wage Decision, S URVEY , May 1, 1923, at 150, reprinte d in S ELECTED A RTICLES ON M INIMUM W AGES
AND M AXIMUM H OURS 119, 124 (Egbert Ray Nichols & Joseph H. Baccus, eds. 1936) (“Many
lawyers thought that the much criticized and apparently contrary New York bakes hop decision of
1905 had long been virtually overruled . . . . The latest decision upsets any such idea.”).
13
E.g., Morehead v. N ew York ex rel. Tipaldo, 298 U.S. 587, 633 (1936) (Stone, J., dis senting)
(accusing the majority of relying on “its own personal [sic] economic predilections”); Adkins v.
Children’s Hosp., 261 U .S. 525, 562 (192 3) (Taft, C.J., dissenting) (“It is not the function of this Court
to hold congressional acts invalid simply b ecause they are pa ssed to ca rry out econ omic views which
the Court b elieves to be unwis e or uns ound.” ); F RANK J. G OODNOW , S OCIAL R EFORM AND THE
C ONSTITUTION 247 (1911) (“What the courts actually do in cases in which they declare laws of [the
Lochner] sort unconstitutional, is to substitute their ideas of wisdom for those of the legislature. . .”);
Louis D . Brandeis, The Living Law, 10 ILL. L. R EV. 461, 463 ( 1916 ) (denouncing the Court’ s
application of “19th century co nception s of the liber ty of the individual and of the sacredness of
private property”); W illiam F. Dodd , The Growth of Judicial Power, 24 P OL. S CI. Q . 193, 194 (1909)
(“The Courts have now definitely invaded the field of public policy and are quick to declare
unconstitutional almost a ny laws of whic h they disapprove, particularly in the fields of social and
industrial legislation.”); Felix Frankfurter, Hours of Labor and Realism in Constitutional Law , 29
H ARV. L. R EV. 353, 363 (1916) (criticizing Court decisions as reflecting the prevailing philosophy of
individualism); Ernst Freun d, Limitation of Hours of Labor and the Federal Supreme Court , 17
G REEN B AG 411, 413 (1905) (“there has been a marked tendency for courts to constitute themselves
into censors of the legislative power, and to nullify statutes that were contrary to their own views of
sound and free government”). For similar m ore recent criticism , see, e.g., R AOUL B ERGER ,
G OVERNMENT BY J UDICIARY: T HE T RANSFORMATION OF THE F OURTEENTH A MENDMENT 273 (1987)
(“[C] ourts substitu te[d] th eir own views of policy for those of legislative bodies.”); A LFRED H . K ELLY
& W INFRED A. H ARBISON, T HE A MERICAN C ONSTITUTION: ITS O RIGINS & D EVELOPMENT 537-38 (3d
ed. 1963); (“The result was nothing less than creation of a new type of judicial review, in which the
Court exam ined th e constitutionality of both state and federal legislation in the light of the judges’
social and economic ideas.”).
One of Lochner’s prominent defenders, The Nation, accused the dissenters in Lochner of letting
their ideological bia ses affec t their decision. Editorial, A Check on Union Tyranny, T HE N ATION, May
4, 1905, at 346, 347 (attributing the dissenters’ votes to “their general inclination towards
paternalism”).
14
See Gary Peller, The C lassical Theory of Law, 73 C ORNELL L. R EV. 300, 301 (1988) (“in the
modern legal context, Lochner is routinely critic ized bec ause the Court is s uppos ed to have imposed
its own va lues in its re ading of th e Cons titution”); Aviam Soifer , The Paradox of Paternalism and
Laissez-Faire Constitutionalism: United States Supreme Court 1888-1921, 5 L. & H IST. R EV. 249, 250
(1987) (Lochner “is still shorthand in constitutional law for the worst sins of subjective judicial
activism”).
4
Lochner’s Legacy’s Legacy
to the Supreme Court energized the debate over judicial activism. The
controversy related to those hearings firmly associated the traditional critique of
Lochner with conserv atives, amon g whom it rem ains domin ant. 1 5
Critics frequently charged the War ren and Burger Courts with Lochneristic
judicial activism.1 6 With libera ls in the majority, ho wever, the C ourt and its
defenders brushed off such criticism.1 7 By the late 1980s, many constitutional
law scholars gre w unhapp y with the traditional critique of Lochner. With the
ascendancy of a conservative majority on the Supreme Court, they recognized that
some of their most cherished Warren and Burger Courts decisions— not least, Roe
v. Wade1 8 —were vulne rable to being overruled as Lochnerian.1 9
15
See, e.g., College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S.
666, 691 (1999) (Scalia, J.) (“We had always thought that the distinctiv e feature of Lochner, nice ly
captured in Justice Holmes’s dissenting rem ark about ‘Mr. Herb ert Spencer’s Social Statics,’ was that
it sought to impose a particular econom ic philosop hy upon the Con stitution); B ORK, supra note 11,
at 44-49, 168 -69.
Not all conserva tives, and certainly not a ll libertarians, a gree that Lochner was incor rectly decided.
See B ERNARD H . S IEGAN , E CONOMIC L IBERTIES AND THE C ONSTITUTION (1980) (defending
Lochner and its progeny); Rich ard A. Ep stein, The Mistakes of 1937, 11 G EORGE M ASON U . L. R EV.
5 (1988) (arguing that the Supreme Court was wrong to abandon Lochner during the New Deal
period); Mic hael J. Phillips, Entry Restrictions in the Lochner Court, 4 G EORGE M ASON L. R EV. 405
(1996) (contend ing that Lochnerian decisions prohibiting monopolization of certain occupations were
correct); Note, Resur recting E conom ic Rights: The Doctrine of Economic Due Process Reconsidered ,
103 H ARV. L. R EV. 1363-83 (1990 ) (calling for a revival of Lochnerian jurisprudence); see gen erally
James W. Ely, Jr., Melvill e W. Fuller, 1998 J. S UP . C T . H IST. 35 (defending Lochner and other
controversial Fuller Cou rt decision s as forw ard-looking and con sistent w ith contem porary pu blic
opinion and political economy).
16
O WEN M . F ISS, T ROUBLED B EGINNINGS OF THE M ODERN S TATE, 1888-1910, at 10 (1993)
(“comparisons with Lochner were frequently made to reproach th e War ren Cou rt”); Rob ert C. P ost,
Defending the Lifew orld: Su bstantive Due P rocess in the Ta ft Court Era , 78 B.U. L. R EV. 1489, 1494
(1998) (“The ghost of Lochner has haunted efforts at aggressive judicial protection of constitutional
rights since the New Deal, even when such protection has been informed by a liberal agenda as in the
days of the Warren Court.”). For a time, m any liberal law professors believed that the traditional
critique of Lochner undermined the legitimacy of Brown v. Board of Education, 347 U.S. 48 3 (1954),
a purportedly “activist” de cision. See Gary Peller, Neutral Principles in the 1950s, 21 J.L. R EFORM
561, 564 (1988) (explaining that for many 1950s liberal academics, “opposition to Lochner demanded
opposition to Brown as a matter of integrity and principle.”).
17
The C ourt was not com pletely oblivious to the criticism , howev er, and s ometim es explicit ly
distinguished i ts d ec is io n s f ro m Lochner. See, e.g., Harper v. Va. State Bd. of Elections, 383 U.S.
663, 668 (1 966) (“We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the
Fourteenth Amendment ‘does not enact Mr. Herbert Spencer’s Social Statics.’”).
18
410 U.S. 11 3 (1973).
19
See B ORK, supra note 11, at 31-32 (arguing that modern substantive due process decisions are
linked to Lochner and s hould suffer th e sam e fate); L AURENCE H . T RIBE, A MERICAN C ONSTITUTIONAL
L AW § 7-5, at 1312 (3d ed. 19 99) ( “Even if one dis agrees with Professor [John Hart] Ely about the
constitutional indefensibility of Roe v. Wade . . . one cannot lightly dismiss his interpretive concern
that, in Roe as in Lochner the S upre me C ourt i dent ified a pur ely substantive right in a provision that
appears, to the nake d eye, to sp eak solely to m atters of pr ocedure .”); C HRISTOPHER W OLFE, T HE R ISE
OF M ODERN J UDICIAL R EVIEW 289 (1986) (contending that in Grisw old , the Court resurrected
Lochner’s doctrine for quite different purposes, while trying to deny it was doing so).
Martin Shapiro had warned a decade earlier that “those liberal commentators who a pplaud the
activism of the Warren Court would do well to remember that the economic theories of the turn-ofthe-century Cou rt we re as pub lic inte rest-o rient ed, m ore cle arly ar ticula ted, b etter s cien tifica lly
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Bernstein
Roe was espec ially difficult to distinguish from Lochner because its foundation
is a series of Warren Court privacy decisions beginning with Griswold v.
Connecticut. 2 0 Griswold , in turn, not only asserted a non-textual right of privacy,
but also relied on Lochner era civil liberties precedents. 2 1 Like Lochner itself, the
Lochner era precedents relied upon in Griswold had invalidated state laws based
on an expansive, substantive interpretation of the Fourte enth Amen dment’s Due
Process Clause.2 2 The most significant of these decisions, Meyer v. Nebraska,2 3
grounded, and show greater survival value than the sociological, psychological, and criminological
theories that shimmer just below the surface of much of what the Warren Court did.” Martin M.
Shapiro, The C onstitutio n and E conom ic Rights , in ESSAYS ON THE C ONSTITUTION OF THE U NITED
S TATES 74, 80 (1978).
20
Griswo ld v. Con necticut, 381 U .S. 479 (1965 ); see also Eisenstadt v. Baird, 405 U .S. 438 (1972);
cf. Carey v. Population Services International, 431 U.S. 678 (19 77).
21
Pierce v. Society of S isters, 268 U .S. 510 (1925 ); Meyer v. Neb raska, 26 2 U.S . 390 (1 923); cf.
Moore v. City of East Cleve land, 431 U .S. 4 94, 501 & n.8 (1 977) (distinguishing Pierce and Meyer
from other Lochner era cases on the grounds that Meyer and Pierce, unlike the cases involving
econom ic regulations, were in line with basic American traditions and have consistently been
reaffirm ed); see gen erally Jed Rub enfeld, The Right of Privacy, 102 H ARV. L. R EV. 737, 743 (1989)
(explaining that cases like Pierce and Meyer are “the true parents of the privacy doctrine”).
It should be noted that the distinction between economic and civil liberties is a modern one, not
reflected in Lochner era jurisprudence.
22
F o r c r it ic is m of the Grisw old majority for Lochnerian reaso ning, see Griswo ld v. Con necticut,
381 U.S. 4 79, 50 7 (196 5) (Black , J., disse nting) (arguin g that the p rotection of substan tive rights
und er the Due Proc ess C lause shou ld be li mite d to in corp oratin g the B ill o f Ri g ht s ); R ob e rt H . Bork,
Neutral Principles and Some First Amen dm e n t P r o bl e m s, 47 IND . L.J. 1, 9-11 (1971) (analogizing
Grisw old to Lochner). J o h n H ar t E ly famously criticized Roe as a Lochnerian decision. See John
Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Y ALE L.J. 920, 940 (1973)
(conclud ing that “ Lochner and Roe are twins”).
The phrase “substantive due process” is an anachronism when applied to the Lochner e r a. N o one,
including the Justices who typically dissented from the libertarian cases of the era, used this phra se.
See J AMES W . E LY , J R., T HE G UARDIAN OF E VERY O THER R IGHT : A C ONSTITUTIONAL H ISTORY OF
P ROPERTY R IGHTS 103-04 (2 d ed. 1998 ); James W . Ely, Jr., Reflections on Buchanan v. Warley,
Property Rights, and Race, 51 V AND. L. R EV. 953, 956 (1998 ); Rowe, supra note 3, at 244. Morton
Horw itz argues that attacks on the substantive aspect of due process were “largely produced by later
critical Progressive historians intent on delegitimating the Lochner court.” See M ORTON J. H ORWITZ,
T HE T RANSFORMATION OF A MERICAN L AW , 1870- 1960: T HE C RISIS OF L EGAL O RTHODOXY 158
(1992). Some co ntem poraries of the Lochner era Court, however, did argue that the Due Process
Clause of the Fourteenth A mendm ent only applied to proce dural controversies . E.g., 2 L OUIS B .
B OUDIN , G OVERNMENT BY J UDICIARY? 374-96 (1932); E DWARD S. C ORWIN , C OURT O VER
C ONSTITUTION 107 (1938) (claiming that the original interpretation of the Due Process Clause was
limited to ensuring a fair trial for accused persons); E DWARD S. C ORWIN , T HE T WILIGHT OF THE
S UPREME C OURT : A H ISTORY OF O UR C ONSTITUTIONAL T HEORY 68-69 (1934) [hereinafter, C ORWIN ,
T WILIGHT ]; Edward S. Corwin, The Supreme Court and the Fourteenth Amendment, 7 M ICH. L. R EV.
643 (1909), reprinte d in 2 C ORWIN ON THE C ONSTITUTION: T HE J UDICIARY 123, 146 (Richard Loss,
ed. 1987) (“the moment the Cou rt, in its interpretation of the Fourteenth Amendment, left behind the
definite, historical concept of ‘due process of law’ as having to do with th e enforcement of law and
not its making . . . that mom ent it comm itted itself to a course that wo uld bound to lead . . . into that
of legislative power which determines policies on the basis of facts a nd des ires”) (em phasis in
original); see also C HARLES G ROVE H AINES, T HE R EVIVAL OF N ATURAL L AW C ONCEPTS ch. 5 (1930)
(discussing due pro cess); Charles E. Shattuck, The True Meaning of the Term “Liberty” in the
Federal and State Constit utions Wh ich Protect “ Life, Liberty, an d Proper ty,” 4 H ARV. L. R EV. 365
(1891) (presen ting an ea rly and influe ntial critique of the vie w t ha t th e D ue Proces s Clause protects
anything but procedu ral rights); Charles W arren, The New “Liberty” Under the Fourteenth
Amendment, 39 H ARV. L. R EV. 431, 440 (1926). For a contemporary work arguing that the Court was
6
Lochner’s Legacy’s Legacy
explicitly relied on the Lochner line of cases. Lib erals are particularly protective
of Griswold because if the Supreme Court eve r overrules Bowers v. Hardwick 2 4
and articulates a right to engage in ho mosexua l sex, it will likely do so by relying
on its prior privacy rulings, as the dissenters did in Bowers .2 5
“Lochner remains an u nnerving pr esence,” R obert Po st writes, reflecting current
sentiment, “because we do not have a convincing account of the criteria by which
our own aspirations to preserve constitutional rights should be compared to, and
therefore distinguished from, what has become a paradigmatic example of judicial
failure.” 2 6 Discomfo rt with the traditiona l critique of Lochner has led to
something of a cottage industry of Lochner reinterpretation among constitutional
law scholars. 2 7
Owen Fiss, for example, argues that the Lochner Court eng aged in a co herent,
albeit ideologically misguided, effort to enforce an economically libertarian vision
of the Constitution based on social contract the ory. 2 8 Fiss concludes that
“Lochner stands for both a distinctive body of constitutional doctrine and a
distinctive conception of judicial role: One cou ld reject on e facet of Lochner and
accept the other. . . . [W]e may wish to criticize its substantive values and yet
leave unimpeac hed its conc eption of ro le.” 2 9 Political scientist Howard Gillman,
meanwhile, contends that the Lochner era Court, relying on currents in American
ideology flowing from the Founding an d Jacksonian eras, soug ht to restrict “class
legislation,” i.e., “attempts by c ompeting classes to use p ublic pow er to gain
correct in its due process jurisprudence, see R ODNEY L. M OTT , D UE P ROCESS OF L AW (1926). For a
recent review of the current status of the controversy over the meaning of the Due Process Clause, see
James W. Ely, Jr., The O xymo ron Re consid ered: M yth and Reality in the Origins of Substantive Due
Process, 16 C ONST . C OMM. 319 (1997).
23
262 U.S. 390, 399-400 (1923).
24
478 U.S. 18 6 (1986).
25
See id. at 214 (Black mun , J., disse nting); id. at 216-17 (Stevens, J., dissenting). In December
2002, the Cou rt granted certio rari in a case challenging Texas’s criminal sodomy law. Law rence v.
Texas, 41 S.W. 3 d 349 (Te x. App. 2 001), cert. granted, 71 U.S.L.W . 3116 (U.S. D ec. 2, 2002).
26
Post, supra note 16.
27
See infra notes 28 to 51 and accom panying te xt; see gen erally B ARBARA H . F RIED, T HE
P ROGRESSIVE A SSAULT ON L AISSEZ F AIRE: R OBERT H ALE AND THE F IRST L AW AND E CONOMICS
M OVEMENT 207 (199 8) (“ It has b een a pere nnia l prob lem f or left libera l political theorists over the
past forty yea rs . . . to explain why the Court is not merely engaged in that most dread of all pursuits,
“Lochnerizing”. . . when, for example, it overturns state antiabortion laws or mandates school
desegregation.”).
At least one scholar still denies that the traditional view of Lochnerism as motivated by conservative
judges seek ing to cons titutio nalize their pro-la issez -faire ideolo gical p redilectio ns is in need of any
substantial revision. See Paul Kens , Dawn of the Conservative Era , 1995 J. S UP . C T . H IST . 1; Paul
Kens, Lochner v. New York: Rehabilitated and Revised, But Still Reviled, 1997 J. S UP . C T . H IST. 31.
Barry Friedman argues that regardless of what the Justices of the Lochner era Supreme Court thought
they were doing, many observers at the time believed that the Supreme Court was imposing the
Justices’ ideology on the Constitution. This belief undermined judicial legitimacy, which depends
in large part on popular acceptance of Suprem e Court decisions. Barry Friedman, The History of the
Countermajoritarian Difficulty, Part T hree: T he Les son of Lochner, 76 N.Y .U. L. R EV. 1383 (2001).
28
F ISS, supra note 16, at 12 (“the Fuller Court should be understood as an institution dev oted to
liberty and de termin ed to prote ct that partic ular cons titutional idea l from the social m oveme nts of the
day”).
29
Id. at 19.
SPRING 2003
7
Bernstein
unfair or unnatural advantage s over their m arket adve rsaries.” 3 0 The mistake of
the Lochner Court, according to Gillman, was the failure to understand that its
opposition to class legislation was anachronistic in an industrializing society riven
by significant class conflict. In such a society, political organization around
common class interests was both necessary and appropriate. Bruce Ackerman,
trumping other revision ists, suggests that Lochner may have been correctl y
decided. Ackerman writes, “The Lochner Court was . . . interpreting the
Constitution, as handed down to them by the Republicans of Reconstruction.
Lochner is no longer good law because the American people repudiated
Republican constitutional values in the 1930s, not because the Court was wildly
out of line with them before the G reat Dep ression.” 3 1
Fiss, Gillman, Ac kerman, an d other sch olars effectively parry the conservative
critique of Roe and like-minded decisions as Lochnerian.3 2 These re visionists
agree that the Lochner era Justices were trying to preserve liberty, as they
understood it, from government encroachment. 3 3 The Lochner era Court, they
argue, chose an appro priate role for the Court— defender of last reso rt of
fundamental rights.3 4 However, from a modern perspective, the Court chose the
wrong rights to emphasiz e. The problem, the revisionists argue, is that the
Justices did not und erstand that so cial and eco nomic changes brought about by
the Industrial Revolution rende red anach ronistic their vision of liberty. 3 5 This
30
H OWARD G ILLMAN , T HE C ONSTITUTION B ESIEGED: T HE R ISE AND D EMISE OF L OCHNER E RA
P OLICE P OWERS J URISPRUDENCE 11, 61 (1993).
31
A CKERMAN , supra note 2, at 280. Ackerm an was m ore tentative in his prev ious book. “ Lochner
might have be en cons titutionally plaus ible in 190 5; it was only in the 193 0s th at the Am erica n peo ple
deci sively repudiated the principles of laissez faire.” 1 B RUCE A CKERMAN , W E THE P EOPLE :
F OUNDATIONS 66 (1991).
32
On the other hand, their argument that Lochner did not involve illegitimate judicial activism per
se provides an open ing for liberta rian sch olars to argu e that econ omic libe rty is as impor tant as civil
liberties, and tha t Lochner was therefore correctly decided. See supra note 15 (listing sources that
argue tha t Lochner was correctly decided).
33
For another example of this perspective, see L AWRENCE M . F RIEDMAN , A MERICAN L AW IN THE
20 TH C ENTURY 24 (2002). Friedman writes: “In short, the justices, and judges in general, were
cautious and incremental. They did not consistently adhere to any economic philosophy. They sim ply
reacted in the way that respectable, moderate conservatives of their day would naturally react. Hence
it is perha ps a bit u nfair to judge them by what history has come to call mistakes.” Id. For a similar
perspe ctive on the early Lochner e r a f ro m a more conservative scholar, see J AMES W . E LY , J R., T HE
C HIEF J USTICESHIP OF M ELVILLE W . F ULLER , 1888-1910 (19 95).
34
“By freeing us from excessive worries about the legitimacy of judicial review, revisionism
promises to direct our attention to more fruitful and creative jurisprudential endeavo rs. It makes
possible, at long last, constitutional thinking that need not [perform] strenuous backflips to distance
i ts e lf fr o m ‘Lochner’s error.’” Row e, supra note 3, at 242.
35
See L AURENCE H . T RIBE, A MERICAN C ONSTITUTIONAL L AW 1374 (2d ed. 19 88) (“Lochner’s
dow nfall did not re presen t a denigra tion of econ omic libe rties but a recognition that such liberties
were not meaningfully protected by the ‘free’ market”); Rebecc a L. Brown, The F ragm ented L iberty
Cause, 41 W M . & M ARY L. R EV. 65, 65 (1999 ) (claimin g that Lochner revisionism sup ports her c all
for “a strong offensive charge on behalf o f vigorous libe rty protection under th e Fourtee nth
Amendm ent”); see gen erally Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833,
862 (1992) (plurality opinion) (“the Depression had come and, with it, the lessons that seemed
unmis takab le to most people by 1937, that the interpretation of contractual freedom protected in
Adkins rested on fundamentally false factual assumptions abo ut the capa city of a relat ively
unregulated market to satisfy minimal levels of human welfare”).
8
Lochner’s Legacy’s Legacy
honest error should not inhibit modern judges from using available constitutional
tools to promote a progressive agenda that suits contemporary society’s needs. 3 6
In his 1987 Columbia Law Review article, “Lochner’s Legacy,” 3 7 Cass Sunste in
provides a more critical revisionist perspective on Lochner, albeit to similar
ideological ends. Lochner’s Legacy predates the wo rk of Ackerman, Fiss , and
Gillman, and Sunste in deserves a great deal o f credit for mo ving scholarly
discussion of Lochner beyond the trite “receiv ed wisdom ” that “Lochner was
wrong because it involved ‘judicial activism’; an illegitimate intrusion by the
courts into a realm properly reserved to the political branches o f governme nt.” 38
Sunstein presents an alternative approach 39 that he claims “fits the history at
least as well” but has “dra matically differen t implications.” 4 0 He argues that the
Lochner era Court’s primary fallacy was the Justices’ belief that “[m]arket
ordering under the common law was part of na ture rather than a legal constru ct,”
and formed a baseline from which to measure the constitutionality of state action,
rendering redistributive regula tions uncon stitutional. 4 1 As discussed in greater
detail below,4 2 Sunstein sup ports his argument largely by analyzing Lochner itself
and by comparing language in the Court’s opinion in Adkins v. Children’s
Hospital, 4 3 which invalidated a minimum wage law for women, with the
36
Perhap s the pion eer of this w ay of looking a t Lochner is Laurence T ribe. See L AURENCE T RIBE,
A MERICAN C ONSTITUTIONAL L AW 564 (1978) (“the error of [Lochner] lay not in judicial intervention
to protect ‘libe rty’ but i n a misgu ided un derstan ding of w hat liberty actu ally required ”); cf. Rebecca
L. Brown, Activism is Not a Four-Letter Word, 7 3 U . C OLO . L. R EV. 1257, 1265 (2002) (arguing that
the Lochner Court’s mistake was to see the question of individual liberty “through the lens of an
outdated and i nflex ible notion of what th e comm on good entailed”); M anuel Cach án, Justice Stephen
Field and “Free Soil, Free Labor Constitutionalism”: Reconsidering Revisionism, 20 L. & H IST. R EV.
541, 549-50 (2002) (“The revisionist narrative at times appears to be peopled by clueless historic al
actors being relentlessly swep t along by ideological currents th at, despit e their unanimous [sic?]
influence on contemporaries, did not correspond to social reality.”).
Justice Dav id So uter h as of fered a sligh tly different take on the same theme, arguing that Lochner
was correct to apply the Due Process Clause to prohibit arbitrary legislation, but was wron g to ap ply
a version of review that was reminiscent of Dred Scott in its absolutism and though tless devotio n to
econom ic rights. By contrast, Meyer and Pierce v. Society of Sisters, 268 U.S. 510 (1925), the leading
Lochner era precedents cited favorably in Grisw old , properly applied heightened scrutiny to truly
important interests. Washington v. Glucksberg, 52 1 U.S. 702, 7 60-62 (1997) (Sou ter, J., concurring);
see also G ERALD G UNTHER & K ATHLEEN S ULLIVAN , C ONSTITUTIONAL L AW 467 (13th ed. 1997)
(stating that the Lochner Court was correct to adopt a broad definition of liberty, but should have been
far more deferential to legislatures on economic m atters). As w e sha ll see, a nd w ith all due res pect to
Justice Souter, the idea that the Lochner era Court w as “abs olutist” in en forcing libe rty of contrac t is
absurd, see infra notes 176 to 196 and acc ompanying text (d iscussing the many infringem ents on
liberty of contract the Lochner Court upheld).
37
Cass R. Sunstein, Lochner’s Legacy, 87 C OLUM . L. R EV. 873 (198 7).
38
Id. at 874.
39
In The Partial Constitution, by contra st, Sun stein is more s ympath etic to the trad itional accou nt,
stating “that part of what was wrong with the Lochner period was indeed the aggressiveness of the
Court.” C ASS R. S UNSTEIN , T HE P ARTIAL C ONSTITUTION 45 (1993).
40
Sunstein, supra note 37, at 874 n.9.
41
Id. at 874. For a sim ilar analysis, see Gary P eller, Neutral Principles in the 1950s, 21 J.L.
R EFORM 561, 565 (1988 ).
42
See infra notes 23 6 to 283 and acc ompa nying text.
43
261 U.S. 52 5, 557 (1923).
SPRING 2003
9
Bernstein
reasoning of West Coast Hotel v. Parrish,4 4 which reversed Adkins and is widely
seen as signaling the end of the Lochner era.4 5
Like other revisionists, Sunstein argues that his understa nding of Lochner saves
Roe v. Wade and other Warren and Burger Court decisions from the charge that
they are Lochner’s illegitimate offspring. Sun stein also cleverly ar gues that his
understanding of Lochner calls into question decisions interpreting the First
Amendment and the Fourteenth Amendment expansively to serve what he
considers conservative ends. 4 6 In his later books that elaborate on Lochner’s
Legacy, Sunstein focuses much of his criticism on Buckley v. Valeo,4 7 in which
the Court held that campaign donations are a form o f speech protected b y the First
Amend ment. 4 8 In addition to Buckley, Lochner’s Legacy also criticizes, among
44
300 U.S. 37 9 (1937).
Barry Cus hman, h owever, persuasively argues that the death knell of Lochner, at least in its
aggressive form, was actually sounded three years earlier in Nebbia v. New York , 291 U.S. 50 2 (1934),
which uph eld re gulati on of milk prices. See B ARRY C USHMAN , R ETHINKING THE N EW D EAL C OURT :
T HE S TRUCTURE OF A C ONSTITUTIONAL R EVOLUTION (1998). On the other hand, even the West Coast
Hotel majority continued to accept certain Lochnerian prem ises, see infra notes 271 to 278 and
accompanying text, and the final end of the Lochner era d id no t arriv e unt il seve ral Ro osev elt
appointees joined the Court and formed a majority that entirely rejected Lochnerian reasoning. Id.;
see generally Alan J. M eese, Will, Judgment, and Economic Liber ty: Mr. Justice Souter and the
Mistranslation of the Due Process C lause, 41W M . & M ARY L. R EV. 3, 41 (1999) (noting th at West
Coast Hotel did not overrule Lochner or any liberty of occupation case not involving a n at te m pt to
require em ployers to pay a subs istence wage).
In fairness to Suns tein, it shou ld be noted that Cushman’ s analysis was published over a decade
after Lochner’s Legacy appeared.
46
One of the great turnabouts of recent constitutional history has been th at Supreme C ourt
decisions broadly protecting freedom of speech from government interference are now considered
“conservative.” See, e.g., M ARK A. G RABER , T RANSFORMING F REE S PEECH: T HE A MBIGUOUS L EGACY
OF C IVIL L IBERTARIANISM 187-215 ( 1991); Jack M. Ba lkin, Some Realism About Pluralism: Legal
Realist Approaches to the First Amendment, 1990 D UKE L.J. 375, 38 7; Owen M. F iss, Free Speech
and Social Structure, 71 IOWA L. R EV. 1405 , 1410 -11 (19 86); M orton J. Hor owitz, Foreword--The
Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 H ARV. L. R EV. 32,
109-16 (1993); Fran k I. Michelm an, Conc eptions of Dem ocracy in Am eric an Const itutional
Argum ent: The Case of Pornography Regulation, 56 T ENN. L. R EV. 291, 291 (1989). For discussions
of this phenomenon, see Kathleen M. Sullivan, Discrimination, Distribution and Free Speech, 37
A RIZ . L. R EV. 439, 439 (1995); Joh n O. M cGinnis, The Left vs. Free Speech, C OMMENTARY, Oct.
1994, at 39; see gen erally D AVID E. B ERNSTEIN , Y OU C AN ’ T S AY T HAT ! H OW THE G ROWTH OF
A NTIDISCRIMINATION L AWS T HREATENS C IVIL L IBERTIES ch. 2 ( forthcoming 2003) (discussing the
growing reluctance of American liberals to support freedom of speech).
Sullivan notes that left-liberal solicitude for free speech arose in part because the great free speech
cases for most of the twentieth century involved left-wing constituencies under assault from th e
governm ent. Anarchists, communists, labor organizers, socialists, syndicalists, pacifists , and civil
right activists all benefitted from the First Am endme nt. Sullivan, supra. Today, by contra st, “speech
cases are often w on by corp orations, th e med ia, and othe r power ful insider s. . . . Pow erful private
actors, such as pornographers an d the media, are free to control, suppress, and distort the speech of
others, and whe n they do, political process es cannot red ress it.” Mary B ecker, T h e Le g it im acy of
Judicial Review in Speech Cases, in T HE P RICE W E P AY : T HE C ASE A GAINST R ACIST S PEECH, H ATE
P ROPAGANDA, AND P ORNOGRAPHY 208 (Laura Lederer & R ichard Delgado, eds. 1995).
47
424 U.S. 1 (1 976).
48
See, e.g., C ASS R. S UNSTEIN , F REE M ARKETS AND S OCIAL J USTICE 229 (1997) [hereina fter,
S UNSTEIN , F REE M ARKETS]; (“On the view reflected in both Buckley and Lochner, reliance on free
marke ts is governm ent neu trality and gov ernm ent inaction .”); C ASS R. S UNSTEIN , D EMOCRACY AND
THE P ROBLEM OF F REE S PEECH 97 (1993) [hereinafter, S UNSTEIN , D EMOCRACY] (“both cases accepted
45
10
Lochner’s Legacy’s Legacy
other cases, Washin gton v. D avis 4 9 for requiring discriminatory intent before
courts may deem a law with discriminatory effects on minorities a violation of the
Equal Protection Clause, and Regen ts of the Un iversity of California v. Bakke,5 0
for outlawing racial quotas in public universities. Sunstein conten ds that these
opinions—and not cases such as Brown v. Board of Education or Roe v. Wade,
the traditional bugaboos of Warren and Burger Court critics—are Lochner’s true
progeny. Sunstein argues that the decisions he criticizes, like Lochner, rely on an
inappro priate baseline that accepts existing distributions of wealth as natural and
prelegal. These decisions, ac cording to Sunstein, imp licitly fail to recognize that
the status quo is itself a product of legal and po litical choices.5 1
Lochner’s Legacy is a short article—at least by law review standards—and
Sunstein devotes only ten pages o f it to his historical understanding of Lochner.
The rest of the paper discusses his normative critique of the Lochner-like
premises he claims to find in modern co nstitutional jurisprudence. However,
Sunstein’s brief historical analysis struck a chord among constitutional law
scholars. Lochner’s Legacy quickly became by far the most influential revisionist
work on Lochner, 5 2 at least among law professors. 5 3 Indeed, Lochner’s Legacy
is one of the most influential constitutional law articles of the last twenty years.
existing distributions of resources as prepolitical and just, and both cases in validated d emoc ratic efforts
at reform”).
49
426 U.S. 29 9 (1976).
50
438 U.S . 265 (197 8).
51
Sunstein, supra note 37, at 883-902. For a com plementary an alysis, see Peller, supra note 16,
at 576-77.
52
According to a Westlaw search in the JLR database con ducted on July 15, 2002, G illman’s
Constitution Besieged has been cited in law reviews 129 times, Fiss’s Troubled Beginnings has been
cited 98 times, Paul Kens’s book and articles on Lochner have be en cited fif ty times in law reviews.
and Sunstein’s Lochner’s Legacy has been cited 341 times, a number which, as we shall presently see,
underestimates the influence of the argumen ts in Lochner’s Legacy. For an example of Sun stein’s
influence, see Richard E. Levy, Escaping Lochner’s Shadow: Toward a Coherent Jurisprudence of
Econo mic Rights , 73 N.C.L. Rev. 329, 390-91 (1995) (stating that “Lochner era jurisprudence rested
on the incorporation of common-law property and contract rights as a prepolitical, natural-la w
baseline,” and citing only Sunstein in support). Many other sim ilar examples where Sunstein’s
interpretation of Lochner is taken as gospel could be provided.
53
The far smaller group of constitutional historians tend to favor more historical and less normative
works of Lochner revisionis m, inc luding bo oks and article s by Ph.D. historians who teach at law
schools, though even they frequently cite Sunstein. Works of Lochner revisionism by Ph.D. historians
include C USHMAN , supra note 45; E LY , supra note 33; Ben edict, supra note 2; William E. Forbath,
The Ambiguities of Free Labor: Labor and the Law in the Gilded Age, 1985 W IS. L. R EV. 767, 782-86;
Alan Jones, Thomas M. Cooley and “Laissez-Faire Constitutionalism”: A Reconsideration, 53 J. A M .
H IST. 751 (196 7); Charles W . McC urdy, The Roots of “Liberty of Contract” Reconsidered: Major
Premise s in the Law of Employment, 1867-1937, 1984 S UP . C T . H IST. S OC’ Y Y.B. 20, 24-26
[hereinafter, McC urdy, Roots ]; Charles W. McCurdy, Justi ce Field and the Jurisprudence of
Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism , 1863-1897,
61 J. A M . H IST. 970 (197 5) [hereinafter, M cCurdy, Justice F ield]; William E. Nelson, The Impact of
the Antislavery Movement Upon Styles of Judicial Reasoning in Nineteenth Century America, 87
H ARV. L. R EV. 513, 558 -60 (1974 ); Post, supra note 16. Gillman is a political scie ntist, not a
historian, but his book, The Constitution Besieged, is a respected scholarly account of the history of
the Lochner era. See gen erally G. E DWARD W HITE , T HE C ONSTITUTION AND THE N EW D EAL 21-29
(2000) (review ing the revisionist literature from a historian’s pers pective).
SPRING 2003
11
Bernstein
The article has bee n cited in law rev iews well over three hundr ed times, mo stly
for its historical thesis. Moreover, the themes developed in Lochner’s Legacy
appear in many of Sunstein’s other, well-cited5 4 books 5 5 and articles, 5 6 and are
especia lly prominent in The Partial Constitution,5 7 which has also been cit ed
hundreds of times. Sunstein’s ideas ab out Lochner also appear in his popular
coauthored constitutional law casebook,5 8 thus directly influencing the next
generation of attorneys, law professors, and judges. Even authors such as
Ackerman and Gillman, who have original perspectives on Lochner, acknowledge
debts to Sunstein’s work.5 9
Lochner’s Legacy’s influence can also be seen in the pages of the United States
Reports . As conservative and liberal Justices continue to battle over the meaning
of Lochner and its significance for modern constitutional jurisprudence,6 0 the
liberals have adopted Lochner’s Legacy’s thesis. For example, in Seminole Tribe
of Florida v. Florida, Justice Souter, dissenting, joined by Justices Ginsburg and
Breyer, wrote:
54
Sunste in is the m ost-c i te d la w professor in the United States. Brian Leiter, Most Cited Law
Faculty, <http://www.utexas.edu/law/faculty/bleiter/rankings/most_cited.html> (visited July 22,
2002).
55
E.g., C ASS R. S UNSTEIN A FTER THE R IGHTS R EVOLUTION 19-20, 147-48, 211 (1990) [hereina fter,
S UNSTEIN , R IGHTS R EVOLUTION]; S UNSTEIN , D EMOCRACY, supra note 48, at 97; S UNSTEIN , F REE
M ARKETS, supra note 48, at 229-30.
56
E.g., Cass R. S unstein, The B eard T hesis an d Fran klin Roo sevelt , 56 G EO . W ASH. L. R EV. 114,
120-22 (1987); Cass R. Sunstein, Beyond the Republican Revival, 97 Y ALE L.J. 1539, 1580 (19 88);
Cass R. Su nste in, Free Speech Now, 5 9 U . C HI. L. R EV. 255, 264-65 (1992) [hereinafter, Sunstein,
Free Speech]; Cass R. Sunstein, Legal I nterfere nce with Private Preferences, 5 3 U . C HI. L. R EV. 1129,
1129-30 (1986); Cass R. Suns tein, Naked Preferences and the Constitution, 84 C OLUM . L. R EV. 1689,
1701 (1984) [h ereinafter, Sun stein, Naked Preferences]; Cass R . Sunstein, Political Equality and
Unintended Consequences , 94 C OLUM . L. R EV. 1390, 1397-98 ( 1994); C ass R. Su nstein, Standing and
the Privatization of American Law , 88 C OLUM . L. R EV. 1432, 1435 n.1 2 (1988).
57
S UNSTEIN , supra note 39.
58
G EOFFREY R. S TONE, ET AL ., C ONSTITUTIONAL L AW 721, 723 (4th ed. 2002). For another
casebook that adopts Sunstein’s theory of Lochner, see D ANIEL A. F ARBER , ET AL ., C ONSTITUTIONAL
L AW : T HEMES FOR THE C ONSTITUTION’ S T HIRD C ENTURY 425 (2d ed. 199 8).
59
A CKERMAN , supra note 2, at 365 (contending that to the Lochner Court, “the market operated
as a prepolitical baseline establishing basic entitlements” and citing Sunste in); G ILLMAN , supra note
30, at 227 n.12 (citing Sunstein’s work as a precursor to his own). Similarly, one of the best
revisionist articles on Lochner, written by a prominent legal historian, gratu itous ly states in a f ootnote
that the author is not denying Sunstein’s point th at Lochnerians “shared the goal of preventing the
emergent regulatory s ta te f ro m becoming a redistributionist state.” Stephen A. Siegel, Lochner Era
Jurisprudence and the American Constitutional Tradition, 70 N.C .L. R EV. 1, 21 n .90 (19 91); cf.
F RIEDMAN , supra note 33, at 19 (arguing that the Court’s opinion in Coppage v. Kansas, 236 U.S. 1
(1915), was “designed to freeze the status quo—to sanctify if not the distribution of wealth and
income itself, then at least the structures that led to that distribution”).
Desp ite Gillman’s acknowledgment of Su nstein, and the much greater detail of Gillman’s historical
work on Lochner, a reviewer criticized Gillman for being insufficiently Sunsteinian. See C. Ian
Anderson, Book Review (reviewing The Constitution Besieged), 92 M ICH. L. R EV. 1438, 1441 (1994)
(“Unf ortunately, Gillman never adequately follows up on the free-market implications of these
statem ents or their affinity with views expressed by other commentators [namely, Sunstein] that the
Lochner-era Justices’ reliance on the com mon law and affir manc e of the sta tus quo w as in effe ct a
form of laissez-faire c onstitutionalism.”).
60
See supra notes 4 to 9, and a ccom panying te xt.
12
Lochner’s Legacy’s Legacy
It was the defining characteristic of the Lochner era, and its
characteristic vice, that the Court treated the common-law background
(in those days, co mmon-law property rig hts and con tractual auton omy)
as paramount, while regarding congressional legislation to abroga te the
common law on these economic matters as constitutiona lly suspect. See,
e.g., Adkins v . Children ’s Hospita l of D.C ., 261 U.S. 525, 557 (1923)
(finding abrogatio n of comm on-law freed om to contract for any wage an
unconstitutional “compulso ry exaction” ); see gene rally Sunstein,
Lochner’s Legacy, 87 Colum. L. Rev. 873 (1987). And yet the
superseding lesson that seemed clear after West Coast Hotel Co. v.
Parrish, 300 U.S. 379 (1937), that action within the legislative pow er is
not subject to greater scrutiny merely because it trenches upon the case
law’s ordering of economic and social relationships, seems to have been
lost on the Co urt. 6 1
In College Savings Bank v. Florida Prepa id Postsecond ary Educa tion Expense
Bd., 6 2 meanwhile, Justice Breyer, dissenting, joined by Justices Stevens, Souter,
and Ginsburg , implicitly adop ted Sunstein’s a rgument that Lochner’s primary sin
was constitutionalizing the common law at the expense of progressive reform.
Breyer argued that “[b]y interpreting the Constitution as renderin g immu table this
one common-law doctrine (sovereign im munity), Seminole Tribe threatens the
Nation’s ability to enact economic legislation needed for the future in much the
way that Lochner v. N ew York threatened the Nation’s a bility to enact social
legislation over 90 ye ars ago.” 6 3 Justice Scalia, speaking fo r the five-vote
majority, responded with the once-standard, but now primarily conservative,6 4
understanding of Lochner’s mistake: “We had always thought that the distinctive
feature of Lochner, nicely captured in Justice Holmes’s dissenting remark about
‘Mr. Herbert S pencer’s Social Statics,’ was that it sought to impose a particular
econom ic philosop hy upon the Constitution.” 6 5
61
517 U.S. 44, 166 (1996) (Souter, J., dissenting).
527 U.S. 66 6 (1997).
63
Id. at 701 (Breyer, J., dissenting) (citation omitted , emp hasis su pplied); cf. Planned Parenthood
of Southeast Pennsylvania v. Casey, 505 U.S. 833, 862 (1992) (plurality opinion) (like Sunstein,
treating Adkins v. Child ren’s H ospital as the paradigmatic exam ple of Lochner era jurisprudence).
In 1980, Thurgo od M arshall wro te that dur ing the “era of Lochner v. New York . . . common-law
rights were . . . found immune from revision by State or Federal Government.” PruneYard Shopping
Center v. Robins, 447 U.S. 74, 93 (1980) (Marshall, J., concurring). Marshall provides no citations,
so it is not clear h ow he c ame to th is conclus ion, espe cially becaus e in the pr eceding paragrap h of his
opinion he cites Lochner era cases for the proposition that legislation may change common law rules.
At first glance, Marshall’s opinion seems to suggest that the idea that Lochner was about preserving
common law ruless was prevalent before Lochner’s Legacy . On second glance, it is in triguing to n ote
that Sunstein was Marshall’s clerk in 1980, see A MERICAN A SSOCIATION OF L AW S CHOOLS, T HE
AALS D IRECTORY OF L AW T EACHERS 2000-2001, at 1032 (2000). Justice Marsh all’s pape rs, av ailable
at the Library o f Congr ess, do n ot reveal wh ether Su nstein d rafted this opinion. A n inquir y sent to
Profess or Sun stein wa s met w ith a plea of c onfiden tiality.
64
See supra notes 10 to 15, an d accom panying te xt.
65
College Savings Bank, 527 U.S. at 691.
62
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13
Bernstein
Despite a deluge of historical scholarship regarding Lochner since Lochner’s
Legacy appeared sixteen years ago,6 6 Sunstein’s views are unaltered.6 7 Lochner’s
Legacy is still consistently cited by legal scholars68—not to mention Supreme
Court Justices6 9 — for the proposition that the Lochner era Supreme Court banned
the governm ent from alterin g commo n law entitlements or patterns of wealth
distribution.
What is remarkab le about Lochner’s Legacy’ s massiv e influence is ho w little
evidence Sunstein provides for his historical thesis. Other than Lochner itself,
Sunstein cites only seven of the hundre ds of relevan t Lochner era cases. 7 0 Of
these seven cases, he relies primarily on West Coast Hotel v. Parrish, a 1937 case
upholding a state minimum wage law for women, and Adkins v . Children’s
Hospital, a 1923 case inva lidating such a law, to support his thesis. Even then,
Sunstein only discusses a small part of each case, quoting only one paragraph
from each opinion, an d he interpre ts that material in a m isleading way. 7 1
Some readers might question whether a lengthy critique of Su nstein’s account
of Lochner is worthwhile. After all, they might argue, Sunstein only uses
Lochner to make a broader theoretical point, that constitutional interpretation
should not rely on “government inaction” or “existing common law distributions
of wealth” as a baseline. The value of this important contribution to constitutional
theory does not se em to dep end on wh ether Sunstein ’s interpretation of Lochner
is correct.
There are two persuasive responses. First, Sunstein purports to present an
accurate interpretation of the history of the Lochner era,7 2 and both judges and
legal scholars hav e accepte d his claims at fac e value. Given the importance of
Lochner in modern constitutional debate,7 3 correcting Sunstein’s erro rs is
worthwhile. Second , Sunstein’s critiqu e of Lochner is crucial to winning
acceptance for his argument that modern “conservative” constitutional decisions
such as Buckley v. Valeo should be condemned because they use status quo
distributions as a baseline. The obvious difficulty with this thesis is that the
Supreme Court has used the status quo as a baseline thro ughout Am erican history,
66
See the post-1987 books and articles cited in note 53.
See Cass R. S unstein, Sunstein, J., concurring in the judgment, in W HAT B ROWN V. B OARD OF
E DUCATION S HOULD H AVE S AID , 174, 182 (Jack M. Balkin, ed. 2000) (rejecting what Sunstein calls
the Lochner “view th at the system of common law ordering, and free market principles, should be
taken as a kind of neutral or prepolitical background, against which any legislative action would be
viewed with suspicion”).
68
E.g., Jim Ch en, The Second Coming of Smyth v. A mes, 77 T EX . L. R EV. 1535, 1561 n.213 (1999);
Melvyn Durch slag, Village of Euclid v. A mbler R ealty Co., Seventy-five Years Later: This Is Not Your
Father’s Zoning Ordinance , 51 C ASE W . R ES. L. R EV. 645, 646 n.296 (20 01); Gary M inda, Denial: Not
Just a River in Egypt, 22 C ARDOZO L. R EV. 901, 930 n.14 (2001); Ann Woolhandler & Michael G.
Collins, The Article III Jury, 87 V A. L. R EV. 587, 660 n.296 (2001).
69
See supra notes 61 to 65, an d accom panying te xt.
70
The cases cited by Sunstein are West Coast Hotel v. Parrish, 300 U.S. 379 (1937); Nebbia v. New
York, 291 U.S. 502 (1934); Miler v. Schoene, 276 U.S. 272 (192 8); A dkin s v. C hildr en’s Hos pital,
261 U.S. 525 (1923); Bunting v. Oregon, 243 U.S. 426 (1917); N ew York Cen t. R.R. v. White, 243
U.S. 188 (19 17); and Muller v. Oregon, 20 8 U.S. 412 (1 908).
71
See infra notes 26 2 to 283 and acc ompa nying text.
72
See supra text accompanying note 40.
73
See supra notes 2 to 9 and a ccom panying te xt.
67
14
Lochner’s Legacy’s Legacy
and to a large degree the Constitution seems to mandate th is.7 4 Sunstein
acknowledges that “in some cases it is hard to dispute that understandings like
those reflected in the common law or the status quo are the appropriate
baseline.” 7 5 The Takings and Contracts clauses, for example, assume status quo
distributions as a baseline. Sunstein adm its that it would be difficult “to abandon
those baselines alto gether without reading the contracts and takings clauses out
of the Con stitution.” 7 6
Sunstein uses Lochner as a rhetorical means out of this difficulty, by
hypothesizing that the use of common law and anti-redistributive baselines
became formalized, ossified, and inflexible during the Lochner era. The unique,
defining sin of Lochner, Sunstein claims, was that it used common law
distributions as a rigid baseline not because of interpretive convention, but
because the Justices do gmatically belie ved that co mmon law was natural,
prepolitica l, and immu table. The Court, according to Sunstein, foolishly refused
to heed criticism from Progressives and their Realist successors. They urged the
Court to stop relying o n commo n law norm s to judge the constitutionali ty of
legislation designed to ameliorate the co nditions of workers.
Thus, Sunstein implicitly links Lochner era constitution alism to equa lly
discredited Langdellian common law formalism . Although this linka ge is
historically inaccurate,7 7 Sunstein is following a longstanding tradition that dates
back to Progressive era critics o f Lochnerian jurisprudence. Like Sunstein,
Progressives, Realists, and their successors combined critiques of private law
conceptualism and aggressive judicial review—both of which developed in state
and federal co urts in the secon d half of the nine teenth century— into a single
“assault on formalism .” 7 8 Sunstein then takes the analysis a step further. He links
74
For a theoretical explanation of why such a baseline is necessary and appropriate, see Richard
A. Epstein, The U biquity o f the Ben efit Princip le, 67 S. C AL. L. R EV. 1369 (1994).
75
Sunstein supra note 37, at 903.
76
Id. at 891; see also Meese, supra note 76, at 41 (noting this problem with Suns tein’s thesis). To
take a few m ore exam ples, the F irst A m e nd m ent also assumes a status quo baseline by stating that
“Congress shall m ake no law . . .” (emphasis supplied). The Ex Post Facto Clause, too, assumes
government inaction as a baseline. Under Article I, section 8, Congress has no powers beyond those
expli citly granted and those necessary and p roper to carry out that grant. The Fourteen th Am endm ent,
meanwhile, is phrased in negative terms, “No State shall,” not “All States must,” which at least
imp lies a status quo baseline. Legal realists would question the distinction between state action and
inaction, b ut the Fou rteenth A mend ment w as written long befor e legal realism had its d ay.
77
In fact, as discussed below, the Lochner era Court rejected Langdellian premises ab out the
naturalness of the com mon law . More over, as T om G rey has re cently show n, Langd ell and his
followers in turn fiercely opposed Lochnerian jurisprudence. Thomas C. Grey, Does Constitutional
Judicial Rev iew U nder min e Lega l Formalism? (draft of Jan. 2003) (“conceptualist common-law
jurists like Langdell and Williston gave no support to constitutional ‘liberty of contract,’ which they
associated with an o utmod ed and unscien tific natura l-law jurisp rudenc e”); see also Herbert
Hovenkamp, The Political Economy of Substantive Due Process, 40 S TAN . L. R EV. 379, 382-83
(1988) (suggesting that while Langdellian common law jurisprudence was clearly formalist, there was
no analogous public law jurisprudence).
78
Id.; see also Stephen A. S iegel, The Revisionism Thickens, 20 L. & H IST. R EV. 631, 632-33
(2002) (“The central message of the scholars wh o established the overall unity of Gilded Age l a w is
that laissez-faire con stitut ionali sm w as cla ssica l legal th ough t’s pu blic law expr essio n wh ile
Langdellian legal science was its private law expression.”); Steven L. Winter, Indeterminancy and
Incom mens urability in Constitutional Law, 78 C AL. L. R EV. 1441, 15 23 n.4 29 (1990) (noting that
Sunstein’s theory is an application of th e Legal Realist critique of the private law system). For a
SPRING 2003
15
Bernstein
both Lochner and Langdell to modern constitutional d ecisions that p urported ly
repeat the mistakes of Lochner. Sunstein argues, for example, that the libertarian
baseline of First Amendment and Fourteenth Amend ment jurispr udence sh ould
be abando ned as Lochnerian.7 9
Sunstein’s use of historical analysis for blatant presentist purposes leaves
Lochner’s Legacy vulnerable to the charge that, as Theodo re White suggests, it
is “a sophisticated form of history as special pleading, in which historical data are
selectively employed for the purposes of supporting contemporary legal
arguments.” 8 0 Yet Sunstein’s argument has thrived because no one ha s carefully
scrutinized its histo rical underp innings— until now. Th is Article critiques three
major historical claims Lochner’s Legacy makes about the Lochner era: (1) that
the Lochner era Supreme Court understood the common law “to be part of nature
rather than a legal construct”; (2) that the Lochner era Court sought to preserve
what it saw as the “natura l,” “status quo” distribution o f wealth again st
redistributive regulations; and (3) that the ab andonm ent of Lochner in West Coast
Hotel v. Parrish 8 1 resulted from the Supreme Court’s recognition that the problem
with Lochner and its progeny wa s that the Cou rt in those dec isions mistaken ly
treated government inaction as the “baseline” to determine th e constitutiona lity
of governm ent regulation s. This Article shows that all three of these propositions
are incorre ct.
Before this Article pro ceeds to its critiq ue of Lochner’s Legacy, i t should be
pointed out that Sunstein’s footnotes qualify or even arguably contradict many of
the points he makes in Lochner’s Legacy’s text about the Lochner era. On the
one hand, Sunstein deserves p raise for being sufficien tly cautious abo ut his thesis
to acknowledge potential weaknesses. On the other hand, accepting Sunstein’s
caveats at face value largely undermine s Lochner’s Legacy’s histor ical thesis.
For example, S unstein states that “whether there was a [n unconstitutio nal]
departure from the requirement of neutrality . . . depended on whether the
governm ent had altere d the com mon law d istribution of entitlem ents.” 8 2 But he
then conced es in a footno te that redistribution through taxation was permissible,
so the Lochner Court did not always object to redistribution.83 Rather, the Court
modern version of this critique that Sunstein likely drew upon, see Duncan Ke nnedy, Form and
Substance in Private Law Adjudication, 89 H ARV. L. R EV. 1685, 1747 (19 76) (“If one could believe
that the c omm on law rules were logica lly derived from the idea of freedom and that there was no
discretionary e le m ent in their application, it made sense to describe the legal order itself as at least
neutral and nonp olitical if not really ‘natural.’”); Duncan Kenned y, Toward an Historical
Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940,
3 R ES. IN L. & S OC. 3, 4-5 (1980) (linking Lochner to comm on-law form alism); see gen erally Winter,
supra (noting that Sunstein’s understanding of Lochner is similar to Kennedy’s)
79
Sunstein contends that the Court should instead adopt his own vaguely Social Democratic notions
of deliberative democracy and the purs uit of equality, which are discussed in some detail in The
Partial Constitution and Democracy and the Problem o f Free Speech.
80
W HITE, supra note 53, at 24 (commenting on Lochner’s Legacy). Sunstein himself states that
whether his account “of Lochner should be accepted in place of one that stresses an active judi cial ro le
is an inescapably normative question. . . . The principal effort here is to set forth an alternative
approach that fits the history at least as w ell and that has dram atically different implications.”
Sunstein, supra note 37, at 874 n.9.
81
300 U.S. 37 9 (1937).
82
Sunstein, supra note 37, at 874.
83
He w rites that under Lochner, “Taxation and other measures might redistribute wealth without
16
Lochner’s Legacy’s Legacy
opposed “redistribution on an ad hoc basis, of the sort represented by maximum
hour and minimum wage laws,” unless such laws could be supported by a
“justification deemed ‘general’ or ‘public.’” 8 4 This confession undermines
Sunstein’s thesis, because oppositio n to legislation that either arbitrarily bene fits
a particular special interest, or that puts unfair bur dens on p articular individ uals
or groups, is not the same thing as opposition to changing common law
distributions, as such. Sunstein tries to rescue his point b y claiming that “the
requirement of generality might allow well-organized private groups to mobilize
in defense of the status quo. In this sense the requirement fits comfortab ly with
the broade r hostility to redistrib ution.” 8 5 Yet the reader just le arned from Sunstein
that the Court was not broadly ho stile to redistribution, as evid enced b y its
tolerance of “poor la ws,” that, as Sun stein acknowledges in a footnote,86 have far
clearer and more progressive redistributive consequences than minimum wage and
maximum hours law s.87
running afoul of the Due Process C lause; and the poor laws were generally immu ne from constitutional
attack.” Sunstein, supra note 37, at 878 n. 27; see also S UNSTEIN , supra note 39, at 361 n.8 (stating
the same qualification). Sunstein puts the case too mildly; the Lochner era Supreme C ourt did not
invalidate a single state poor law or other welfare law funded by general tax revenue. M oreover, the
Court upheld f ederal grad uated inh erited and estate taxes in New Y ork Trust v. Eisener, 256 U.S. 345
(1921), and Knowlton v. Moore, 178 U.S. 41 (1900). On the other hand, John Witt suggests that “the
channeling of redistrib utive efforts to the tax power is precisely the kind of move that political
scientists in the Am erican P olitical Deve lopmen t tradition would pick out as seriously hamstringing
government efforts to re distribute .” E-m ail correspo ndenc e from Profess or John W itt, Colum bia Law
Sch ool, to Professor David Bernstein, George Mason University School of Law, Sept. 25, 2002.
Public choice an d law an d econo mics s cholars, h owever, would ar gue that d irect redis tribution
through is both far mo re efficien t, far less likely to be a subterfuge for interest group self-dealing, and
far less likely to be unintentionally counterproductive than are regulatory schemes purportedly passed
for redistributive pu rposes. Su nstein acknow ledges the latter point. See infra note 86.
84
Sunstein, supra note 37, at 878 n.27.
85
Id.
86
Id. Sunstein suggests that the Court may have preferred redistribution through taxation rather than
regulation in part becaus e otherwise the redistribution m ight be perverse (e.g., from rich to poor) or
ineff ectu al. Id. He m akes the p oint even m ore strong ly in other writings. See S UNSTEIN , supra note
39, at 361 n.9 (noting that “[m]aximum hour laws do not simply transfer resources from em ployers
to employees. Some employees are hurt by such laws–those who wish to work for longer hours and
more money. The incidence of benefits and burden s is difficult to predict in advance.”); Sunstein,
Free Speech Now, supra note 56, at 264 n.23.
87
It also seem s a bit stran ge to imp licitly critiq ue the Court for consistently upholding poor laws
that clearly redistributed wealth to the poor, while being more skeptical of regulations that had
ambiguous distributive consequences, and in some cases, as with minimu m wage laws, m ay have hurt
the poor more than helped th em. See Christophe r T. Won nell, Lochner v. New York as Econom ic
Theory, unpublished manuscript available a t http://pap ers.ssrn .com/s ol3/paper s.cfm ?abstrac t_id
=259857 (visited Aug. 24, 2002) (explaining why maximum hours and especially minimum w age
laws hurt the poor). Labor unions supported high, uniform national minimum wage laws in the 1930s
precisely to e liminate the jobs of low-w age comp etitors. B RUCE J. S CHULMAN , FROM C OTTON B ELT
TO S UN B ELT : F EDERAL P OLICY, E CONOMIC D EVELOPMENT, AND THE T RANSFORMATION O F THE
S OUTH, 1938-1980, at 55-59, 71 (1991). Legislation directly benefitting labor unions, which the
Lochner era C ourt d isfav ored , also c an tra nsfe r wea lth up ward s, fro m u norg aniz ed w orker s to w ellorganized workers. H ENRY H AZLITT, E CONOMICS IN O NE L ESSON 140 (Arlington House ed. 1 979);
D OUGLASS C. N ORTH, G ROWTH AND W ELFARE IN THE A MERICAN P AST 179 (1966); A LBERT R EES,
T HE E CONOMICS OF T RADE U NIONS 87-89 (3d ed. 1989). For the negative effects of Progressive and
SPRING 2003
17
Bernstein
Sunstein also creates ambiguity when he suggests that the Court used common
law as the baseline from which to judge the constitutionality of government
regulations. 8 8 In a footnote, Sunstein partially recants, explaining that “[n]ot
every commo n law right was, b y virtue of its status as such, immunized from
collective control. Marginal and no t-so-marginal a djustments w ere perm issible.” 8 9
Further confusion arises around Sunstein’s claim that during the Lochner era “the
police power could no t be used to help those unable to p rotect themse lves in the
marketpla ce.” 9 0 He then concedes in a footnote that the scope of the police power
was in fact contestab le and contested, and that it perhap s could be used to help the
needy. 9 1
The point here is not to nitpick or to be petty, but to note that Sun stein’s
caveats put his critics, including this author, in a difficult position. If one
criticizes Sunstein for claiming that opposition to redistribution motivated the
Lochner Court, for neglecting the accepted role of the police power in the
common law system, or fo r suggesting that the Court co nsistently used common
law rules as a base line in making c onstitutional de terminations, S unstein or his
defender s can rebut the se criticisms with the footnoted caveats.
Sunstein’s later work resolve s this problem , however. S unstein, app arently
more confident ab out Lochner’s Legacy’s understanding of the Lochner
era—which is understandable given its widespread acceptance among
constitutional law scholars—co nsistently states that Lochnerian jurisprudence
involved protecting what the Court sa w as “prepolitical” common law
distributions of wealth,9 2 and rarely notes any caveats, even in footnotes. 9 3
New Deal era labor legislation on African Americans, see gene rally D AVID E. B ERNSTEIN , O NLY O NE
P LACE OF R EDRESS: A FRICAN A MERICANS, L ABOR R EGULATIONS AND THE C OURTS FROM
R ECONSTRUCTION TO THE N EW D EAL (2001).
88
He writes that “[m]a rket ordering under the comm on law was understood to be a p art of nature
rathe r than a lega l cons truct , and it form ed th e bas eline f rom whic h to m easu re the cons titutio nally
critical lines that distinguished action from inaction and neutrality from imperm issible partisanship .”
Sunstein, supra note 37, at 874.
89
Id. at 876 n.30. Interestingly, Gary Peller makes a similar point, and then puts a similar caveat
in a footnote. Compare Peller, supra note 16, at 577 (“Interference with the market or (and this was
the same thing) with the com mon law w as therefore interfere nce with liberty itself”), with id. at n.18
(“To be su re, n ot all com mon-law doctrines were constitutionalized in the way that the text
suggests.”).
Sunste in also states that the protection of common law rights dep ended not merely on the fact that
the rights at issue w ere protected by the common law, but also “on the fact that the common law
corresponded to a widely held normative theory about the proper role of government.” Sunstein,
supra note 37, at 879 n.30. The latter concession suggests the possibility that the Lochner Court
enforced a constitutional vision of protecting liberty that overlapped to some extent with common law
n o rm s , bu t wa s no t d e pe n de n t o n th e m .
90
Id. at 880; cf. Sunstein, Naked Preferences, supra note 56, at 1701 (“If a measure enacted by the
government was not a p rope r exe rcise of the police pow er un der c omm on la w standards, it was
imp erm issib le under the Due Process Clause as a naked preference for one group at the expense of
another.” ). For other “redistributive” laws upheld by the Court, see infra notes 172 to 201 and
accom panying te xt.
91
He ex plains tha t the text qu otation “ove rsim plifies a complicated framework; the scope of the
Lochner era police power was by no m eans precisely def ined.” Id. at 880 n.40.
92
See supra notes 54 to 58, and accompanying text.
93
Moreover, in private, casual conversation with this Author several years ago, before the Author
started working on this Article, Sunstein repeated Lochner’s Legacy’s thesis in stark terms, with no
caveats.
18
Lochner’s Legacy’s Legacy
Moreover, legal scholars who favorably cite Lochner’s Legacy and its progeny
rely on the broad assertions in the text, no t the caveats in the notes. W ith
Sunstein’s implicit and ex plicit assent, 9 4 Lochner’s Legacy has c ome to stand for
the proposition that the Lochner era Court constitutionalized the common law and
preexisting distributions of wealth. Therefore, this Article will continue its
critique of Lochner’s Legacy based on the text and not the footnoted caveats. The
criticisms this Article will offer, of course, will be independent of and far more
detailed than those that Sunstein himself provided.
I. T HE C OURT R ECOGNIZED THAT C OMMON L AW
R ULES W ERE C ONTINGENT AND M UTABLE
Sunstein emphasizes what he sees as the Lochner Court’s fealty to the common
law. Lochner’s Legacy cla ims that during the Lochner era “[m]arket ordering
under the common law was understood to be a part of nature rather than a legal
construct.” 95 The phrase “co mmon law ” is ambiguous, and could refer to either
Langdellian common law rules, i.e., the specific rules of the late 19th century
common law, or to the general system of Anglo-American rights and liberties.
Sunstein is clearly referrin g to specific commo n law rules. 96 These rules
emphasized “freedom of contract, fau lt as the basis for to rt liability, and simp le
full ownership with freedom of alienation as the normal fo rm of prop erty.” 9 7
Contrary to Sunstein’s cla im, the Supre me Cou rt consistently recognized the
contingent nature of common law rules. For example, just seven years before
Lochner, in Holden v. Hardy—an opinion written by one member of the Lochner
majority and joined by another— the Court w rote that “the co nstitution of the
United States, which is necessarily and to a large extent inflexible, and
exceedin gly difficult of amend ment, should not be so construed as to deprive the
states of the power to so amend their laws as to make them conform to the wishes
94
Consent is implicit in that Sunstein has never objected to this und erstanding of Lochner’s
Legacy; explicit in that he has continu ed to reiterate this thesis himself, often citing to Lochner’s
Legacy.
95
S unstein, supra note 37, at 874; cf. B ETH, supra note 11, at 64 (“The construction by Justice
Rufus W. P eckham and his colleagues of the doctrine of liberty of contract to stop the states from
regulating wages and other working conditions was a logical deduction from the e xisting common
law.”); Kainen , supra note 3, at 89 (contending that the Lochner Court relied on “an idealized vision
of the common law of property and contract”). In 1908, Roscoe Pound criticized courts for relying
on natural law doctrines which led them to “try statutes by the measure of common law doctrines
rather then [sic] by the C onsti tution.” Roscoe Pound, Liberty of Contract, 18 Y ALE L.J. 454, 467
(1908 ). How ever, Po und cites only state cas es to sup port his p oint.
96
He associates the common law with the “allocation of rights of use, ownership, transfer, and
possession of property associated with ‘laissez-faire’ systems and captured in the common law of the
late nineteenth cen tury.” Sunstein, supra note 37, at 882 n.49. M oreover, Sunstein feels obligated
to explain why the Court upheld workers’ compensation laws and the destruction of diseased trees that
were not creating a nuisance, both policies that abrogated comm on law rules. See Sunstein, supra
note 37, at 879. Meanwhile, Suns tein never discusses cases like Meyer v. Nebraska, 262 U.S. 390,
400 (1923), in which the Court sought to protect “the comm on law,” meaning not laissez-faire rules
but the system of Anglo-American liberty. As discussed elsewhere in this Article, Sunstein’s
conception of the “com mon law ” as a set of formal rules was influenced by decades of critiques of
the Lochner era Court that linked Langdellian common law formalism with the Court’s Lochnerian
constitutional decisions.
97
Grey, supra note 77 (noting that this is the common law that critics such as Sunstein believe the
Lochner Court was defending).
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of the citizens.” 98 The Court added that its role was not to prevent the law from
“adapt[ing] itself to new conditions of society, and particularly to the new
relations between employers and em ployees, as they arise.” 99 Two yea rs later, in
an opinion written by Lochner author Ru fus Peckha m, the Cou rt upheld a sta te
court ruling requir ing track connections at an intersection of railroad s.100 The
Court acknowledged that “at commo n law the cou rts would be without pow er to
make such an order as was made in this case by the state court,” but the regulation
was constitutio nally proper because it amounted to “a fair, reasonable, and
approp riate regulation .” 101
Even after the Court decided Lochner, it consistently noted the mutability of
common law rules. Following precedents written by proto-Lochnerian Justice
Stephen Field,1 0 2 the Lochner era Court routinely upheld laws abolishing the
fellow servant rule and the contributory negligence defense, even when the
reforms applied only to certain industries, and therefore were vulnerable to the
charge of class legislation.1 0 3 The Court emphatically stated that it was
“competent for the state to change and mod ify those [com mon law] p rinciples in
accord with its conceptions of public po licy.” 1 0 4 In 1927, at the very peak of the
Lochner era, the Co urt unanimously upheld a radical Alabama law that allowed
the assessment of punitive damages against an employer when the negligence of
an employee caused a co-worker’s death.105
98
Holden v. Hardy 169 U.S. 366, 38 7 (1898).
Id.; see also Hurtado v. C alifornia, 110 U.S. 51 6, 532-33 (1884), qu oting Munn v. Illinois, 94
U.S. 113, 13 4 (1876):
A pers on has n o proper ty, no vested interest, in any rule o f the c omm on law . Tha t is on ly
one of the forms of municipal law, and is n o more sacred th an any oth er. Righ ts of prop erty
which have been created by the common law cannot be taken away without due process;
but the law itself, as a rule of conduct, may be changed at the will or even at the whim of
the legislature, u nless pre vented b y constitution al limitations . Indeed, th e great office of
statutes is to remedy defects in the com mon law as they are develope d, and to adapt it to the
changes of time and circumstances.
100
Wisconsin, M . & P. R. Co. v. Jacob son, 179 U.S. 2 87 (1900).
101
Id. at 296
102
Missour i P.R. Co. v. M ackey, 127 U .S. 205, 20 8 (1888) (F ield, J.) (upholding a sta tute
abolishing the fellow servant rule in railroad acciden ts); Min neapolis & St. L. R. Co. v. Herrick, 127
U.S. 210 (18 88) (Field, J.) (same).
103
Bowersock v. Smith, 243 U.S. 29 (1917) (upholding a statute elim inatin g the f ellow s ervan t rule
and the defenses of contributory negligence and assumption of risk); Jeffrey Mfg. Co. v. Blagg, 235
U.S. 571 (1 915) (u pholding a statute abrogating the fellow servant rule and the defenses of contributory
negligence and assumption of risk defenses); C hicago, Ind. & L. Ry. v. Hackett, 228 U.S. 559 (1913)
(upholding a statute eliminating the fellow servant rule in railroad cases); Missouri Pac. Ry. v. Castle,
224 U.S. 54 1 (1912) (upholding a statute abrogating in railroad cases the fellow servant rule and the
defense of contributory negligence); Minnesota Iron Co. v. Kline, 199 U.S. 593, 598 (1905) (upholding
a statute abolishing the fellow servant rule); Louisville & N. R. Co. v. Melton, 218 U.S. 36, 53 (1910)
(upholding a statute abolishing the fellow servant rule); Chicago, I. & L. R. Co. v. Hackett, 228 U.S.
559 (1913) (upholding a statute modifying the f e ll o w servant rule); Wilmington Star Min. C o. v.
Fulto n, 205 U.S. 60, 73 (1907) (upholding a statute abolishing the fellow servant rule for min ing
accidents); St. Louis Merchants’ Bridge Ter. R. Co. v. Callahan, 194 U.S. 6 28 (1904) (upholding a
statute abolis hing the fe llow se rvan t rule for railroads ); Tullis v. Lak e Erie & W. R. Co. 175 U.S. 348
(1899) (upholding a statute abolishing the fellow servant rule in railroad accidents).
104
Wilmington Star Mining, 205 U.S. at 71.
105
Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112 (1927).
99
20
Lochner’s Legacy’s Legacy
Other legislative changes to common law rights upheld by the Court included
the expansion of life insurance companies’ liability beyond contractual
provisions; 106 creation of a presumption of railroad negligence in crossing
accidents; 107 placement of liability on railroads for claims to damage to freight not
resolved within ninety days; 108 imposition o f liability on railroad s for dama ge to
shipped property even if the loss occurred while the goods were under another
carrier’s control, and even where the defendant had tried to contra ct out of this
liability; 109 fining of common carriers for failing to exp editiously settle claims for
lost or damaged freight (the penalty was added to actual damages);110 imposition
of liability for misdelivery of telegrams on telegram com panies; 111 criminalization
of inadvertent c utting of timber on sta te lands; 112 imposition o f state 113 and
federal114 antitrust liability in situations where the common law would hold the
companies in question harmless; imposition of liability against a tavern in favor
of wives who suffered harm from the sale of alcoho lic beverag es to their
husbands; 115 and the requirement that physicians and dentists be licensed by the
state.116
The Court also held that the government could destroy valuable trees to prevent
the spread of disease, without compensating the owner.117 Consistent with many
earlier Suprem e Court ca ses that upheld land use reg ulations not inten ded to
remedy common law vio lations,118 the Court specifically noted that it did not
matter whether the affected trees were a nuisance at common law.119 Rather, the
Court argued that given the conflict of interests between the owner of the
destroyed trees and those whose trees the spread of disease would threaten, the
106
Life & Cas. Ins. Co. v. Mc Cray, 291 U.S. 5 66, 569-72 (1934 ).
Atlantic Coast Line R.R. v. Ford, 287 U .S. 502, 505-09 (19 33).
108
Southern Ry. v. Clift, 260 U.S . 316, 320-22 (192 2).
109
Atlantic Coast Line R.R. v. Glenn, 239 U.S. 388, 392-94 (1915).
110
Yazoo & Miss. Valley R.R. v. Jackson Vinegar Co., 226 U.S. 217, 218-20 (1912).
111
Western Un ion Tel. Co. v. Comm ercial Milling Co., 218 U.S. 406, 42 1 (1910).
112
Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 67-70 (1910).
113
Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 111-12 (1909).
114
See Alan J. M eese, Liberty and A ntitrust in th e Form ative Era, 7 9 B . U . L. R EV. 1, 81 (1999)
(“Many of these [antitrust] decisions reached results different from those counseled by traditional
articulations of the classical paradigm, and, for that matter, the common law.”).
115
Eiger v. Garrity, 246 U.S. 97, 102 -04 (1918).
116
Douglas v. N oble, 261 U .S. 165 (1 923); W atson v. M aryland, 2 18 U.S. 173 (1910); Reetz v.
Michigan, 188 U .S. 505 (1903); H awker v. New Y ork, 170 U.S. 189 (1898).
117
Miller v. Schoen e, 276 U .S. 272 (1 928).
118
See Hylton, supra note 11.
119
Miller, 276 U.S. at 280.
107
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governm ent’s decisio n to act or not to act would inevitably harm someone, and
therefore acting did not require compensation.120
The most radical assault on the common law during the Lochner era was the
replacement of comm on law rights an d duties with fed eral and state statutory
workers’ compensation regimes. If the Lochner era Court defended the common
law as “a part of nature,” as Sunstein argues, surely the Court should have
invalidated these schemes. Yet, contrary to the New York Court of Appe als’
infamous decision in Ives v. South Buffalo R.R.,121 the Suprem e Court ro utinely
upheld statutes that substituted statutory workers’ compensation schemes for the
common law tort system.122 New York Central R.R. Co. v. White ,123 a unanimous
1917 opinion, became the leading authority on the issue. Sunstein cites White for
the proposition that “one can trace” to the Lochner era “the idea that legislative
120
Id. at 279. Sunstein briefly discusses Miller, using it as evidence that the Court was abandoning
common law base lines in cer tain related areas of law even before West Coast Hotel. Sunstein, supra
note 37, at 881. However, it is difficult to reconcile Miller with Sunstein’s thesis, as the c a s e w as
decided only five years after Adkins, with essentially the same lineup of Justices, and at the peak of
the Lochner era, when the Court was most aggressive in its review of economic regulations.
121
201 N.Y . 271 (191 1). Ives gets a greatly disproportionate amount of attention from legal
scholars. See, e.g., Kainen, supra note 3, at 96-97 (discussing Ives as a paradigmatic exam ple of
Lochner era jurisprudence, without noting that other state courts and the United States Suprem e Court
rejected its reasoning). Ives was soon overturned as a matter of state constitutional law by
constitutional amendment, see N.Y . Const. art. I, § 19 (adopted Nov. 2, 19 13); Jensen v. S. Pac. C o.,
109 N.E. 600 (N.Y. 1915), five other state courts upheld their states’ workers’ c ompensation laws,
see Urofsky, State Cour ts, supra note 11, at 87, and the Supreme Court six years later utterly rejected
Ives, see infra. See gen erally David W. Park, “Compensation or Confiscation?” Workm en’s
Compen sation and Legal Progressivism, 1898-1917, at 44-45, 576 (Ph.D. diss. U. Wisc. 2000) (calling
Ives (and Lochner) aberrational, and noting that between 1911 and 1917, all courts of las t resort, w ith
the exception of the New York Court of Appeals in Ives, upheld challenged workers’ comp ensation
laws).
John Witt contends Ives had a profound influence on the structure of w orker’s compensa tion law
in its formative years in the 1900s, with the laws’ drafters attempting to create moderate laws that
could be distinguished from the law at issue in Ives. Appa rently, advo cates of th e laws fea red that s tate
courts would rely on Ives to hold workers’ com pensatio n laws u nconstitu tional und er state
constitutions. John W itt, The Passion of William Werner (unpublished m anuscr ipt on file w ith
author–chapter 6 of forthcom ing book, The Accidental Republic). R e ga r dl es s , i t s o on b ec a m e
apparent that conc ern that Ives would determine the constitutionality of workers’ compensation
nationwide, o r ev e n i n N ew York, was misplaced. By then, however, World War I had intervened,
and the Progressive push for such laws had lost its steam, leaving the Ives-influenced laws in place.
122
The C ourt did invalidate a federal law establishing new standards of liability for injuries suffered
by railroad workers, but the Court did so on Commerce Clause, not Lochnerian, grounds. The
Employers’ Liability Cases, 207 U.S. 463 (1908). Indeed, the Court suggested in dictum that the Due
Process Clause likely was not a barrier to such legislation. Id. at 503-04 (“We deem it unnecessary
to pass up on the m erits of the contentions concerning the alleged repugnancy of the statute, if regarded
as otherwise valid, to the Due Process Clause of the 5th Amendment to the Constitution, because the
act classifies tog ether all com mon c arriers. A lthough w e deem it unnece ssary to con sider tha t subjec t,
it must not be implied that we question the correctness of previous decisions noted in the margin,
wherein state statutes were held not to be repugnant to the 14th Amendment, although they classified
steam railroads in one class for the purpose of applying a rule of master and s ervant.”).
1 23
243 U.S. 18 8 (1917). Previously, the Court had up held laws prohibiting employers from
contracting around statutory liability sc heme s, but ha d not ruled on the co nstitutiona lity of th e
underlying statutory regime. Second Employers’ Liab. Cases, 223 U.S. 1, 52-53 (1912) (upholding
provision of federal law that voids any contract that contravene’s railroad’s statutory liability for their
employees’ on-the-job injuries); Chicago, Burlington & Quincy R.R. v. McGuire, 219 U.S. 549, 56373 (1911) (upholding a law that prevented a contract between an em ployer and employee from
operating as a defense to statutory liability).
22
Lochner’s Legacy’s Legacy
extinguishment of ‘core’ common law rights was permissible only if the
legislature furnished an a dequate a lternative rem edy.” 1 2 4 In a parenthetical, he
describes White as “upholding workers’ compen sation in part beca use of quid pro
quo.” 1 2 5
This is simply wrong . White did not say this, and, as we shall soon see,1 2 6 two
years later the Court explicitly rejected the argument that the constitutionality of
workmen ’s compensation rested on quid pro quo. The White opinion raised the
hypothetical issue of whether it would be constitutional for a state to “suddenly
set aside all common-law rules respecting liability as between employer and
emplo yee, without prov iding a reaso nably just subs titute.” 1 2 7 The Court stated
that such a rule might be unconstitutional, but not because the common law was
a prepolitica l natural baselin e. Rather, White reasoned that because the employers
and employee s of New Y ork State ex pended their capital, human and otherwise,
expecting a certain type of system to be in place, abolishing all common law
actions that might be so disruptive as to violate due process. 1 2 8 However, the
Court concluded that “[n]o such question is here presented, and we intimate no
opinion upon it. ” 1 2 9
The rest of the White opinion shows that the Court did not see the common law
as natural and prepolitical, but as manmade and mutable. White discussed at
length whether workers’ compensation laws comport with natural justice,1 3 0
whether they are reasonable,1 3 1 and whethe r they violate the F ourteenth
Amendment right of freedo m of contra ct. 1 3 2 By contras t, the Court dism issed in
a few contem ptuous sente nces the argu ment that the law was uncon stitutional
124
Sunstein, supra note 37, at 879 n.30.
Id. Suns tein repea ts this assertion in The Partial Constitution. See Sunstein, supra note 39, at
361 n.8.
126
See infra notes 13 7 to 152 and acc ompa nying text.
127
White , 243 U.S. at 201.
128
The C ourt wro te:
Considering the vast industrial organization of the state of New York, for instance,
with hundreds of thousands of plants and millions of wage earners, each employer, on the
one hand, h aving em barked h is capital, and each employee, on the other, having taken up
his particular mode of earning a livelihood, in reliance upon the probable permanence of an
established body of law governing the relation, it perhap s may b e doubte d whe ther the s tate
could abolis h all rights of action, on the one hand, or all defenses, on the other, without
setting up something adequate in their stead.
Id. at 201.
129
Id. (empha sis supplied). While the law at issue in White required an injured worker’s employer
to pay for the injury through the statutory compensation system, a com panion case upheld an even m ore
radical departure from common law principles, a statute which required that employees be compensated
from a pool into which all employers in an industry must contribute. Mountain Timber Co. v.
Washington, 243 U.S. 219 (1917). The Court explained that “it cannot be deemed arbitrary or
unre ason able for the state, instead of imposing upon the particular employer entire responsibility for
losses occurring in his own plant or work, to impos e the burden upon the industry through a system
of occupation taxes limited to the actual losses occurring in the respective classes of occupation.” Id.
at 244. Four Justices dissented from this opinion, but did so w ithout opinion, so the reasons for their
dissent are unknown.
The Court upheld a third workers’ comp ensation law in Hawkins v. Bleakly, 243 U .S. 210 (1917).
130
White , 243 U.S . at 202-03.
131
Id. at 205-06.
132
Id. at 206-08.
125
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because it changed common law entitlements b y creating liability witho ut fault.
The Court wrote that common law rules governing relations between employers
and employees may be altered “by legislation in the public interest.” “No
person,” the Court declared, “has a vested interest in any rule of law, entitling him
to insist that it shall rema in unchange d for his ben efit.” 133
Indeed, contrary to S unstein’s claims that the Lochner era Court saw common
law rights as natural and prelegal, the White opinion exhibited an acu te awareness
that commo n law rights are histo rically contingent an d legislatively mu table. The
Court explained that “[t]he comm on law base s the emplo yer’s liability for injuries
to the employee upon the ground of negligence; but negligence is merely the
disregard of some d uty imposed by law; and the nature and extent of the duty may
be modified by legislation, with corresponding change in the test of
negligence.” 134 Liability, the Court wrote, may be imposed for the consequences
of a failure to comply with a statutory duty, irrespective of negligence in th e
ordinary sense, safety appliance acts being a “familia r instance.” 135 The Court
also noted that the fellow servant ru le and the assu mption of risk doctrine, b oth
of which helpe d spawne d the worke rs’ compe nsation mo vement by m aking it
difficult for workers to win common law actions, were of “relatively recent
origin.” 136
Nor did White’s attitude toward the common law reflect the anomalous dicta of
a wayward Justice. In 1919, in a 5-4 ruling, the Court in Arizona Copper Co. v.
Hammer upheld a statutory workers’ compensation scheme which had no quid pro
quo.137 As in other workers’ compensation systems, employees could recover for
workplace injuries in the absence of negligence by the employer, an d employers’
common law defenses were abo lished. Unlike earlier statuto ry compensation
laws, however, th e statute did not limit damages. Instead, damages were
determined under common law rules on a case by case basis. Thus, employers
received no benefit in return for the abolition of the common law norms that
protected them.
The Arizona Copper majority refused to “concern itself” with arguments that
the law was uncon stitutional beca use it was nove l and did not follow common law
norms. 138 The ma jority explaine d that:
Novelty is not a constitutional objection, since under
constitutional forms of government each state may have a
legislative body endowed with authority to change the law. In
what respec ts it shall be changed, and to what extent, is in the
main confided to the several states ; and it is to be presumed
that their Legislatures, being chosen by the people, understand
133
Id. at 198. Sunstein does not addr ess this lan guage, w hich see ms to s o directly con tradict his
thesis.
134
Id.; see also Hawkins v. Bleakley, 243 U.S. 210, 213 (1917) (“The employer has no vested right
to have these so-called common-law defens es perpetuated for his benefit.”).
135
White , 243 U.S. at 198.
136
Id.
137
Arizona Copper C o. v. Hamm er, 250 U.S. 400 , 420-31 (1919).
138
Id. at 420-31.
24
Lochner’s Legacy’s Legacy
and corre ctly apprec iate their needs. The states are left with a
wide range of legislative discretion, notwithstanding the
provisions of the Fourteenth Amendment; and their conclu sions
respecting the wisdom of their legislative acts are not
reviewable by the courts. 139
While this opinion dre w dissents, 1 4 0 this should not obscure the consensus on
the Court that mor e typical work ers’ comp ensation laws w ere constitutio nal.
Even arch-conservative Justice James McReynolds generally acquiesced to the
replacement of common law with statutory workers’ compensation. In 1924 he
wrote, “Withou t doubt, Co ngress has p ower to alter, amend or revise the maritime
law by statutes of general application embod ying its will and jud gment. Th is
power, we think, would permit enactment o f a general employers’ liability law or
general provisions fo r compe nsating injuries.” 1 4 1 Three years later, at the height
of the Lochner era, the Court explained in dicta that “the various Wo rkers’
139
Id. Justice Pitney, writing for the Cou rt, ac know ledge d tha t a wh olly arb itrary or un reas onab le
alteration in the common law would be unconstitutional. Id. a t 4 2 0. H ow e ve r , t h e C o ur t a t t h is ti m e
thought that all arbitrary or unreasonable legislation was unconstitutional, so this was not a special
rule for the common law. Justice Holmes wrote a concurring opinion, which was originally circulated
as the opinio n of the C ourt, but w hich wa s replaced by Pitney’ s opinion becaus e Pitn ey thought that
Holmes’s opinion was too radical. A LEXANDER M . B ICKEL & B ENNO C. S CHMIDT, J R., T HE J UDICIARY
AND R ESPONSIBLE G OVERNMENT, 1910-1921, at 577-78 (1984).
140
Four Justices dissented, with all four joining in two separa te dissents authored by Justices
McKenna and McR eynolds, respectively. Justice McKenna wrote that the law was unconstitutional
because it created special privileges only for injured employees, and because he believed that it was “the
very foundation of right—of the esse nce of liber ty as it is of m orals— to be free f rom liab ility if one is
free from fault,” a right which could only be denied if liability was in turn limite d. Id. at 436
(McKenna, J., dissenting). Justice McReynolds, meanwhile, acknowledged that “the F ourteenth
Amendm ent was never intended to render imm utable an y particular r ule of law, n or did it by fixation
immortalize prevailing doctrines concerning legal rights and liabilities.” However, he believed that
the law in question was “arbitrary or oppressive upon consideration of the natural and inherent
principles of pr actic al justice which lie at the base of our traditional jurisprudence and inspirit our
Constitution,” not beca use it cha nged the comm on law as such, b ut becau se it arbitra rily provided
advantages to one side (employees) without giving the other side even a p atina of be nefit. Id. at 450
(McR eynolds, J., dissen ting).
O n the surface, the dissenting opinions may seem to support the view that four Justices thought that
common law rules were natural and immutable. Yet underlying both opinions is a more complex, and,
in the context of the ju risprudence of the era, und erstandable con cern. D espite potential liberty of
contract and “class legislation” objections, the Supreme Court accepted on principle the replacement
of common law with statutory workers’ compensation systems because the Justices believed that
legislative intervention was necessary to deal with social problems created by uncompensated
industrial injuries. The Arizona Copper law, however, divided the Court, in part because it was
com pletely one-sided, bu t also because it allowed compen sation for non-pec uniary injuries. The latter
point, in particular, made the law seem arb itrary and unreasonable, because the law gave on ly a
particular class of plaintiffs—injured workers—special legal advantages without any countervailing
public policy rationa le. In other w ords, be cause w orkers’ co mpen sation law s were j ustified as a
response to the prob lems atte ndant to the financial distress suffered by injured workers, some Justices
thought the only legitimate role for the laws was to compensate the workers for their financial losses.
By also compensating workers for pain and suffering, the Arizona Copper law seemed to th ese
Justices like a piece of legislation arbitrarily favoring one group of plaintiffs, to the exclusion of other,
equa lly worthy (or unworthy) plaintiffs, an d the de trimen t of indus trial emp loyers. In any e vent,
regardless of how one interprets the dissents in this case, it must be kept in mind that they were indeed
dissents .
141
State v. W. C. Da wson & C o, 264 U.S. 21 9, 227 (1924).
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Compensation Acts imposing new types of liability, are familiar examples of the
legislative creation of new rights and duties for the prevention of wrong or for
satisfying social and economic needs. Their constitutionality may not be
successfully challenged merely because a change in the common law is
effected.” 142
More generally, after the landmark White decision the Supreme Court
consistently upheld federal and state workers’ compensation statutes,143 including
laws with novel features. The Court uph eld laws that req uired emp loyers to pay
into a state worke rs’ compe nsation fund in stead of simp ly paying fo r their own
employees’ injuries;144 permitted an employee’s recovery for disfigurem ent with
no loss in earnings a bility; 145 required employers to pay into a state workers’
compensation fund when an employee without heirs died on the job;1 4 6 required
that compensation for a worker’s death be paid to the decedent’s relatives who
were citizens of, and lived in, anothe r country; 1 4 7 requir ed payment of
compensation to workers injured on their way to work;1 4 8 required employee s to
accept workers’ compen sation in lieu of tort remedies at their employers’
election;1 4 9 and restricted the fees attorneys could cha rge in workers’
compensation cases. 150 In 1924, the Court upheld the federal Jones Act, which
replaced the common law of maritime torts with a statutory scheme,151 and in 1932
the Court uph eld the feder al Longsho remen’s and Harbor Worker’s Compensation
Act. 152
Most of the Court’s decisions upholding workers’ compensation law were
unanimous. 153 Even the dissenters objected only to particular provisions of
specific workers’ compen sation laws, not to the concept of replacing the common
142
Louis Pizit z Dr y Goo ds C o. v. Y eldell, 274 U.S. 112, 116 (1927); see also Truax v. Corrigan, 257
U.S. 312, 329 (1921 ) (“no one has a vested right in any particular rule of the comm on law”); cf.
Sieg el, supra note 59, at 78 (Lochner era Justices “found no constitutional right to particular commonlaw rules.”).
143
E.g., Booth Fisheries Co. v. Industrial Comm’n, 271 U.S. 208 (19 26); Ward & Gow v. Krinsky,
259 U.S . 503 (192 2) (M cRe ynold s dis sent s); Lo wer V ein C oal C o. v. In dus trial Bd., 255 U.S. 144
(1921); Hawkins v. Bleakly, 243 U.S. 210 (1917). The Court did hold, over two dissents joined by
four Justices, that it was unconstitutional to apply New York’s workers’ com pensation statute to a
maritime injury. Souther n Pacific Co. v . Jensen, 24 4 U.S. 2 05 (1917 ). This decision, however, was
reached on federalism, not due process grounds; the Court, in fact, had already upheld New York’s
law as applied to non-maritime workers in White . See gen erally Barry Cus hman, Lochner, Liquor and
Longshoremen: A Puzzle in Progressive Era Federalism , 32 J. M AR. L. & C OM . 1 (2000) (disputing
the traditional Progressive interpretation of Jensen as one of many “anti-worker” cases decided by the
states). The Cou rt eve ntua lly uph eld workers’ compensation in the maritime context, but only when
it was fin ally made solely a matter of federal law. Panama R .R. Co. v. Johnson, 264 U.S. 375 (19 24).
144
Mountain Timber Co. v. Washington, 243 U.S. 219 (1917) (M cKenna, McReynolds, Van
Devanter, and W hite dissent).
145
New Y ork Cent. R.R. v. Bianc, 25 0 U.S. 596, 6 00-03 (1919) (M cReynolds dissents).
146
State n Is land Rapid Transit Ry. v. Phoenix Indem. Co., 281 U.S. 98 (1930); New York S tate
Rys. v. Shuler, 265 U.S. 379, 383-84 (1924); R.E. Sheehan Co. v. Shuler, 265 U.S. 371, 376-78 (1924).
147
Madera Sugar Pine Co. v. Industrial Accident Comm’n, 262 U.S. 499, 500-04 (1923).
148
Bountiful Brick Co. v. Giles, 276 U.S. 154, 158-59 (1928); Cudahy Packing Co. v. Parramore,
263 U.S. 41 8, 422-26 (1923) (M cReynolds, McK enna, and Butler dissent).
149
Middleton v. Texas Power & Light Co., 249 U.S. 152, 155, 162- 63 (1919).
150
Yeiser v. Dysart, 267 U.S. 540, 541 (1925).
151
Panama R .R. Co. v. Johnson, 264 U.S. 375 (19 24).
152
Crowell v. Benson, 285 U.S. 22 (1932) (Brandeis, Stone, and Roberts dissent from the holding
of the case, which interpreted the Act to require de novo district court trials after administrative
adjudication, but not from the notion that the Act itself was constitutional).
153
Dissents are noted in the footnotes.
26
Lochner’s Legacy’s Legacy
law with a statutory sch eme. M oreover , the Court f requently interpreted these
laws broadly, expanding further statutory law at the expense of the common
law.154 All of this is not terribly surprising, considering that three of the most
Lochnerian Justices— William H oward T aft, 155 Pierce B utler, 156 and George
Sutherland 157—had each been strong supporters of workers’ compensation laws
in their pre-Court political careers.
In sum, the Lochner era Cour t did not think c ommon rights immutable, and the
Court frequently upheld laws that changed or even abolished the common law.1 5 8
As a political scientist no ted in 193 0, “comm on law rights, ho wever natur al to the
English judiciary, are not synonymous with the rights guaranteed by the American
Constitution. Countless rules that were natural law to English judges are subject
to legislative mo dification in the U nited States.” 159
To the extent that the Lochner era Court explicitly relied on com mon law norms,
it almost always d id so to justify upholding government regulations, 160 by finding
154
E.g., International Stevedoring Co. v. Haverty, 272 U.S. 50 (1926) (interpreting a compens ation
law for “seamen” to include stevedores).
155
J AMES W EINSTEIN , T HE C ORPORATE IDEAL IN THE L IBERAL S TATE, 1900-1918, at 55 (1968).
156
D AVID J. D ANELSKI, A S UPREME C OURT J USTICE IS A PPOINTED 18 (1964); F RANCIS J. B ROWN,
T HE S OCIAL AND E CONOMIC P HILOSOPHY OF P IERCE B UTLER 96-97 (1945).
157
“ W e must take care that these people do not become wrecks, human driftwood in society. That
is one obje ct of this legislation. The law of negligence is hard; it is unjust, it is cruel in its operation.
The law of compensation proceeds upon broad humanitarian principles.” 48 C ONG. R EC. 4846, 4853
(1912) (statement of Sen. Sutherland). In 1916 , Sutherland introduced in Congre ss a workers’
compensation bill for employees of the federal governm ent. See 53 C ONG. R EC. 452 (1916) (statement
of Sen. S utherland ); see gen erally J OEL P ASCHAL , M R. J USTICE S UTHERLAND: A M AN A GAINST THE
S TATE 63, 65-72, 97, 125 (1 951) (discussing Sutherland’s su pport for workers’ compens ation).
158
Most of the cases cited here support this proposition are cases that changed or abolished tort
rules, which led one participant in a workshop focusing on this Article to ask whether it’s clear that
Sunste in believes th at the Co urt thoug ht that tort ru les were n atural and prepolitical, or just c ontract
and property rules. First, because most of the tort rules in question involved employer-emp loyee
relations, th ere is no c lear line diffe rentiating c hanges in tort rules fr om inf ringem ents on th e right to
contract. S econd, o f the seve n cases cited by S unstein to suppo rt his histor ical thesis, o ne of them is
W hite v. New Yo rk Centra l R.R.. , a case involving the abolition of tort rules in favor of statutory
workers’ compensation.
159
Spahr, supra note 11, at 335 .
160
The Court upheld man y regulations because the businesses being regulated were “affected with
a public interest,” a purported, though largely fictionalized, comm on law category. See Munn v.
Illinois, 94 U.S. 113 (1876) (holding that the government could regulate prices in a de facto mon opoly
that “was affected with a public interest” and therefore regulable at com mon law ); id. at 126 (Field,
J., dis senting) ( objecting that only de jure mono polies we re regulab le at com mon law ); cf.
C HRISTOPHER G. T IEDEMAN , A T REATISE ON THE L IMITATION OF THE P OLICE P OWER OF THE U NITED
S TATES § 93, at 237 (1886) (agreeing with Field that the majority in Munn misconstrued the com mon
law); see gen erally Chas. Wolff Packing C o. v. Court of Ind. Relations, 262 U.S. 522, 535, 538 (1923)
(acknowledging that th e cate gory o f “bu sine sses affec ted w ith a p ublic inter est” h ad ex pand ed w ell
beyond its comm on law origins).
In addition to the “affected with a public interest” cases, see, e.g., Village of Euclid v. Ambler
Realty Co., 272 U.S. 36 5, 388 (1926) (up holding residential zoning); Butler v. Perry, 240 U.S. 328,
329, 333 (1916) (uph olding a Florida statute requiring males between twenty-one and forty-five years
of age “to work on the roads and bridges of the several counties for six days” a year, and noting that
conscription for road work was a traditional form of tax and that “to require work on public roads has
never been regarded as a deprivation of either liberty or property”); Coppage v. Kansas, 236 U.S. 1,
35 (1915 ) (Day, J ., dissen ting) (argu ing that the re is no co nstitu tional right to insert into an
employment agreem ent term s that are “ against p ublic policy . . . as it is deemed by the courts to exist
(continued...)
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Bernstein
that common law experience suggested that the regulations in question were
within the scope of the police power. The Co urt did not inv alidate regula tions to
preserve a commo n law laissez-faire system. Rath er, the Cour t often upheld
regulations that seemed to violate liberty of contract only because the regulations
were consistent with preexistin g regulatory norms. 1 6 1 The com mon law o f tort,
contract, and prop erty thus did no t drive the libertarianism of the Lochner era.
Instead, the Court’s deference to the common law police power restrained the
Court’s libertarian instincts. 1 6 2
II. T HE C OURT A L L O W ED R EDISTRIBUTIVE R E G U L AT O R Y L E G IS L A TI O N
In Lochner’s Legacy and other writings, Su nstein argues tha t a major mistake
of the Lochner era Court was to treat existing distributions of resources as
160
(...continued)
at common law”); Muller v. Oregon, 208 U.S. 412, 418, 422 (1908) (upholding an Oregon maximum
hours law for women, noting that Oregon had reformed its common law to grant married women the
individual right to contract, but also noting that women’s common law disab ilities had roots in
women’s “disposition and habits of life”); Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905)
(upholding mandatory smallpox vaccination and stating that “in every well-ordered so ciety charg ed with
the duty of conserving the safety of its members the rights of the individual in respe ct of his liber ty may
at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by
reasonable regu lations, as the safety of the general public may demand”); Patterson v. Bark Eudora,
190 U.S. 169 (1903) (relying on the special common law status of seamen); Champion v. Ames, 188
U.S. 321 (1903) (analogizing lotteries to nuisances and upholding a law banning lotteries);
Hennington v. Georgia, 163 U.S. 299 (1896) (upholding a Sunday law and stating that “[f]rom the
earliest period in the history of Georgia it has been the policy of that state, as it was the policy of many
of the original states, to prohibit all persons, under penalties, from using the Sabbath as a day for labor
and for pursuing their ordinary callings); see genera lly Otis v. Parker, 187 U.S . 606, 607 (1903 ) (“N o
court would declare a u sury law uncon stitutional, even if every member of it believed that Jeremy
Bentham had said the last wo rd on tha t subjec t, and ha d show n for all time that such laws did more
harm than good. The Sunday laws, no doubt, would be sustained by a ben ch of judges, even if every
one of them thought it superstitious to m ake any d ay holy.”); see gen erally Frederick N. Judson,
Liberty of Contract Under the Police Power , 25 A M . L. R EV. 871 ,894 (1891) (“Usury laws, however
obje ction able in princip le, are adm itted in the j udicial dis cusses of the gen eral subj ect to rest upon
such a traditional policy of the race, a ntedating the cons titutions, as to make any que stion use less in
the present state of public opinion.”).
By contra st, influen tial treatise w riter Chr istopher T iedem an urged the courts to be less deferential
to comm on law no rms w hen de termin ing the con stitutionality o f legis lation. He believed, for
example, that only narrow Sunday laws were constitutional. T IEDEMAN , supra, at § 76, at 184 (“no
Sunday law is constitutional which does more than prohibit those acts, which are n oisy and are
therefore calculated to disturb the quiet and rest of Sunday worshipers, or wh ich in their commission
demand or are likely to demand, the services of others”). He also argued that “on no satisfactory
grounds can usury laws be justified.” Id. at § 94, at 240. Tiedeman did, however, allow that the
governme nt could prohibit lotteries. Id. at § 102, at 291.
161
See Siegel, supra note 59, at 81.
162
Sunstein states that the reason the Court invalidated the bakers’ hours law in Lochner was that
“the employe r had comm itted no com mon law wrong, a nd regu latory powe r was large ly limited to
the redress of harms recognized at comm on law.” Sun stein, supra note 37, at 877. T his statem ent is
too broad; as we have seen, the Court did allow regulatory legislation, from antitrust law to workers’
compensation, that wen t well beyond comm on law no rms. B ut Sun stein is correct that one category
of laws up held by the Court d espite inte rference with liberty o f contract w as laws th at exercised
regulatory power consistent with traditional exercises of the police power. While Sunstein associates
this with the Court’s deference to common law rules, a better explanation is the Court’s historicism,
discussed in detail in David E . Bernstein, Besieging “The Constitution Besiege d”: Understanding the
True Origins of Lochner (submitted for publication 3/2003).
28
Lochner’s Legacy’s Legacy
“natural,” “prelegal,” “p repolitical,”and “just.” 1 6 3 According to Sunstein,
government regulations that altered the common law distribution of entitlements
violated the constitutional requirement of neutrality. 164 Recall that in Lochner’s
Legacy, Sunstein associates the common law with the “allocation of rights of use,
ownership, transfer, and possession of property associated with ‘laissez-faire’
systems and captured in the common law of the late nineteenth
century.” 165Similarly, in The Partial Constitution, he claims that the Lochner era
Court’s mindset “made the system of ‘laissez faire’ into a constitutional
requireme nt.” 166
The latter bit of hyp erbole is ahistorical. Arguing that the Lochner Court
enforced a laissez-faire system is rhetorical exaggeration equivalent to arguing
that the Warren C ourt was “socialist.” 167 The Lochner Court, thou gh generally
163
C ASS R. S UNSTEIN , R IGHTS R EVOLUTION, supra note 55, at 19 (“Seeing the common law status
quo as prelegal and neutral, judges (and many other) did not recognize its pri ncip les as a part of the
regulatory system at all, but regarded them instead as the state of nature.”); S UNSTEIN , D EMOCRACY,
supra note 48, at 97 (“Lochner accepted existing d istributi ons of resource s as prep olitical and ju st,
and . . . invalidated democratic efforts at reform.”); S UNSTEIN , F REE M ARKETS, supra note 48, at 229
(“A principal problem with the pre-New Deal Court was that it treated existing distributions of
resources as if they were prepolitical and ju st.”); S UNSTEIN , supra note 39, at 45 (Lochner “sho uld
also be understood as rooted in a particular conception of neutrality, one based on existing
distributions of wealth and entitlements. The Lochner Court treated those distributions as prelegal and
just.”); Suns tein, supra note 67, at 182 (rejecting the Lochner “view that the system of common law
ordering, and free market principles, should be taken as a kind of neutral or prepolitical background,
against which any legislative action would be viewed with suspicion”); C ass R. Su nstein, The Beard
Thesis and F ranklin Roose velt, 56 G EO . W ASH. L. R EV. 114, 120 (1987 ) (The Suprem e Court’s
conclusion, in Lochner v. New York , that regulatory measures should be understood as a sort of
‘takin g’ from A for the benefit of B depended on a view that the common law was natural and
prepolitical.”); Cass R . Suns tein, F ree Speech Now, supra note 56, at 264 (“The pre-New Deal
framework treated the existing distributio n of resou rces and opportu nities as p repolitical, w hen in fact
it was not.”); Cass R. Sunstein, Legal I nterfere nce with Private Preferences, 5 3 U . C HI. L. R EV. 1129
(1986) (“In the Lochner period, for exam ple, the Supreme Court treated the system of market
ordering, within the constraints of the common law, as if it were prepolitical and inviolate.”); Cass R.
Sunstein, Political Equality and Unintended Consequences , 94 C OLUM . L. R EV. 1390, 1397-98 (1994)
(“A principal problem with the pre-New Deal Court was that it treated existing distributions of
resources as if they w ere prep olitical and ju st, and th erefore in validated democratic efforts at
reform.” ); Cass R. S unstein, Two Faces of Liberalism , 41 U. M IAMI L. R EV. 245, 245 (1986)
(criticizing “the Co urt’s ass ump tion that the existing d istributio n of wea lth was n atural and not a
proper subjec t of politics”); cf. Cass R. S unstein, Standing and the Privatization of American Law,
88 C OLUM . L. R EV . 1432, 1434 (1988) (“The use of common-law notions, sharply distinguishing
between statutory benefits and nineteenth century private rights, w as the central mark of the
jurisprudence of the Lochner period.”).
164
Sunstein, supra note 37, at 874.
165
Id. at 882 n.49.
166
Sunstein, supra note 39, at 40.
167
In fairness to Sunstein, over the years many other critics of the Lochner era Court have accused
it of enforcing “laissez faire,” and such exaggeration continues even in erudite books of history. For
example, in her rec ent book o n Robe rt Hale, B arbara F ried claim s that the Lochner e r a S u p re m e
Court “unambiguously embraced laissez faire” by “curbing regulation both of the market return that
owners could get for the use of their property, and of the terms of labor contracts.” F RIED, supra note
27, at 15; see also Jack M. Balkin, Bush v. Gore and the Boundary between Law an d Politics, 110
Y ALE L.J. 1407, 1449 (2 001); E RWIN C HEMERINSKY, C ONSTITUTIONAL L AW : P RINCIPLES AND
P OLICIES 480 (1 997 ed.); N EIL D UXBURY , P ATTERNS OF A MERICAN J URISPRUDENCE 32 (1995);
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Bernstein
sympathetic with the market system, did not attempt to enforce anything remotely
resembling the night watchm an state usually asso ciated with the phrase laissezfaire.168 Sunstein’s more mode st point, that the C ourt sought to protect the status
quo distributions of resources, is also not viable. In particular, Sunstein claims
that “the police p ower cou ld not be use d to help th ose unable to protect
themselves in the marketpla ce.” 1 6 9 He asserts that the Court constitutionalized
ancient Suprem e Court d icta oppo sing taking the p roperty “of A to give to B.” 1 7 0
If Sunstein is cor rect, the Cou rt should have consistently invalidated regulatory
laws that had real or potential redistributive conseque nces. 1 7 1 With a few famous
exceptions, 1 7 2 however, the Court up held such regulations. In fact, the Court
explicitly held in Holden v. Hardy1 7 3 that legislators could impose health and
Stephen Gardbau m, New Deal Constitutionalism and the Unshackling of the States, 6 4 U . C HI. L. R EV.
483, 516-17 (1 997); Steven K. Green , Justice David Josiah Brewer and the “Christian Nation”
Maxim , 63 A LB . L. R EV. 427, 434 (1999); Richard S. Mar kovits, Leg itimate Legal Argument and
Interna lly Right Answers to Legal-Rights Questions, 74 C HI-K ENT L. R EV. 415, 476 (1999); Michael
Rosenfeld, The Rule of Law and Legitimacy of Constitutional Democracy , 74 S. C AL. L. R EV. 1307,
1340 (2001) (all restating traditional view that the Court in Lochner was enforcing “laissez faire”).
Yet it should be obvio us that a Court that “unamb iguously embraced laissez faire” would have, for
example, invalidated restrictions on th e non-nu isance use o f pro perty altoge ther, and n ot sim ply
ensured a fair rate of return in cases such as Smyth v. A mes, 169 U.S. 466 (1898). W ith regard to labor
contracts, the Court upheld a wide range of regulations, as discussed infra notes 174 to 196 and
accompanying text. Fried backtracks a bit later in her book. See F RIED, supra, at 31 (acknowledging
that many historians believe that during the supposed heyday of laissez faire courts rarely invalidated
economic regulations).
168
Some of the Lochner era Court’s decisions upholding laws that conflicted with laissez-faire are
cited below, see infra notes 172 to 201 and accompanying text, but there are many, many, other such
decisions. Cf. Shapiro, supra note 19, at 81 (explaining that the Lochner era Court’ s “record is not
nece ssar ily one of caprice or inconsistency but of a mixture of allegiance to laissez-faire doctrines and
pragmatic interventions where the free m arket seemed to be yielding poor results.”).
169
Sunstein supra note 37, at 880 . For a more ambiguo us stateme nt, see Sun stein, Naked
Preferences, supra note 56, at 1701 (“If a me asure en acted by t he government was not a proper
exercise of the police power u nder com mon law standar ds, it was im permissible under the Due
Process Clause as a naked preference for one group at the expense of another.”). For other
“redistributive” laws upheld by the Court, see infra notes 17 2 to 201 and acc ompa nying text.
170
Calder v. Bu ll, 3 U.S. 386 (1798), quoted in Sunstein, Lochner’s Legacy, supra note 37, at 87677; see also John V. O rth, Taking from A and Giving to B: Substantive Due Process and the Case of
the Shifting Paradigm, 14 C ONST . C OMMENTARY 337, 337-45 (1997) (claiming that the prohibition
on taking from A to give to B was the crux of Lochnerian jurisprudence) As far as this a utho r can tell
from an extensive Westlaw search, the “A to B” argument was raised explicitly during the Lochner
era only in one disse nting opinion. See Wilson v. New, 24 3 U.S. 332, 3 70 (Day, J., dissenting).
171
Sunstein states that “there can be no doubt that most forms of redistribution and paternalism
were ruled out” during the Lochner era. Sunstein , supra note 37, at 877.
172
E.g., Wolff Packi ng Co. v. Kansas Court of Industrial Relations, 267 U.S. 552 (1925)
(overturning a compulsory arbitration scheme); Ad kins v. Children’s Hosp., 261 U.S. 525 (1923)
(invalidating a minimum w age law for women); Cop page v. Kansas, 236 U.S. 1 (1915) (invalidating
a law ban ning con tracts forb idding w orkers to jo in union s); Ada ir v. U nited States, 208 U.S. 161
(1908) (overturn ing a con viction for fir ing a wor ker for be longing to a union). In none of these cases
is it clear that the Court overturned the laws in question because of hostility to redistribution through
regulation, as opposed to hostility to specific types of regulations—wage controls and laws granting
special privileges to monopolistic unions—that interfered with prevalent notions of indus trial liberty.
See infra notes 206 to 208 and acc ompanying text (discussing the C ourt’s suspicious attitude toward
labor unions).
173
169 U.S. 36 6 (1898).
30
Lochner’s Legacy’s Legacy
safety regulations to redress inequalities in bargaining power.1 7 4 Holden was
decided seven years before Lochner, but the Lochner era Cour t consistently
reaffirmed its holding.1 7 5 In one po st-Holden case, for examp le, the Court u pheld
a law that was passed because “the legislature evidently deemed the laborer at
some disadvanta ge. .and .und ertook to a meliorate his c onditions.” 1 7 6 Contrast that
holding with Sunstein’s claim that “consideration of the plight of the
disadvantaged” was considered “impermissible partisanship” during the Lochner
era.1 7 7 A 1917 Columbia Law Review note expla ined that “it is now w ell
established that the passing of measures which tend to level the inequalities of
fortune is a legitimate field for legislation, and that a man may, at the expense of
his liberty, be prevented from making contracts which are detrimental to his own
welfare.” 1 7 8
174
The legislature has also recognized the fact, which the experience of legislators
in many states has corroborated, that the prop rietors of th ese estab lishmen ts
and the ir operative s do not s tand up on an eq uality, and th at their interests are,
to a certain extent, conflicting. The former naturally desire to obtain as much
labor as possible from their employees, while the latter are often induced by
the fear of discharge to conf orm to reg ulatio ns w hich their judg men t, fair ly
exercised, would pronounce to be detrim enta l to thei r hea lth or s treng th. In
other words, the proprietors lay down the rules, and the lab orers are p ractic ally
constrained to obey them. In such cases self-interest is often an unsafe guide,
and the legislature m ay proper ly interpose its authority .
Holden, 169 U.S. at 397. The author of this opinion, Justice Henry Brown, was a member of the
Lochner majority, as w as Chief Ju stice Melville Fuller.
The Court added that “the fact that both parties are of full age, and competent to contract, does not
nece ssar ily deprive the state of the power to interfere, where the parties do not stand upon an equ ality,
or wher e the pu blic health demands that one party to the contra ct shall be protected aga inst himself.”
Holden, 169 U.S. at 397. In Coppage v. Kansas, 236 U .S. 1, 17 (1915), the Court stated that
inevi table inequa lities in bargaining power between w orkers and owners did not justify legislation
prohibiting employers from requiring workers to agree not to join unions. The difference is between
a direc t regu lation of health and safety, as in Holden, and a law designed to increase the powe r of
labor unio ns, o rgan izatio ns th at m any th ough t wer e mo nopo listic a nd a t hrea t to ind ividu al liberty,
as in Coppage. Inequalities in bargaining power could be redressed by laws dire ctly prom oting health
and safety, but not by laws giving special privileges to labor unions, which m ay or ma y not use th eir
governme nt-granted pow er to promote h ealth and safety.
175
E.g., Booth v. Indiana, 237 U.S. 391, 395-97 (1915) (upholding a law requiring mining
companies to provide wash houses for their workers); Sturges & Burn Mfg. Co. v. Beauchamp, 231
U.S. 320 (1913) (upholding a state child labor law); Muller v. Oregon, 208 U.S. 412 (1908)
(upholding maximum hours law for women in part because women are at a disadvantage compared
to men in the struggle for survival). In Lochner itself, Justice Peckham grudgingly acknowledged that
Holden established the government’s ability to intervene on behalf of necessitous workers as a
constitutional principle. Lochner v. New York, 198 U.S. 45, 53-57, 61 (1905 ); see gen erally John A.
Fitch, Editoria l, 4 AM . L AB . L EG . R EV . 132, 13 3 (191 4) (noting that “wh en the S uprem e Court b y a
major ity of one, n ullified the b akers’ law , it did not in that opinio n destroy o r change the princip les
laid down in Holden vs. Hardy.’).
176
Knoxv ille Iron Co. v. H arbison, 183 U .S. 13, 2 0 (190 1); see gen erally Siegel, supra note 59, at
21(stating that Holden “more than Lochner, set and express the tenor of Lochner era
constitutionalism”); Urofsky, Myth a nd Rea lity, supra note 11 ( arguing th at Holden established the
basic rule for the Supreme Court, with Lochner being somewh at anomalous).
177
Sunstein, supra note 37, at 882.
178
Note, Liberty of Contract and Social Legislatio n, 17 C OLUM . L. R EV. 538, 541 (1917). The
Court upheld such a law the same year it decided Lochner. Cantwell v. Missouri, 199 U.S. 602 (1905)
(upholding a maxim um hours law for m iners on the authority of Holden).
SPRING 2003
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Bernstein
The Lochner era Cour t also upheld many other “redistributive” 1 7 9 state laws.
These included laws forbidding the employment of children below the age of
sixteen in certain hazardous occ upations, 1 8 0 prohibiting nighttime employment of
women in restaurants located in large cities, 1 8 1 regulating the hours of labor of
women 1 8 2 and of men in industrial occupations when overtime work was
permitted,1 8 3 regulating the wid th of entries to coal mines, 1 8 4 requiring coal mines
to maintain wash houses for th eir emplo yees at the request of twenty or more
workers, 1 8 5 making mining companies liable for their willful failure to furnish a
reasonab ly safe place for workers, 1 8 6 requiring that coal miners’ pay be based on
179
Some o f these law s do not s eem re distributiv e in the us ual sense of the wo rd, but S unstein
broa dly construes the redistributive category to include laws such as maxim um hours laws for women.
At least in the long-term, in a competitive free labo r mark et regulation s canno t actually redis tribute
wealth from owners as a class to wo rkers as a class, as w orkers w ill get paid som ething ver y close to
their m arginal pro duct eithe r way. See Wonne ll, supra note 87. If regulations require extra ben efits
for work ers, w ages and e mp loym ent lev els w ill eventually shift to recreate eq uilibrium. As the market
adjusts, some workers will benefit, but others will be harmed. H owever, the regulations noted below
may still be considered redistributive because (1) in some cases, the re sult was to increase the effective
wage of some workers, at the expense of unemploymen t for other workers; (2) labor markets can take
s o m e time to ad just to new regulations, creating a temporary redistributive situation; (3) some of the
laws were intended to prevent fraud, wh ich workers had trouble monitoring; (4) laws in terfering w ith
labor relations that do not seem inherently economically redistributive, such as maxim um hours laws,
nevertheless implied that work ers need ed the go vernm ent to assist them in arriving at employment
terms; and (5) many legislators understood little economics, and thought they are redistribu ting wea lth
to employees as a class even w hen they wer e not. See gen erally Adkins v. C hildren’s Ho sp., 261 U.S.
525, 563 (1923) (Taft, C.J., dissen ting) (“Legislatures which adopt a requirement of m aximum hours
or m i n im u m wages may be presumed to believe that when sweating employers are prevented from
paying unduly low wages by pos itive law they w ill continue th eir busin ess, aba ting that pa rt of their
profits, which were wrung from the necessities of their employees, and will concede the better t er m s
required by the law, and that while in individual cases, hardship may result, the restriction will inure
to the benefit of the general class of employees in whose interest the law is passed, and so to that of
the commu nity at large.”).
180
S t ur g es & B u rn M f g. C o. v . B e a uc h am p , 23 1 U .S. 320, 325-26 (191 3). T his is argu ably
redistributive beca use adult work ers, facing less com petition, may get p aid more.
The Supreme C ourt invalidated a federal child labor la w on federalism grounds in Ham mer v.
Dagen hart, 247 U .S. 251 (1918 ). This case has fr equently been used to suggest that the Court was
hosti le to child labor as a violation of liberty, which Sturges shows is not true. State courts also
routi nely upheld child labor legislation. E.g., Ex Pa rte Weber, 149 Cal. 392 (1906); United Steel Co.
v. Yedinak, 87 N.E. 229 (Ind. 1909); B ryan v. Skillman H ardware C o., 76 N.J. 45 (190 8); People v.
Taylor, 192 N .Y. 398 (1 908); State v. S horey, 86 P. 8 81 (Ore. 1 906).
181
Radice v. New York, 2 64 U. S. 292 , 293-95 (1924 ). This is argu ably re distr ibuti ve be caus e ma le
workers, facing less competition, may get paid more. The redistribution, however, is sidew ays, from
women to m en, not from rich to poor.
182
Bosley v. M cLaughlin , 236 U .S. 385 (1915 ); Miller v. W ilson, 236 U.S. 37 3 (1915); Riley v.
Massachus etts, 232 U.S. 671 (1 914); Muller v. Oregon, 208 U.S. 412 (19 08).
183
Bunting v. Oregon, 243 U.S. 426 (19 17).
184
Barrett v. Indiana, 229 U.S. 26, 28-29 (1913); see also Plymouth Coal. Co. v. Pennsylvania, 232
U.S. 531 (1914) (upholding a mine safety law); Chicago Dock & Canal Co. v. Fraley, 224 U.S. 603,
615 (1913) (upholding a law requiring the enclosure of certain shafts or openings of bin building
during construction).
185
Booth v. Indiana, 237 U.S . 391, 395-97 (191 5).
186
Wilmington Star M ining Co. v. Fulton, 205 U.S. 60 , 70-74 (1907).
32
Lochner’s Legacy’s Legacy
car loads of coal they produced,1 8 7 requiring railroads1 8 8 and mining companies1 8 9
to pay their employees in cash, requiring railroads to pay wages due an employee
on discharge regardless of contrary contractual agreement, 1 9 0 requiring coal
produced by miners be weighed for payment purposes before it p asses over a
screen, 1 9 1 giving prefere nces to citizen s in public wo rks emplo yment, 1 9 2 regulating
the wages and hours of wo rkers employed on public works projec ts,193 forbidding
the payment of seamen’s wages in advance,194 regulating the timing of wages paid
to employees in specified industries, 195 mandating an eight-hour day for federal
workers or employees of federal contractors, 196 taxing “emigrant agents” 1 9 7 out of
business, 1 9 8 and limiting attorneys’ fees in Court of Claims cases involving Indian
claims. 1 9 9 The vast majority of these decisions were unanimous, and, among the
exceptions, almost all of the dissenting votes came from Justices Brewer and
Peckham, the only two Lochner-era Justices who more or less consistently voted
to restrain government power. 2 0 0 The Court also ge nerally upheld antitrust laws,
187
Rail & River Coal Co. v. Ya ple, 236 U.S. 338 , 349-55 (1915).
Erie R.R. Co. v. W illiams, 233 U.S. 685, 69 9-704 (1914).
189
Keookee Consolidated Coal Co. v. Taylor, 234 U.S. 224 (1914); Dayton Coal & Iron Co. v.
Barton, 183 U.S . 23 (1901); Knoxville Iron Co. v. Harbison, 183 U.S. 13 (190 1).
190
St. Louis, Iron Mt. & St. Paul. Ry. Co. v. Pau l, 173 U.S. 404 (18 99).
191
McLean v. Arkans as, 211 U.S. 53 9, 545-51 (1909).
192
H e im v. McCall, 239 U.S. 175, 191-93 (1915); Crane v. N ew York, 239 U .S. 195, 198 (191 5).
193
Atkin v. Kansas, 191 U.S. 207, 219-24 (1903).
194
Patterson v. Bark Eudora, 190 U.S. 169, 173-79 (1903).
195
Strathearn S.S. Co. v. Dillon, 252 U.S. 348 (1920); Erie Ry. Co. v. Williams, 233 U.S. 685
(1914).
196
Ellis v. United States, 206 U.S. 246 , 254-56 (1907).
197
Em igran t agen ts we re hir ed by agric ultur al em plo yers to recruit African Americans from the
southeast to work in Mississippi and other “southwestern” states. Various southeastern states
contrived to tax the agents out of existence to reduce the mo bility of their labor supply. These
emigrant agent laws redistributed wealth, albeit from the poor to the rich. See gen erally B ERNSTEIN ,
supra note 87, ch. 1.
198
Williams v. Fears, 179 U .S. 270 (1900).
199
Margolin v. United States, 269 U .S. 93 (1925); Ball v. Halsell, 161 U.S. 72 (1896).
200
Justices Brewer and Peckham dissented in McLean , 211 U.S . at 552, Dayton Coal & Iron Co.,
183 U.S. at 24 , Knox ville Iron Co. 183 U.S. at 21, and Holden, 169 U.S. at 398. B r ew e r, P ec k ha m ,
and Fuller dissented in Atkin , 191 U.S . at 224. Justices Mood y, Hardy, and Day dissen ted in part on
statutory interpretation grounds in Ellis, 206 U.S. at 260, arguing for a broader interpretation of the
statute. Harlan dissented without opinion in Williams v. Fears.
Unfor tunately, one can’t learn anything specific from Brewer and Peckham’s dissents in these cases,
because the dissents are invariably unaccom panied by op inions. See also Union Bridge Co. v. United
States, 204 U.S. 364, 403 (1907) (B rewer and Peckham dissenting without opinion from a decision
upholding the right of the War Department to destroy without compensation any bridge deemed “an
obstruction to interstate commerce”); Bacon v. Walker, 204 U.S. 311, 320 (1907) (Brewer and
Peckham d i ss e nt in g wi th o ut op i ni on f ro m a decision finding that a law restricting grazing by sheep was
not unconstitutional class legislation); Gardner v. People, 199 U.S. 325, 335 (1905) (Brewer and
Peckham dissenting without opinion from a decision upholdin g a law req uiring ho tels to pay a particular
contractor to haul their garbage); Otis v. Parker, 187 U.S . 606, 609 (1903 ) (Brewer and Peckham
dissenting without o pinion fro m a de cision up holding a law bannin g futures contracts ); Booth v.
People, 184 U .S. 425 , 431 (1 902) (s ame); cf. F ISS, supra note 16, at 173 (s tating, inco rrectly, that it
was “mos t uncha racteristic” of Brew er and P eckham to dissent without opinion in Holden). Brewer’s
general worldview, however, can be discerned from his dissent in Budd v. New York, 143 U.S. 517,
551 (1892) (Brewer, J., dissenting), in which Bre wer denied that grain elevators could be regulated
even when they did not receive special privileges from the government. He wrote, “The paternal
188
SPRING 2003
33
Bernstein
which were among the most blatantly redistributive of laws, as they were seen as
aiding small businesses at the expense o f large corporations. 2 0 1
The Court, how ever, did invalidate one specific category of laws that might be
considered redistributive: laws which it believed ha d no purp ose other tha n to aid
labor unions. For example, the Court twice invalidated laws that prohibited
employers from forbidding their employee s to join labor unions. 2 0 2 Progressive
theory of government is to me odious. The utmost possible liberty to the individual, and the fullest
poss ible protection to him and his property is both the limitation and the duty of government.” See
also E DWARD A. P URCELL , J R., B RANDEIS AND THE P ROGRESSIVE C ONSTITUTION 46-56 (2001)
(discussing Brewer); Robert E. G amer, Justice Brewer and Substantive Due Process: A Conservative
Court Revisited, 18 V AND. L. R EV. 615 (196 5) (s ame ). Ac cord ing to Pur cell, “at the center of
[Brewer’s] jurisprudence lay a fervent belief in the authority of the courts to enforce the nation’s
fundamental moral and economic crises in a tim e wh en so cial co nflict , des truct ive ch ange , and a large ly
immigrant and da ngerous industria l work force threatene d to exploit the frailties of popular
Govern ment. ” P URCELL , supra, at 51. As a state court justice, Peckham, in a dissenting opinio n to
what becam e the c om panion case to Budd before the Supreme Court, spoke of “the absolute lib erty
of the individual to contract regarding his own property.” People ex rel. Annan v. Walsh, 22 N.E. 682,
687 (N.Y. 1889) (Peckham, J., dissenting). Peckham’s opinion in this case is probably the most
sophisticated political-econo mic de fense of f ree ma rkets writte n by an American judge in the
nineteen th centur y.
Brewer and Peckham also sometimes exhibited libertarian tendencies in cases not involving
econom ic liberties. See, e.g., Patterson v. Colorado, 205 U.S. 454, 465 (1907) (B rewer, J., dissenting)
(dissenting on obscure grounds from an opinion upholding a conviction resulting from the defendant
publishing an article calling the integrity of the Colorado Supreme C ourt into question); Halter v.
Nebraska, 205 U.S. 34, 45 (1907) (Peckham dissenting without opinion from an opinion u pholding a
state law banning the use of the American flag in advertising); Jacobson v. Massachusetts, 197 U.S.
11, 39 (1905) (Brew er and Peckham dissenting without opinion from a decision up holding mandatory
smallpox vaccinatio ns). Th e two m en were also “the m ost loyal friend s of Asia n imm igrants on th e
Court,” and frequently dissented from decision s strippin g Chine se imm igrants of their rights. Gabriel
J. Chin, Regulating Race: Asian Exclusion and the Adm inistrative State , 37 H ARV. C IV. R TS.-C IV. L IB .
L. R EV. 1, 58-59 (2002).
201
Robert B ork’s influe ntial book, The Antitrust Paradox, incorrectly states that the original
purpose of federal antitrust legislation was to protect consumers. Bork’s book is good economics, but
bad history, as the origin al pur pose of an titrus t laws was prim arily to protect the small proprietor from
the threat of comp etition from big b usiness. See R OBERT H . B ORK , T HE A NTITRUST P ARADOX: A
P OLICY AT W AR WITH ITSELF (1979 ); Rober t Pitofsky, The Political Content of Antitrust, 1 27 U . P A.
L. R EV . 1051 (1979) (discussing protection of small business as a historical and current purpose of
antitrust law). Even laisse z-fair e-orie nted legal th eoris ts, su ch as Chr istop her T iede man , wer e hos tile
to large, concentrated, potentially mono polistic businesse s. See Louise A. H alper, C h r is t op h e r G .
Tiedeman, ‘Laissez-Faire Constitutionalism’ and the Dilemmas of Sm all-Scale Property in the Gilded
Age, 51 O HIO S T . L.J. 1349 (1990); D avid N. Mayer, The Jurisprudence of Christopher G. Tiedeman:
A Study in the Failure of Laissez-Faire Constitutionalism, 55 M O . L. R EV. 93 (1990).
202
Coppage v. Kansas, 236 U.S. 1 (1915) (invalidating law banning contracts forbidding workers
to join unions); A dair v. United States, 208 U .S. 1 61 (1908) (overturning conviction for firing a
worker for belonging to a unions). The Court also enjoined the United Mine Workers from organizing
workers at a firm requiring that its employees not join a union, Hitchman C oal & Coke Co. v.
Mitch ell, 245 U .S. 229 (1917 ), and es sentially nullified on Com merce Clause g rounds theantiinjunction provisions of the 1914 Clayton Act. Duplex Printing Press C o. v. Deering, 254 U.S. 443
(1921). For a contemporary perspective, see Richard O lney, Discrimination Against Union
Labor—Legal?, 42 A M . L. R EV. 161 (1908).
The Court upheld the Railway Labor A ct in 1930, 4 5 U.S.C . § 151 et seq ., which aided the railroad
unions tremendously. Howeve r, the Court saw this legislation as a comprehensive law to protect
interstate commerce from strikes and other disruption s, not as prounion legislation. T e x as & N . O.
R. Co. v. Brotherhood of R. & S.S. Clerks, 281 U.S. 548.
Neverth eless, it see ms fair to say that th e Court’ s attitude h ad me llowed sin ce 190 8, whe n it
decided Adair . The prounion law invalida ted in Ad air was a lso part of a b roader law , the Erd man A ct,
34
Lochner’s Legacy’s Legacy
critics of the Court have focused on these decisio ns as evincing th e Court’s
hostility to redistributive regulations that would have aided wo rkers. 2 0 3
Undo ubtedly these decisions, combined with state and lower federal court
decisions unfriendly to lab or unions, limite d the growth of organized labor. 2 0 4
However, criticism of these decisions as intentionally anti-redistribution assumes
that the Justices accepted the Progressives’ view that workers were helpless and
vulnerable to exploitation without union representation, that the unions were the
vanguard of the working class, and that d ecisions lim iting the power of unions
served only the interests of the corpora te elite and harmed work ers. 2 0 5
The Justices, however, in common with much of public opinion, saw labor
unions as monopolist ic organizatio ns that threatene d the freedo m of both
individual workers and their employers, just as monopolistic corporations
threatened small businesses and consume rs.2 0 6 The Justices also argued that
upholding liberty of contract was crucial for the long-term prosperity of workers,
because their ability to sell their labor in a free marketplace was their primary
asset. In Coppage v. Kansas, for example, the Court invalidated a law that
prohibited employers from firing workers who joined unions. Justice Pitney
wrote for the C ourt:
intended to brin g labor calm to the ra ilroads. See Post, supra note 16.
203
E.g ., R OBERT M CC LOSKEY , T HE A MERICAN S UPREME C OURT 151 (1960) (“a good many laborers
were left a little hungrier than they might have been if the Cou rt had no t been the re to defen d econo mic
liberty”).
204
See W ILLIAM F ORBATH, T HE S HAPING OF THE A MERICAN L ABOR M OVEMENT (1991) (arguing
that organized labor’s political agenda was dictated by the constraints put on it by the courts, and its
success was limited by those constraints).
205
See, e.g., H ERBERT C ROLY , T HE P ROMISE OF A MERICAN L IFE 387 (1909) (“The labor unions
deserve to be favored because they are the most effective m achinery which has as yet been forged for
the economic and social amelioration of the laboring class); Robert L. Hale, Law Making By Unofficial
Minorities, 20 C OLUM . L. R EV. 451, 4 52 (19 20) (“W hen the rights and privi l eg e s w hich one p arty
possesses are va stly superior in strategic importance to those possessed by the other (when the restrain ts
on his liberty, in other words, are vastly less burdensome than those the liberty of the other), the other
party m ay in effect be compelled to submit by contract to almost any terms imposed by the stronger
party.”).
206
See Park, supra note 121, at 749-50 (“the court decisions hostile toward labor unions were not
a reflection of time-honored conservatism on the part of the courts alone. During the Progressive Era
a large portion of the American public feared the concentrated power and exclusive interests of
organized labor almost as m uch as conc entrated wealth an d trusts.”). Park notes that even many
Progressives h ad amb iguous attitudes tow ard labor unions . Id at 750.
Justice Harlan, who wrote the opinion in Adair v. United States, three years earlier wrote an opinion
endorsing a state law intended to preserve equality of bargaining power in the insurance market by
restricting “combin ations.” Carroll v. Greenwich Ins. Co. of New York, 199 U.S. 401 (1905) (Harlan,
J., concurring). Harlan wrote:
If, in the judgment of the state, the people who desire insurance u pon their property are
put at a disadvantage when confronted by a com bin ation or agreement among insurance
companies, I do not perceive an y sound reaso n why, p reservin g the individual right of
contracting, it may not forbid such combinations and agreements, and thereby enable the
insured and ins urer to m eet on term s of equ ality.
Id. at 414; see also New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (invalidating a law granting
an ice monop oly). The government, then, could break u p monopolistic businesses, but could not
respond to purpo rted monopoly power over workers by aiding in the establishment of labor unions
as a counter-m onopoly.
SPRING 2003
35
Bernstein
The right [to liberty of contra ct] is as essential to the laborer as
to the capitalist, to the poor as to the rich; for the vast ma jority
of persons have no other honest way to begin to acquir e
property, save by working for money. An interference w ith this
liberty so serious as that now under consideration, and so
disturbing of equality of right must be d eemed to be arbitrary,
unless it be sup portable a s a reasona ble exercise of the police
power of the state.2 0 7
In the Court’s view, merely helping labor unions did not satisfy the police power
because , as noted above, unions were seen as potentially self-serving
monopolistic organiza tions. 2 0 8
Beyond the union-relate d cases, at least through the 1920 s the Court ra rely
interfered with “progre ssive” redistrib utive legislation cla imed to be within the
states’ police power. 209 Moreover, the Court’s decisions upholding redistributive
207
Coppage, 236 U.S. at 14.
See generally Urofsk y, State Co urts , supra note 11, at 90-91 (concluding that state courts also
distinguished between laws intended to help workers and laws intended to help labor unions, and were
much m ore hostile to the latter).
Wh ile many P rogressiv es dism issed the Court’s concern s about labor unions as disingenuous
favoritism for corpor ations, th e history o f labo r uni ons p rovid es ev iden ce th at labo r uni ons a ctua lly
did act in self-serving, monopolistic ways sufficiently often, and w ere sufficiently irrelevant to the
overa ll welfare of workers, that the Justices’ concerns cannot be so easily dismissed. On the latter
point, labor union power has not correlated historically with workers’ overall economic progress. As
econom ic theory would predict, increases in wage rates follow increases in productivity, and have
historically been independent of the concen tration of un ion me mber ship or influence. F.A. H ARPER ,
W HY W AGES R ISE (IHS ed . 1957 ); H ENRY H AZLITT, E CONOMICS IN O NE L ESSON 140 (Arlington
House ed. 1979) ; C AMPBELL R. M CC ONNELL , E CONOMICS 651 (10th ed. 1987) ; D OUGLASS C. N ORTH,
G ROWTH AND W ELFARE IN THE A MERICAN P AST 179 (1966); L LOYD G. R EYNOLDS ET AL , L ABOR
E CONOMICS AND L ABOR R ELATIONS 301, 314 (1986). Economists have found that to the extent that
unions raise the w ages of the ir m emb ers, t he lon g-term gains com e large ly, per haps sole ly, at the
expense of other workers . A LBERT R EES, T HE E CONOMICS OF T RADE U NIONS 87-89 (3d ed. 1989 ).
Labor unions, meanwhile, frequen tly engaged in practice s and ad vocated p olicies that b enefitted th eir
memb ers at the expense of other workers. These other w orkers were often minor ities, immigrants,
and women , all of whom w ere excluded f rom union s to varying degrees . See gen erally B ERNSTEIN ,
supra note 87, at chs. 2-5 (elaborating on labor unions’ discrimination against African Americans, and
support for public policies they k new wou ld harm African Americans, during the Lochner era); Da vid
E. Bernste in, Lochner and Protective Legislation for Women (Book Review) (forthcom ing Michigan
Law Review) (discus sing labor u nions’ s upport fo r policies th at limited the opportunities of women
workers).
209
Contem porary com menta tors of varie d ideologica l perspec tive recogn ized th is fact. See, e.g.,
F REDERIC R. C OUDERT, C ERTAINTY AND J USTICE 57 (1914) (“Many of the State Courts have been
over-conservative and a re larg ely responsible for the feeling that has been created against the judiciary
as the representative of capitalistic and conservative power. But the Supreme Court of the United
States, with few exceptions has been liberal, recognizing that readjustment is not necessaril y
revolution.”); F RANK J. G OODNOW , S OCIAL R EFORM AND THE C ONSTITUTION 329 (1911) (“So far from
the S u p re m e Court being open to our criticism for giving unduly narrow construction to constitutional
provisions in favor of individual rights, as against measures designed for t h e p u b li c w elfare, a more
candid criticism might s uggest th at that great tr ibunal in c omm on with o ther Courts, had yielded
somewhat unduly to public criticism in giving effect to legis lation , wh ich, h owe ver, h owe ver d esira ble
from the standpoint of social reform, yet involves a measurable encroachment upon some of those
individual rights to secure which the 14th Amendm ent was adopte d.”); W ARREN, supra note 12, at
473 (“So thoroughly have the Judges, with very few exceptions, been imbued with this liberal spir it
in later years, that the danger at present does not to seem to lie in a reluctanc e of the C ourt to bow to
208
36
Lochner’s Legacy’s Legacy
regulations often did not involve “easy,” uncontroversial issues, as demonstrated
by state court pre cedents which invalidated the same types of laws upheld by the
Supreme Court. 210 Congress expanded the Supreme Court’s jurisdiction in 1914
the Legislative will, but rather in a too facile readiness to confirm whatever the Legislature may have
tem pora rily chose to d ecree.”); M OTT , supra note 2 2, at 3 43 (“ not on ly was the Suprem e Court very
slow in recognizing the full extent of the power given them by the Fourteenth Amendment, but once
they h ad de finite ly realized tha t power, it was ex ercised w ith extreme antipathy.”); William F. Dodd,
Social Legislation and the Cour ts, 28 P OL. S CI. Q. 1, 5 (1913) (“Except for a rather unfortunate lapse
in the New York bake-shop case, the Supreme Court of the United States has in the main taken a
liberal attitude toward legislation aimed to meet new social and industria l needs.” ); Felix Frankfurter,
Hours of Labor and Realism in Constitutional Law , 29 H ARV. L. R EV. 353, 369 (1916) (“the Lochner
case, judged by its history and by more recent decision s of the S uprem e Court, does not in itself furnish
the yardstick” to determine the constitutionality of protective legislation).
O f course, it is difficult to measure what affect the threat of Supreme C ourt invali datio n of r elative ly
radical regulatory legislation may have had on legislative agen das in C ongress and in s tates with
relativ ely quiesce nt courts. Also, the S uprem e Court’ s 1895 decision overturn ing a fe d er a l i n co m e
tax law led to harsh criticism of the Court for its anti-redistributive effect. Pollock v. Farmers’ Loan
and Trust Co, 157 U.S. 429 (1 895). See, e.g., Death of the Income Tax, L ITERARY D IGEST, June 1,
1895, at 4, 6 (“Today’s decision show s tha t the c orpo ration s and pluto crats are a s sec urely
[e]ntrenched in the Su prem e Court a s in the low er courts w hich they ta ke such pains to c ontrol.”).
However, while Pollock is often conflated with the Lochner line of cases, see, e.g ., Friedman , supra
note 27, at 1393 ( failing to distinguish between criticism of Lochner and criticism of Pollock), it was
an analytically distin ct case inv olving a diffe rent asp ect of constitutio nal law than the police power
regulatory cases.
210
For exam ple, the Illinois Supreme Court voided a law regulating the hours of labor for women.
Ritchie v. People, 40 N.E. 454 (Ill. 1895); cf. Muller v. Oregon, 208 U .S. 412 (1908). Th e Illinois court
also found unconstitutional a statute requiring mine operators to weigh coal on pit cars before it was
screened to determine miners’ pay. Ram sey v. Peo ple, 32 N .E. 364 (Ill. 1892); see also In re House
Bill 203, 39 P. 431 (Colo. 1895) (issuing advisory opinion stating that similar legislation would be
unconstitutional); cf. McLean v. Arkansa s, 211 U.S. 53 9 (1909) (upholding a sim ilar law). The New
York Court of Appeals invalidated a law banning nigh ttime employment of women in factories.
Peop le v. William s, 81 N .E. 778 (N.Y . 1907 ); cf. Radice v. New York, 246 U.S. 292 (1924) (upholding
a law restricting nighttime employment of women). The M issouri an d We st Virginia suprem e courts
voided laws that required tha t mining and manufa cturing wages be paid in cas h and not in s crip. State
v. Loomis, 22 S.W . 350, 353 (M o. 1893); State v. Goodwill, 10 S.E. 285 (W . Va. 1889). The Missouri
S u p re m e Cou rt also held unconstitutional a law requiring all advance s on wa ges be p aid in cas h. State
v. Missouri Tie and Timber Co., 80 S.W . 933 (Mo. 1904); see also Jordan v. State, 103 S.W. 633 (Tex.
C r im . 1907) ; cf. Keookee Consolidated Coal Co. v. Taylor, 234 U.S. 224 (1912) ( upholding an
antiscrip law). The California Supreme Court voided a law requiring corporations to pay their workers
at least once a month. Johnson v. Goodyear Mining Co., 59 P. 304 (Cal. 1889); cf. Strathearn S.S. Co.
v. Dillon, 25 2 U.S . 348 (1 920) (u pholding a law regu lating th e timing of wage payments). The
Colorado Supreme C ourt invalidated a law limiting the hours of employment in underground mines.
In re Morga n, 58 P . 1071 (Colo. 18 89); cf. Holden v. Hardy, 169 U .S. 366 (1898) (up holding a
maximum hours law for m iners). The Alabama and North Carolina supreme courts overturned emigrant
agent laws. Joseph v. Randolph, 71 Ala. 499 (1 882); S tate v. M oore, 18 S.E. 34 2 (N.C . 1893 ); cf.
William s v. Fears, 179 U.S. 270 (1900) (upholding an emigrant agent law). Finally, the highest courts
of New York and Indiana held that states could not regulate the terms and conditions of employment
for employees o f public contractors. S treet v. Varney Elec. S upply Co., 160 Ind. 3 38 (1 903 ); Pe ople
v. Coler, 5 9 N.E . 716 (N .Y. 19 01); c f. Ellis v. United States, 206 U.S. 246 (1 907); A tkin v. Kansas,
191 U.S . 207 (190 3) (upholding re gulations regarding p ublic works em ployment).
A 1909 article in the Political Science Quar terly provides an interesting chart enumerating the
occasions on which the United States Supreme Court and state courts invalidated state laws:
Years
SPRING 2003
By State C ourts
By U.S. Sup reme Court
37
Bernstein
to allow the Court to review judgments from state courts enforcing federal
constitutional rights,2 1 1 that is, to serve as a check on state courts that were
invalidating Progressive legislation, especially labor legislation.2 1 2
III. S UN STE IN ’S T HESIS R EGARDING R E D I ST R IB U T IO N C A N N O T
E X P L AI N L OCHNER E RA C IVIL L IBERTIES D E C IS I O N S
Sunstein’s theory that Lochnerian jurisprudence was about protecting common
law distributions of wealth cannot explain the Lochnerian “civil liberties”
decisions, most prominently Meyer v. Nebraska,2 1 3 that the Lochner era Court
decided under the Due Process Clause. In Meyer, the Court inv alidated a
Nebraska law that banned the teaching of foreign languages in private schools or
by private tutors. The law was one of several of its type passed in various states
in a wave of p ost-Wo rld War I nativism.2 1 4 Arch-Lochnerian Justice James
M cReynolds wrote a sweeping op inion holding that the Due P rocess Clause
protects a wide range of freedoms, including not only the “right of the individual
to contract,” and “to engage in an y of the common o ccupations of life,” but also
to “acquire useful knowledge, to marry, establish a home and bring up children,
[and] to worship God according to the dictates of his own conscienc e,” 2 1 5 along
with “other privileges long recognized at common law as essential to the o rderly
pursuit of hap piness by free men.” 2 1 6
The paragraph where the line quoted above appears is the only place where a
citation to Lochner and the phrase “common law” appear in the same paragraph
1901-1902
1902-1903
1903-1904
1904-1905
1905-1906
1906-1907
72
48
57
52
103
94
0
2
3
2
1
5
Dodd, supra note 13, at 198. The Court had no jurisdiction at the time to review state decisions
holding laws unconstitutional. But the chart is still striking, because it shows how rarely the Court
overturned state decisio ns upholding legislation. The chart also demonstrates why much of the
Progres sives’ ire w as directe d at the sta te courts a nd not th e Unite d States Supre me C ourt.
211
Act of Dec . 23, 1914 , Pub. L. N o. 224, 38 S tat. 790 (191 4).
212
F ELIX F RANKFURTER & J AMES M . L ANDIS , T HE B USINESS OF THE S UPREME C OURT : A S TUDY
IN THE F EDERAL J UDICIAL S YSTEM 188-98 (1927). Batlan has recently argued that the New York
Court of App eals, one o f the state c ourts m ost notoriou sly willing to inva lidate legislati on, a ctua lly
had a liberal view of the police power , at least before 190 5. Batlan, supra note 3. Batlan’s article,
however, contains several curious distortions and omissions. For example, she engages in a lengthy
discussion of the progressiveness of the New Y ork Court of Appeals’ decision upholding the bakers’
hours law in Lochner without noting that three of the seven justices dissen ted. Batlan, supra, at 52122. She also notes that the court reversed itself and upheld state regulation of wages on pub lic works
projects without noting that the reversal was a direct result of a United States Suprem e Court opinion
upholding such regulations on federal constitution al grounds, combined with a state constitutional
amend ment exp licitly allowing such regulations. B atlan, supra, at 519-20 n.576.
213
262 U.S. 390 (1923).
214
M ORTON K ELLER, R EGULATING A N EW S OCIETY: P UBLIC P OLICY AND SOCIAL C HANGE IN
A MERICA, 1900-1933, at 60-61 (1 994).
215
Meyer , 262 U.S. at 399 -400 (citations omitted).
216
Id. at 400.
38
Lochner’s Legacy’s Legacy
in a Lochner era opinion. But the Court is obviously not referring to common law
in the sense that Sunstein uses it in Lochner’s Legacy, i.e., a purported laissezfaire economic system governed by form alist commo n law rules of co ntract,
property, and tort. Rather, the Court is usin g “comm on law” in the sense of the
traditional rights and liberties of the American people.2 1 7 As Robert Post no tes,
Meyer “resolutely refuses to confine that realm [of liberty] to mere matters of
econom ic exchange . This refusal is p articularly striking beca use the passa ge’s
assertions are supported only by the citation of a long string of substantive due
process decisions d ealing with spe cifically economic regulation ranging from
Lochner itself to Adkins.” 2 1 8
Meyer was no anomaly. Two years later, in Pierce v. Society of Sisters ,2 1 9
McReynolds wrote another libertarian opinion, this time invalidating a law
banning private schools as a violation of fundamental liberties protected by the
Due Process Clause. W hile this case today is often treated as a First Amendment
freedom of religion case , neither the First Amendment nor freedom of religion
played any role in the Court’s reasoning.2 2 0 Instead, McReynolds focused on “the
liberty of parents and guardians to direct the upbringing and education under their
control. The fundamental theory of liberty upon which all governments in the
Union repose excludes any general power of the state to standardize its children
by forcing them to accept instr uction from public teach ers only.” 2 2 1
In Farrington v. Tokushige,222 meanwhile, the Court invalidated a Hawaii law
banning Japanese language schools. Despite his notorious racism,223 McReynolds
wrote, “The Japanese parent has the right to direct the educatio n of his own ch ild
without unreasona ble restrictions; the C onstitution pro tects him as well as those
who speak another tongue.” 224 Relying on the Lochner line of cases, the Court
217
For a contemporaneous use of the phrase common law in this sense by then-president of the
American Bar Association and past and future Supreme Court Justice Charles Evans Hughes, see
Charles Evans H ughes, President Hughes Responds for the Association, 10 A.B.A. J. 56 7, 569 (1924).
According to Hughes, the Court’s due process decision are “an education in reasonableness after the
essential method of the common law.” Common law seen “from custom” and “embod[ies] th e
experience of free men.” Id.
218
Post, supra note 16, at 1533. Post makes a slight error here, as the Court cites Twining v. New
Jersey, 211 U.S. 78 (1908) (refusing to apply the privilege against self-incrimination to the states),
along with the economic liberty cases.
219
268 U.S. 51 0 (1925).
220
See P HILIP B . K URLAND, R ELIGION AND THE L AW : O F C HURCH AND S TATE AND THE S UPREME
C OURT 27 (19 62) (“P robably the most a bused citation in th e constru ction of the first amendmen t is
the case of Pierce v. Society of Sisters. The ca se raised no chur ch-s tate issue; th e Court decided no
church -state issues.”). In fact, Pierce involved two consolidated ca ses. O ne plaintiff was a p rivate
Catholic school, the Society of the Sisters of the Holy Names of Jesus and Mary, and the other
plaintiff was a private, non-religious school, the Hill Military Academy. The latter school could not
have benefitted from a religious freedom-motivated opinion.
221
Id. at 5 34. For further discussion of Meyer and Pierce, see W ILLIAM G. R OSS, F ORGING N EW
F REEDOMS: N ATIVISM, E DUCATION, AND THE C ONSTITUTION: 1917-1927 (19 94).
222
273 U.S. 284 (1927) (invalidating law banning private Japanese-language schools).
223
See Randall Ken nedy, Race Relations Law and the Tradition of Celebration: The Case of
Professor Schmidt, 86 C OLUM . L. R EV. 1622, 1641 (19 86).
224
Farrrington, 273 U.S. at 298.
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Bernstein
also invalidated an anti-Chinese law that required merchants in the Americanoccupied Philippines to keep their account books in English or Spanish.225
In Gitlow v. New York , 2 2 6 the Court declared clearly for the first time that
“freedom of speech and of the pre ss . . . are among the fundamental personal
rights and ‘liberties’ protected by the Due Process Clause of the Fourtee nth
Amendment from impairment by the States.” The Court ruled in favor of the state
in that case. As in the context o f econom ic regulations, Lochnerian Justices gave
a broad scope to the states’ po lice power in regulating spe ech and o ther “civil
liberties,” and were reluctant to overturn the types of regulations that had an
established historical pedigree.
Meanwhile, Justices Holmes and Brandeis, who advocated broader restrictions
on state regulation of speech, o vercame their general re luctance to invalidate state
regulations only because of the Co urt’s Lochnerian decisions. 2 2 7 In Gitlow,
Holmes, joined by Brandeis, wrote a dissent that helped establish modern free
speech jurisprudence.2 2 8 What has not often been noticed is that Holmes
conceded that free speech guarantees app lied against the states only because the
Court had alread y interpreted the word “lib erty” broad ly in other, mor e typically
Lochnerian, contexts. He wrote: “The general principle of free speech, it seems
to me, must be taken to be in cluded in the Fourteenth Amendment, in view of the
scope that h as been give n to the word ‘liberty’ as there use d.” 2 2 9
In 1 9 31 , the Cou rt, in a 7-2 opinion, M cReynolds a nd Butler dissenting,
invalidated California’s “red flag law,” which banned display of the Communist
flag.230 Chief Justice Charles Evans Hughes acknowledged “that the State may .
. . provide for the punishment of those who indulge in utterances wh ich incite to
violence and crime and threaten the overthrow of organized government by
unlawful means.” 231 He added, however, “The maintenance of the opportunity for
free political discussion to the end that government may be responsive to the will
of the peop le and that changes may be ob tained by law ful means, an o pportunity
essential to the security of the Republic, is a fundamental principle of our
constitutional system. A statute which upon its face, and as a uthoritatively
construed, is so vague and indefinite as to permit the punishment of the fair use
of this opportunity is repugnant to the guaranty of liberty contained in the
225
Yu Cong E ng v. Trinidad, 271 U .S. 500 (1927).
268 U.S. 65 2 (1925).
227
Among Progressives, this also worked conv erse ly, with som e Pro gres sives argu ing th at it w ould
be hypocritical to argue for constitutional limitations on speech res trictions bu t not econo mic
regulations . Edward S. Corwin, for exam ple, defended wartime sp eech restrictions from attack on
First Ame ndm ent groun ds by no ting that m any on the left w h o n ow wished to limit Congressional
authorit y over speech had been “distinctly opposed to the curtailment of legislative discretion by
definite, unbending constitutional limitations” with regard to social and economi c regulations.
Legislative majorities, not constitutional rules, should determine the scope of Congressional action.
Edward S. Corw in, Freedom of Speech and Press Under the First Amendment, 30 Y ALE L.J. 48, 51
(1920).
228
268 U.S. 65 2, 666 (1925).
229
Id. at 672-73.
230
Stromberg v. California, 283 U .S. 359, 369 (193 1).
231
Id.
226
40
Lochner’s Legacy’s Legacy
Fourteen th Amend ment.” 232 Hughes thus relied on a Lochnerian fundamental
liberties argument, not the incorporation of the First Amendment’s protection of
freedom of speech. Similarly, in Powell v. Alabama, which recognized a right to
state-provided counsel, Justice Sutherland relied not on the Sixth Amendment, but
on “certain immutable principles of justice that inhere in the very idea of free
governm ent,” 233 language taken from Holden v. Hardy.234
The cases discussed above cannot be explained by the theory that the Lochner
era Court protected liberty of contract because it wanted to protect common law
distributions of wealth. Rather, the Court use d the Due Process Clause of the
Fourteen th Amend ment to protect what it considered the fundamental liberties of
Americans from arbitrary or unreasonable legislation.2 3 5
IV. T HE L OCHNER O P I N IO N D OES N OT S UPPORT S UN STE IN ’S T HE SIS
Sunstein uses the Lochner decision itself, invalidating a maximum hours law for
bakers, as a prime example of the Court giving deference to common law rules
and status quo distributions. Using Lochner as a represe ntative opinio n presents
difficulties. Justice Rufus Pec kham, the au thor of Lochner, would und oubtedly
have written a far more libertarian opinion if he had his druthers. 2 3 6 Instead, he
crafted an opinion that received the endorsem ent of a bare majority of the Court.
Lochner unsurprisingly reads like a compro mise opinion, with much ambiguous
dicta. Even so, no one has adequately explained how Peckham and Brewer
found three additio nal votes in Lochner, instead of being outvoted as they were
in every other protective legislation case in which they thought the legislation
unconstitutional. Nevertheless, a focus on Lochner itself is appropriate; even if
Lochner’s Legacy do es not expla in Lochner era jurisprudence, perh aps it at least
explains the anomalous Lochner opinion.
Sunstein finds “two features of the Court’s approach” in Lochner to be
“especially distinctive.” 2 3 7 These features, not surprisingly, track Sunstein’s
232
Id.
Powell v. Alabama, 287 U .S. 45, 71-72 (1932 ).
234
Holden v. Hardy, 169 U .S. 366, 389 (189 8).
235
See David E. B ernstein, Besieging “The Constitution Besieged”: Understanding the True
Origin s of Lochner (submitted for publication 3/2003).
236
This is apparent in some of P eckham’s dicta, where he favorably cites Godcharles v. Wigeman,
113 Pa. 431, 437 [6 A. 354 (1886)], and Low v. Rees Printing Co., 41 Neb. 127, 145 [59 N.W. 362
(1884)] for their enforcement of “the right of free contract and the right to purchase and sell labor
upon such terms as the parties may agree to,” a right never articulated b y th e U ni te d St at es S up r em e
Court, but implicitly supported by Peckham and Brewer in a series of dissents in decisions upholding
regulation of labor contracts. See supra note 200 and accompanying text (listing Peckham’s and
Brewer’s dissents in ca ses involvin g legislation tha t interfered with liberty o f contract) ; cf. Sie gel,
supra note 59, at 16 n.67 (stating that Peckham likely personally believed that the hours law at issue
in Lochner was constitutional only if it protected the public health, but that he grudgingly conceded
that the law would also pass constitutional muster under Holden v. Hardy if it meaningfully protected
the health of bakers); see generally supra note 200 and accompanying text (noting that Peckham and
Brewer were far m ore libertarian than were their colleagues).
237
Sunstein, supra note 37, at 887.
233
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Bernstein
thesis that Lochner era jurisprudence was about constitutionalizing common law
rules and proh ibiting redistribu tive regulations . First, “the Court sharply limited
the category of p ermissible go vernment e nds.” 2 3 8 As Sunstein puts it, the state
could not penalize Lochner, the protagonist in the litigation, because he had
committed no “comm on law wro ng” and “re gulatory power was largely limited
to the redress of harms rec ognized a t commo n law.” 2 3 9 Sunstein, however,
provides no citation to any language in Lochner that states, or even suggests, that
the Court deferred to common law principles, and no such language appears in the
opinion.
Second, Sunstein notes that the Court engaged in “careful scrutiny of the
relationship between the permissible end invoked by the state [bakers’ health] and
the means chosen by the sate to promote that end [a m aximum ho urs law].” 2 4 0
Sunstein claims that the law “was invalidated as impermissibly partisan—what
might now be ca lled special-inte rest legislation.” 2 4 1 Sunste in is hardly alone in
reaching this conclusion (though he m ay have bee n the first to express it).2 4 2 The
only support provide d, however, is the Court’s stated suspicio n that the health
rationale that supported the law in question was so weak that it gave rise “to at
least a suspicion that there was some other motive dominating the legislature than
the purpose to subserve the public he alth or welfare.” 2 4 3 The “other motive” is
238
Id.
Id.
240
Id.
241
Id. at 879.
242
See G ILLMAN , supra note 30; C USHMAN , supra note 45, at 55; Rebecca L. Brown, Activism is
Not a Four-Letter Word, 7 3 U . C OLO . L. R EV. 1257 (2002); Post, supra note 16, at 1513-14 (noting
and accepting the “comm onplace” interpretation of Lochner amon g legal historia ns as attemp ting to
police the boundaries between class and public-regarding legislation); G. Edward White, Revisiting
Substantive Due Process and Holm es’ Lochner Dissent, 63 B ROOK. L. R EV. 87, 88 (1997) (describing
Lochner-era due process decisions as predicated on “the principle that no legislature could enact
‘partial’ legislation, legislation that imposed burdens or conferred benefits on one class of citizens rather
than the citizenry as a whole”).
2 43
Lochner, 198 U.S. at 63. Later, Peckham states that “[i]t is impossible for us to shut our eyes
to the fact that many of the laws of this character, while passed under what is claimed to be the police
power for the purpose of protecting the public health or welfare, are, in reality, passed from other
motives.” Id. at 64. However, this comment is not directly referring to the bakers hours law at issue.
Rather, Peckham states that “interference on the part of the legislatures of the several States with the
ordinary trades and occupations of the people seems to be on the increase.” Id. Peckham first gives
several examples of state court d ecisi ons in valida ting o ccup ation al licen sing la ws, r elative ly
uncontroversial illustrations given that even Progressive treatise author Ernst Freund thought licensing
laws were often un necessary or ex cessive. See E RNST F REUND, T HE P OLICE P OWER 534-35 (1905).
P e ck h am , however, then cites two cases in which state courts “upheld the right of free contract and
the right to purchase and sell labor upon such terms as the parties may agree to.” Id. Not only did the
S u p re m e Court never adopt such a broad understanding of the right to contract, but the first of the
cases cite d by Pec kham had void ed an an tiscrip law, a type of legislation that the Supreme Court had
already upheld over his (and Brewer’s) dissent. Knoxville Iron Co. v. Harbison, 183 U.S. 13, 22
(1901). There is every reas on to believe, then, that this portion of the opinion did not fully reflect the
sentim ents of the full five-member majority, nor was it the underlying basis for invalidating the bakers
hours law.
For explicit, albeit especially regrettable examples (given the authorship) of acceptance of the class
239
42
Lochner’s Legacy’s Legacy
presumed to be the desire to enact “class legislation” benefitting organized
bakers.
Yet one should not vest much weight in the “other motive” language. Some
scholars have given in to the temptation of anachronistically assuming that
Peckham was thinking like a modern public choice scholar who would invalidate
legislation because the legislature was a ttempting to aid special inte rests.2 4 4 In
fact, however, Peckham followed the well-established rule “that the courts cannot
inquire into the motives of the legislators in passing them, except as they may be
disclosed on the face of the acts, o r inferable from their operation .” 2 4 5 The bakers
hours law betrayed no facial illicit “class” motive, and the Court did not infer one.
Suspecting a non-health-related motive is merely the flip side of refusing to
accept the state’s claimed health rationale. But the reason the law was
unconstitutional was not that the Court discerned an illicit rationale, but beca use
once the Court rejected the state’s claim that the law was a health measure, there
was no valid police power rationale for the law’s interference with liberty of
contract.
The Court conclud ed that the law’s “re al object an d purpo se were simp ly to
regulate the hours of labor between the master and his employees. . . in a private
business, not dangerous in any degree to morals, or in any real and substantial
degree to the health of the employee s.” 2 4 6 Beyond the generality of w ishing to
regulate hours of labor for non-health reasons, the specific motivation the New
York legislature may have had in passing the maximum hours law, including the
possibility that the law was special interest legislation, played no role, or at least
legisla tion thesis interpretation of Lochner, see B ERNSTEIN , supra note 87, at 4; David E. Bernstein,
Lochner, Parity, and the Chinese Laundry Cases , 41 W M . & M ARY L. R EV. 211, 290 (1999)
[hereinafter, B ernstein, Chinese Laundry Cases ].
244
This is a vigorous d ebate in the academic literature regarding how m odern public choice theory
shou ld affect jud icial review, if at all. But p ublic choice theory sug gests that m uch legislatio n bene fits
private interests r ather than the pub lic, leading so me to s uggest th at it provid es a rationale for more
stringent judicial review of economic legislation. For the law review literature on this debate, see,
e.g., Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101
Y ALE L.J. 31, 44 (1 991); Daniel A. F arber, Public Choice and Just Compensation, 9 C ONST .
C OMMENTARY 279, 288 (1992); Daniel A. Farber & Philip P. Frickey, The Juris prude nce of P ublic
Choice, 65 T EX . L. R EV . 873, 879 (1987); H erbert Hoven kamp, Legisla tion, We ll-being, a nd Pu blic
Choice, 57 U. C HI. L. R EV. 63, 85 (1990); Jonathan R. Ma cey, Promoting Public-Regarding
Legislation through Statutory Interpretation: An Interest Group Model , 86 C OLUM . L. R EV. 223, 227
(1986); Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and
Readin g of Statutes, 66 N . Y .U . L. R EV. 1, 5 (1991); Public Choice Theme Issue, 6 G EO . M ASON L.
R EV. 709 (1998); Sympos ium, Positive Political Theory and Public Law -- Part II, 80 G EO . L.J. 1737
(1992); Symposium on the Theory of Public Choice , 74 V A. L. R EV. 167 (198 8).
245
Soon Hing v. Crowley, 113 U.S. 703, 709 (1 885); cf. Florida C. & P. R. Co. v. Reynolds, 183
U.S. 4 7 1, 48 0 (1 9 02 ) (“ W e must assume that the legislature acts according to its judgment for the best
interests of the state. A wrong intent cannot be imputed to it.”). This rule was reiterated during the
Lochner era. See Coppage v. Kansas, 236 U.S. 1, 34 (1915) (Holmes, J., dissenting); Yee Gee v. City
of San Francisco, 235 F. 75 7, 758 (N.D . Cal. 1916).
246
Lochner, 198 U.S. at 64.
SPRING 2003
43
Bernstein
no formal role,2 4 7 in the Lochner Court’s decision. Peckham declined to even
directly address “class legislation” objections to the hours law, even though he
had ample in centive and opportunity to do so, including the fact that Joseph
Lochner’s brief focused on this issue.
Rather, as noted above, the foundation of Peckham’s opinion is the proposition
that bakers and their employers had a right to liberty of contract. Under Holden
v. Hardy, liberty of contra ct could be infringed to protect necessitous workers or
to preserve the health of either bakers or the public at large. The presumption was
in favor of liberty of contract a nd could be overc ome only if the law was a “labor
law” needed to redress some deficiency in the bakers’ ab ility to negotiate their
contracts or a “health law,” and therefore within the police power.248 But in
Lochner, the state did not argue that the health of the public was at stake.2 4 9
Peckham, meanwhile, concluded that bakers are “in no sense wards of the
State.” 2 5 0 Thus, unless the hours law, w hich “interfer[ed with bakers’]
independence of judgment and of action,” was intended to redress particular
health effects of baking, it was unconstitutional as “a mere meddlesome
interference[ ] with the rights of the in dividual.” 2 5 1
Peckham first ascertained whether baking was known to be an unhealthful
profession. He concluded that baking was an ordinary trade, not generally known
247
Peckham and Brewer were sure votes against the Lochner law, given their votes in Holden and
other cases involving laws interfering with liberty of con tract in the e mploym ent conte xt. See supra
note 200. Among the other three Justices in the Lochner majority, it is entirely possible that one or
more of them was sw ayed by th e belief, ex pressed by Lochner’s supporters, that th e law was a sop
to the bakers’ union, which illegitimately sought to monopolize the labor market for bakers by forcing
all bakeries to abide by union wo rk rules. See generally Editorial, supra note 13, at 346, 347 (“The
main effect of the decision . . . will be to stop the subterfuge by which, under the pretext of conserving
the public health, the unionists have sought to delimit the competition of non-unionists, and so to
establish a quasi-mo nopo ly of many im portant kinds of labo r.”); Editorial, Fussy Legislation, N .Y .
T IMES, April 19, 1905, at 10 (“It is m ost gratifying to observe that the Supreme Court does not allow
the sanctity of any contracts which may have been made b etween the demagogu es in the Legislature
and the ignoramuses among the labor leaders in bringing to naught their combined machinations.”).
Justice Harlan, who was virulently opposed to granting labor unions special privileges, see Adair v.
United States, 2 08 U. S. 161 (1908 ), either did not s hare this perspective or was truly committed, as
his dissent suggests, to givin g the g overn men t the b enef it of th e dou bt wh en it w as pu rpor tedly
exercising its police power, at least w hen the law w as facially neutral. Cf. A d a ir v . U nited State s
(authoring an opinion voiding a law that facially favored labor unions); Plessy v. Ferguson, 163 U.S.
537, 552 (189 6) (Harlan, J ., dissenting) (arguing that a facially discriminatory segregation law was
unconstitutional); see generally R ANDY B ARNETT, R ESTORING THE L OST C ONSTITUTION: T HE
P RESUMPTION OF L IBERTY ch. 8 (Princeton, forthcoming, Fall 2003) (contrasting Peckham’s
“presumption of liberty” with Harlan’s presumption that legislation purportedly passed under
authority of the police power w as cons titutional). In any event, regardless of what factors may have
priva tely motivated the members of the majority, their view of legislative mot ivatio n play ed no role
in Peckham’s opinion.
248
See C ORWIN , supra note 22, at 86 (“Manifestly, the Lochner Case discard s the principle of
presumed con stitutionality.”).
249
This claim was made in the state’s brief in the New York Court of Appeals, but was dropped at
the Suprem e Court level. Brief of Respondent at 7-11, People v. Lochner, 69 N.E. 373 (N.Y. 1904 ).
250
Lochner, 198 U.S. at 57.
251
Id.
44
Lochner’s Legacy’s Legacy
to be unhealth ful. 252 Second, Peckham found that the available scientific evidence
suggested that baking was not an especially unhealthful profession.253 For this
conclusion , he clearly relied on—b ut, to the detriment of his reputation, did not
explicitly cite 254—studies discussed in Lochner’s brief showing bakers had similar
mortality rates to many ordinary professions that the legislature did not regulate.255
Given, in the majority’s view, the absence of any sound reason to believe that the
maximum hours law wa s in fact a health law, the law was not a valid police power
252
Id. at 58 (“To the comm on understanding the trade of a baker has never been regarded as an
unhealthy one.”); cf. id. at 63 (criticizing increased legislative interference with the “ordinary trades”).
The New Y ork Court of Appeals justices also relied on common knowledge in their opinions below.
Compare People v. Lochner , 69 N .E. 373 , 382 (1 904) (a rguing th at unhe althfulness of baking is
within comm on knowledge ), with id. at 187 (Bartlett, J., dissenting) (claiming that “common
experience” shows that b aking is an ordina ry trade).
By contrast, in Muller v. Oregon , the Cou rt upheld a max imum hours law for wom en indu strial
workers, with Justice Brewer writing for unanimous Court that the Court could “take judicial
cognizance of all matters of common know ledge,” including that “woman’s physical structure and the
performance of maternal functions place her at a disadva ntage in the strugg le for subsistence.” Muller
v. Oregon, 208 U .S. 412, 421 (190 8).
253
Lochner, 198 U.S. at 58 (finding “no r easo nable foundation for holding this to be necessary or
appropriate as a health law to safeguard the public health or the health of [bakers ]”).
254
Generations of comm entators have thought preposterous Peckham’s claim that baking was not
especially un healthful, a nd attribu ted his vie ws to either hardhearted Social Darwinism, ignoran ce of
industrial conditions, or a formalism that required Peckham to ignore industrial conditions in favor
of enforcing abstract rights. Indeed, Peckham’s opinion led to Roscoe Pound’s call for judges to adopt
a “sociological jurisprudence” to replace Lochner’s alleged formalism, which purportedly ignored
social context. Pound, supra note 95, at 479-87; see generally Roy L. Brooks, The U se of Po licy in
Judicial Reasoning: A Reconceptualization Before and After Bush v. Gore, 13 STAN . L. & P OL’ Y R EV.
33, 38 (2002) (in a reflection of still-common se ntiment, referring to Lochner as the “quintessential
legal formalist opinion” ); J. M. Ba lkin, I d eo l og y a nd C o un t er - Id e o lo g y fr o m Lochner to G arcia, 54
UMKC L. R EV. 175 (1986) (describing Lochner as elevating formalist logic above empirical data). In
fact, howev er, the ap pendix to Lochne r’s brief c ontain ed wh at one scholar calls “an incipient
‘Brand eis brief’” with a com pilatio n of m edic al, scientific, and statistical data. See Brief for Plaintiff
in Error at 50-61, Lochner, 198 U.S. 45 (N o. 292); Siegel, supra note 5 9, at 1 9 n.7 7. Pe ckha m cle arly
relied on this appendix in writing his opinion, as mu ch of his d icta abou t the relative s afety of various
occupations—including his claim that if bakers’ hours could be regulated because of its effects on
worker health, so could many other professions that were equ ally healthful (or unhealthful)—tracks
information contained there. Because Peckham did not cite the brief, and constitutional scholars
rarely read briefs, Peckh am left himself open to th e charge s describ ed in the f irst senten ce of this
footnote. Even Siegel, a historian and Lochner scholar of some renown, ackn owledges that before
he read Lochner’s brief he had always assumed that Peckham’s assertion that baking was not
espe cially unhealthful was “a curmudgeonous flight of fancy.” Siegel, supra. For some reason,
scholars consistently overlooked Peckham’s statement that his view of the relative healthfulness of
baking was informed by “loo king through statistics regarding all trades and occupations.” Lochner
198 U.S. at 58.
255
Lochner, 1 98 U .S . at 5 9- 6 1 ( c om parin g workers’ to a wide range of other occupations, shown
by Lochner ’s brief to b e approx imately as healthful as workers’, that could also be regulated if the
bakers’ law was upheld, but neve r noting any reliance on data from the brief).
Justice Harlan’s dissent vigorously disputed Peckham on the issue of the relative healthfulness of
workers’. Harlan cited other studies showing that baking is an unhealthful trade. He argued that
given such ev idence, e ven if disputable, the court should defer to the legislature. Id. at 70-74 (Harlan,
J., dissentin g) The s tudies cite d by Ha rlan do no t appear in the state’s brief , or in the b rief the state
submitted to the New York Court of Appeals, and one wonders where he came upon them. The
major ity did not allud e to these s tudies, an d the Ju stices in th e majo rity have be lieved that th eir
obligation was to only review the information provided by the parties.
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measure, but a “mere meddlesome interference[] with the rights of the
individual,” 256 and an unc onstitutional vio lation of liberty o f contract. 257
The Lochner Court, then, was doing exactly what it purported to do: protecting
a fundamenta l right to liberty of contract from what it considered arbitrary
government interference.2 5 8 Preserving commo n law distributio ns played no role
in the opinion. The Lochner Court’s determination that the bakers’ hours law was
not a health law ren dered the legislative motivation behin d the law— whether it
was a “self-interested deal,” as Sunstein suggests the Court believed,2 5 9
satisfaction of arbitrary whim, sincere (albeit mistaken) belief that bakers were
in special need of government protection, a desire to make bakers dependent on
governm ent, or a desire to take a first tentative step toward maximum hours laws
for all workers2 6 0 —irrelevant. The law was unconstitutional because the Court
found that it violated liberty o f contract with no valid police power justification,
not because the Court suspected a particular illicit legislative motive, such as
transferring resources from emp loyers to employees. 2 6 1
V. T HE E ND OF T HE L OCHNER E RA W AS N OT A R ESULT
R EJECTION OF T RADITION AL B ASELINE A NALYSIS
OF THE
256
Lochner, 198 U.S. at 61.
Som e scholars have m ade m uch of P eckham ’s emp hasis tha t the bake r’s law w as not a “health
law,” but a “labor law pure and simp le.” Inferred from this is that the majority thought the law
illegitimate becaus e it sought to redistribute resources to workers at the expense of bakery owners.
The more plausible inference is that Peckham was responding to Harlan’s ass ertion that the Court
shou ld defer to the legislature’s claim that the law was a health measure, and t h er e fo r e c a m e within
the police power. Peckham quite reasonably responded that the legislature itself did not believe the
measure was meant to protect bakers’ health. The hours provision was part of a broader law aimed
at reform ing th e sanitary conditions of bakeries. Sections 2-6 of the New York Bakeshop Act
regulated the sanitary conditions of bakeshops, including requirements for plumbing, floors, the
storage of products, bathroom and toilets, and employee sleeping quarters. Section 1 provided for the
ten hour work day for bakers, six days per week, and sections 7 and 8 established penalties and
enforcem ent. The sanitary provisions of the law were all codified under the health section of the New
York code , wh ile the hours provisions was codified in the labor section, with enforcement by the labor
inspector, not th e hea lth ins pect or. T hus , ther e wa s am ple reason fo r the Cou rt not to defe r to claims
made in litigation tha t the hours provis ion was actua lly a health measure .
S o m e believe that Peckham originally drafted a dissent on beha lf of himself and three other Justices,
but later picked up another vote. See C HARLES H ENRY B UTLER , A C ENTURY AT THE B AR OF THE
S UPREME C OURT OF THE U NITED S TATES 172 (1942) (claiming that John Maynard Harlan, the
Justice’s son, stated that his fath er told him that Ha rlan’s opin ion was originally the m ajority opinion);
W ILLARD L. K ING, M ELVILLE W ESTON F ULLER : C HIEF J USTICE OF THE U NITED S TATES , 1888-1910,
at 297 (195 0) (“ The case was first d ecid ed th e opp osite way, and H arlan ’s dis sent was origin ally
prepared as the opinion of the Co urt.”); cf. J OHN E. S EMONCHE , C HARTING THE F UTURE: T HE S UPREME
C OURT R ESPONDS TO A C HANGING S OCIETY, 1890-1920, at 181-82 (1978) (arguing that the style of
the dissent arguably indicates it was intended to be a majority opinion).
258
As Barry Friedman points out, this is also how contemporary comm entators understood the
decision. Friedm an, supra note 27, at 1417-20.
259
Sunstein, supra note 9, at 879.
260
This was suggested in dissent by Holmes as a justifiable rationale for the law, see Lochner, 198
U.S. at 75 (Holm es, J., dissenting).
261
On the other hand, it is true that if the state had attempted to justify the constitutionality of the
law on th e grou nds that it expli citly sought to take resources from owners and give them to bakers,
even though the bakers were admittedly capable of bargaining on their own, the Court wou ld have
rejected that rationa le as insuf ficient to ove rcome the right of lib erty of contract, a nd as an illicit,
arbitrary classification.
257
46
Lochner’s Legacy’s Legacy
Beyond Lochner itself, Sunstein discusses only two other Lochner era cases in
any detail. First, Sunstein quotes one sentence from Adkins v. Children’s
Hospital, a 5-3 decision that invalidated a minimum wage law for women:
T o the extent that the su m fixed [by the minimum w age statute]
exceeds the fair value of the services rendered, it amounts to a
compulsory exaction from the employer for the support of a partially
indigent person, for whose co ndition there r ests upon him no peculiar
responsib ility, and therefo re, in effect, arbitrar ily shifts to his
shoulders a burden which, if it belongs to anyb ody, belo ngs to society
as a whole.262
Next, Sunstein quotes a few lines from West Coast Hotel v. Parrish, a 1937 case
upholding a minimum wage law for women:
The exploitation of a class of workers who are in an unequal
position with respect to bargaining power and are thus
relatively defenceless against the den ial of a living wage. . .
casts a direct burd en for their sup port upo n the comm unity.
What these workers lose in wages the taxpayers are called
upon to pay. . . . The community is not bound to provide what
is in effect a subsidy for unconscionable em ployers.
As Sunstein notes, West Coast Hotel is commonly thought to signify the end of
the Lochner era. Sunstein contrasts the quoted language from Adkins and West
Coast Hotel to show that the Lochner era ended when the Court shifted from
using government inaction as a baseline, to understanding that existing
distributions of wealth are themselves a product of government action, and
therefore should not serve as the baseline for constitutional analysis.
Unfortuna tely, according to Sunstein, the Court, failed to seize o n this point to
transform constitutional ju risprudenc e, instead ultima tely concludin g that the
lesson of Lochner was to avoid judicial activism , especially in the e conom ic
realm. For the reasons discussed below, Sunstein’s interpretation of Adkins and
West Coast Hotel is unpersuasive.
A. Adkins
Sunstein’s reliance on one sentence from Adkins as representative of an entire
constitutional era is tendentious . The quoted language from Adkins not only does
not represent Lochner era jurisprudence as a whole,263 it is only partly
representative of Adkins. Adkins suggested that the most constitutionally suspect
aspect of the minimum wage law in question was that it placed an arbitrary, un fair
burden on employers who should not be expected to bear the costs of supporting
employees who lacked the skills to earn a better wage.264 The Court, however,
262
Adkins v. Children’s Hos pital, 261 U.S. 525, 557 -58 (1923).
Six years earlier, in Stettler v. O’Hara, 243 U.S. 629 (1917), the Court split 4-4 in upholding a
minimum w a ge la w fo r wo m en. Had Just ice B rand eis n ot rec used him self, a clear m ajori ty wou ld
have voted to uphold the statute. Adkins only received five votes, a nd lost the votes of Taft and
Sanford, who usually voted with the Court’s Lochnerians. B randeis again recu sed h ims elf, bu t wou ld
certainly have voted with the dissenters.
264
Sutherland also pointed out that if the law actually accomplished the end of requiring an
employer to pay an employee m ore than s he was worth, th e law wo uld ultim ately fail to achie ve its
goal in the long term, because em ployers cannot indefinitely pay workers more than the workers
contribute to the firm. Adkins v. Children’s H osp., 261 U.S. 52 5, 557 (1923).
263
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Bernstein
also suggested that the law was arbitrary because it (1) purported to provide a
minimum living wage for women, yet assigned different wages to women in
different occupa tions, and did not take into account the disparate needs of
different women; 265 (2) sought to protect the rig ht to liberty of contract of both the
employers and the workers subject to the minimum wage, one of the latter of
whom appeared as a plaintiff before the Court after losing her job when the wage
law went into effe ct;266 (3) “[t]he power to fix high wages connotes, by like
course of reason, the power to fix maximum wages”;267 and (4) women were, after
passage of the Ninete enth Amendment, fully equal citizens, which in turn created
265
Id. at 556-57.
Id. at 555 n.1 (noting that one of the plaintiffs lost her job due to the minimum wage law).
267
The majority suggests that “the same argument which has been here urged to strip the employer
of his constitutional liberty of contract in one direction will be utilized to strip the emplo yee of his
constitutional liberty of contract in the opposite direction.. . .[T]he good of society as a whole cannot
be better served than by the preservation against arbitrary restraint of the liberties of its constit uent
mem bers.” Id. at 563. C hief Jus tice Taft, d issenting , though t this was an important consideration in
the majority’s ruling. See id. at 564-65 (Taft, C.J., dissenting) (“[The majority’s] conclusion seems
influenced by the fear that the concess ion of the p ower to im pose a m inimu m wa ge mu st carry with
it a concess ion of the p ower to fix a max imum wage. T his, I subm it, is a non s equitur. A line of
distinction like the one unde r discussion in this case is, as the o pinion elsewh ere admits, a matt er of
degree and pra ctical experience and not of pure logic. Certainly the wide difference between
prescribing a minimum wage and a maxim u m w age could as a matter of degree and experience be
easily affirmed.”). Fear that upholding legislation purporting to benefit workers would ultimately lead
to legislation harming worke rs was a consistent theme during the Lochner era. See, e.g., Wilson v.
New, 243 U.S. 33 2, 387 (1917) (Pitney, J., dissenting) (“ If Congre ss ma y fix wages of trainm en in
interstate commerce during a term of months, it may do so du ring a term of years, or indefinite ly. If it
may increase wages, much more c ertainly it m ay reduc e them . If it may establish a minimum it may
establish a maximum .”); id. at 389 (McR eynolds, J., dissenting) (“considering the doctrine now
affirmed by a majo rity of the cou rt as estab lished, it follows as o f course th at Cong ress has power to
fix a max imum as well as a minim um w age for train men” ); cf. Coppage v. Kansas, 236 U.S. 1, 20
(1915) (“can there be one r ule of liberty for the labor organization and its members, and a different and
m ore restrictive rule for employers? We think not. . .”); Adair v. United States, 208 U.S. 161, 175
(190 8) (“ The right of a p erso n to se ll his labor upon such terms as he deems proper, is in its essence,
the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept
such labor from the person offering to sell it.”); In re Morgan, 58 P. 1071 (Colo. 1889) (“If, to protect
the health of w orkme n engag ed in these two occupations, the legislature may limit them to eight hours
per day, it may he reafter, up on the gro und tha t idleness, resulting fr om sh ort hours of labor, lead s to
drunkenness and gam bling; and indus try, promoted b y longer hours, to happiness and health, enact
that workmen must labor at these occupations fourteen or sixteen hours per day.”). The American
Federation of Labor consistently opposed minimum wage laws for men, fearing that the “same law
may endeavor to force men to work for a minimum wage scale.” N ANCY W OLOCH, M ULLER V.
O REGON: A B RIEF H ISTORY W ITH D OCUMENTS 4 (199 6) (quo ting Sam uel Gom pers, P residen t,
American Federation of Labor). As late as the early 1930s, most union leaders opposed maximum
hours laws for me n. A LICE K ESSLER-H ARRIS , IN P URSUIT OF E QUITY: W OMEN , M EN , AND THE Q UEST
FOR E CONOMIC C ITIZENSHIP IN 20 TH-C ENTURY A MERICA 71 (2001).
The fear that minimum wage laws would lead to maxim um w age laws had a reasonable ba sis. As
both the majority and the dissents acknowledged, em ployers would not ultimately be willing to pay
wor kers more than their worth. If the labor market was competitive, the market wage would be
a p pr o xi m ately equa l to marginal productivity. If the minimum wage law raised wages beyond the
market wage, firms would necess arily fire work ers now earning m ore than th eir mar ginal prod uct.
A logical governmental response would be to forbid firms to fire their low-wage employees. Such
a ban, however, would m ean that the firms would lose money and go bankrupt. The next logical
response by government would be either to set a maximum wage, so that firms could use some of the
money they previously paid their high-wage employees to cover the minim um wage for low-wage
employees, or simply nationalize industries and determine all wages by fiat. This sort of government
control over em ploymen t and wa ges actua lly did arise in c ountries like Argentin a, resulting in the
destruc tion of both liberty and prosp erity in a formerly very pros perous nation . See generally R o m e
G. Brown, The Statutory Minimum Wage , 22 C ASE AND C OMMENT 281, 286 (1915) (explaining why
minimum wage laws may lead to broad governm ent control over wages).
266
48
Lochner’s Legacy’s Legacy
a presumption that laws subjecting women to special disabilities or privileges are
unconstitution al. 2 6 8
The Court, then, noted several reasons the minimum wage law for women was
unconstitution al, but Sunstein mentions only one of them. The majority opinion
received just five votes. Given the rarity of concurrences at the time,2 69 it is
entirely possible, perhaps likely, that not every Justice agreed with each of the
Court’s rationales. Ind eed, it is possib le that none of the rationales, taken
individually, wo uld have rec eived a ma jority.
B. West Coast Hotel
The language quoted by Sunstein from West Co ast Hotel appears as an
afterthought in that opinion, “an additional and compelling consideration which
recent economic experience has brought into a strong light.” 270 The West Coast
Hotel Court’s primary argument d id not directly co ntradict Lochner’s protection
of liberty of contra ct. 271 Rather, the Court argued that liberty of contract was
merely a subset of liberty. Legislatures were permitted to abrogate it in the public
26 8
Justic e Sutherland, who wrote Adkins, was undoubtedly sincere in his advocacy of wom en’s
rights, having been an advocate of women’s suffrage and the Equal Rights Amendment in his earlier
political career. See Speech of Senator George Sutherland of Utah, at the Woman Suffrage Meeting,
Belasco Theater 3-4 (Dec. 13, 1915) (“To m y own m ind the rig ht of wom en to vote is as obvious as
m y own. . . . women on the average are as intelligent as men, as patriotic as men, as anxious for good
government as men. . . . to deprive them of the right to participate in the government is to make an
arbitrary division of the citizenship of the country upon the sole ground that one class is made up of
men, and should therefore rule, and the other class is made of women, who should, therefore, be
ruled.”). Sutherland was an adviser to Alice Paul, leader of the National Woman’s Party, wh ich
advocated an Equal Rights Amen dment that, among other things, would have banned special
protective legislation for wome n. See Reva B. S iegel, She the People: The Nineteenth Amendment,
Sex Equa lity, Fede ralism , and th e Fam ily, 115 H ARV. L. R EV. 94, 1013 (2002). Felix Frankfurter
attacked Sutherland’s opinion in Adkins as a “triumph for the Alice Paul theory of constitutional law,
which is to no little extent a reflex of the thoughtless, unconsidered assumption that in indus try it
makes no difference whether you are a man or w oman.” Quote d in E LIZABETH F AULKNER B AKER,
P ROTECTIVE L ABOR L EGISLATION: W ITH S PECIAL R EFERENCE TO W OMEN IN THE S TATE OF N EW Y ORK
98 (1925).
Just one year after Adkins, the Court upheld a law banning night work for women, because common
knowledge suggested that women have weaker constitutions than have men. Radice v. N ew York,
264 U.S. 29 2, 293-95 (1924). By contrast, in Adkins the Court argued that women were just as
capa ble of negotia ting a fair wage contract as were men. No doubt an additional in factor in Racine
was a disinclination by the Court to overrule Miller v. Oregon.
269
For an interesting recent article on the “norm of consensus” on the Supreme Court in past
generations, see Lee Eps tein, et al., The Norm of Consensus on the U.S. Suprem e Court, 45 A M . J.
P OL. S CI. 362 (2001).
270
West Coast H otel v. Parrish, 300 U.S. 379, 39 9-400 (1937).
271
See A CKERMAN , supra note 2, at 364 (“Hughes ’s opinion cited Lochner with approval, accepted
the idea that the Due Proce ss C lause conta ins a prin ciple o f free dom of con tract, and p atien tly
reviewed the cases limiting this basic Lochnerian principle.”); J ULIE N OVKOV, C ONSTITUTING
W ORKERS, P ROTECTING W OMEN : G ENDER , L AW , AND L ABOR IN THE P ROGRESSIVE E RA AND N EW
D EAL Y EARS 12 (2001) (“ West Coast Hotel represented the logical extension of a line of development
that had started before the turn o f the centu ry.”); N OVKOV, supra, at 14 (“West Coast Hotel emerges
not as a case in conflict with earlier jurisprudence, but rather as an opinion in dialogue with cases such
as Lochner, Muller v. Oregon, and Adkins v. Children’s HospitaI).
SPRING 2003
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Bernstein
interest, as other Sup reme Co urt preced ents during the Lochner era had shown. 272
Given economic conditions during the Depression, the Court could not say it was
unreasonab le for a state legislature to try to guaran tee wome n workers a living
wage, even if the statutory means chosen harmed potential workers who could not
command the minimum.273
West Coast Hotel also exhibited le ss solicitude for women’s righ ts than did
Adkins. The West Coast Hotel Court adopted a more traditional, patriarchical
view of women’s place in society, stating that “though limitations upon personal
and contractual rights may be removed by legislation, there is that in [women’s]
disposition and habits of life which will operate a gainst a full assertion of those
rights.” 274 Like the necessitous miners of Holden v. Hardy, women could not be
expected on to pro tect their own inte rests. The majority noted that the Court had
acknowledged women’s sp ecial vulnerab ility in Muller v. Oregon.275 West Coast
Hotel also cited Chief Justice Taft’s dissent in Adkins276 and the Co urt’s opinion
in Radice v. New York, 277 a 1924 case upholding a law banning women from
working at night in restaurants, as further support for the view that special
protection for women workers d id not violate th e Constitution . The wo men’s
rights part of the C ourt’s holding also did not de pend on a rejection o f Lochner
era jurisprude nce, beca use the opin ions the Co urt relied upon— Muller, Taft’s
dissent in Adkins, and Radice—wer e well within the moderate Lochnerian
mainstream.2 7 8
As we have seen, Sunstein’s reliance on the quoted excerpts from Adkins and
West Coast Hotel does not give the reader anything close to a full picture of what
was going on in those cases, or in the Lochner era as a whole. But even
considering only the language Sunstein excerpts, his interpretation of the meaning
272
See Charles W . McC urdy, The Liberty of Contract Regime in American Law, in THE S TATE AND
F REEDOM OF C ONTRACT 161, 194 (Harry N. S cheiber, ed. 1998) (“W hat the Court’s 1937 decision
firm ly establishe ed was that in cons titutio nal law , at lea st, th e labo r con tract c ould not be regarded as
a special one. The presum ption of constitutionality applied to labor laws.”).
273
West Coast Hotel, 300 U.S. at 398-400.
274
Id. at 394-9 5. By con trast, Su therland w rote in diss ent: “ The common law rules restricting the
power of women to make contracts have, under our system, long since practically disappeared. Women
today stand u pon a lega l and political eq uality with men. There is no longer any reason why they s hould
be put in different classes in respect of their legal right to make contracts; nor shou ld they be denied,
in effect, the right to compete with men for work paying lower wages which men m ay be willing to
accept. And it is an arbitrary exercise of the legislative power to do so.” Id. at 411-12.
275
Id. at 394 (citing Muller v. Oregon, 208 U .S. 412 (1908)).
276
Id. at 395-9 6 (citing A dkins v. C hildren’s Hosp ., 261 U .S. 525 (1923 ) (Taft, C.J., dissenting)).
277
Id. at 397 (citing Radice v. New Y ork, 264 U.S. 292 (1924)).
278
Taft’s opinion in Adkins fits in this category, even though it was a dissent. In 1917, the Court
had split 4-4 on the issue of minimum wages for women, Stettler v. O’Hara, 243 U.S. 629 (1 917),w ith
Brandeis, who would have been the fifth vote to uphold the law, recused.
Curiou sly, Justice M cKenn a, who v oted with the majority in Adkins (and Lochner), also voted with
the majority in Bunting v. Oregon, the 1917 case upholding a maximum hours laws for industrial
wor kers. Had M cKenna s witched his vo te, Adkins would h ave been a 4-4 dec ision (wit h Brandeis
again recused ). Perha ps M cKenn a’s vote was the reason T aft raised h is belief tha t Lochner had been
overruled sub silentio in Bunting. In any event, Taft shared the general premises of Lochnerian
jurisprudence, but disagree d with th e majo rity in this ins tance. O ne mu st recall that Lochner was an
extre mely close case, and that all of the dissenters save Justice Holmes shared the underlying premise
of the m ajority that libe rty of contrac t is a fund amen tal right.
50
Lochner’s Legacy’s Legacy
of West Coast H otel’s rejection o f Adkins is highly question able. Acco rding to
Sunstein:
In Adkins, the Court saw minimum wage legislation as
requiring a subsidy to the public from an innocent employer.
Such legislation was thu s a kind of “taking” from A to B.
According to the Court, if B is needy, it is not A, but the pu blic
at large, who should pay. In West Coast Hotel, it is the failure
of a state to have minimum wage legislation that amounts to a
subsidy--this time, from the public to the employer. The
common law system, for the West Coast Hotel Court, turns out
to subsidize “unconscio nable emp loyers.” 2 7 9
Recall that Sunstein explained earlier in Lochner’s Legacy that “the common
law system” means the “allocation of rights of use, ownership, transfer, and
possession of property associated with ‘laissez-faire’ systems and captured in the
common law of the late nineteenth century.” 280 Yet in West Coast Hotel, the
laissez-faire system of common law rights is not providing a subsid y to
employers. Rather, the public welfare system is the source of the subsidy, a point
further emphasized by the Court in language deleted by Sunstein and replaced by
ellispses.2 8 1
The language Sunstein quotes from West Coast Hotel, then, assumes a baseline
of governm ent inaction. H ad the gov ernment no t established a welfare system,
unconscio nable employer s would no t have been able to rely on the public fisc to
subsidize their exploita tion of wom en worker s by paying them less than their
market wage.2 8 2 At least under the rationale of the West Co ast Hotel dicta quoted
279
Sunstein, supra note 37, at 876 (emp hasis added).
Id. at 882 n.49.
281
The language deleted by Sunstein is as follows: “We m ay take judicial notice of the unparalleled
demands for relief which arose during the recent period of depression and still continue to an alarming
extent despite the degree of economic recovery wh ich has been achieve d. It is unnec essary to cite
offic ial statistics to establish what is of common knowledge through the length and breadth of the
land. While in the instant case no factual brief has been presented, there is no reason to doubt that the
state of Washington has encountered the same social problem that is present elsewhere.” Parrish, 300
U.S. at 399.
282
This arg umen t did not appear in the West C oast H otel briefs, but a very similar argument was
made by Fe lix Fra nkfu rter, a lbeit w ith less emphasis on public relief payments as the source of the
subsid y, in the brief he wrote in Adkins v. Children’s Hospital. Brief for Appellants, Adkins v.
Children’s Hosp. (N os. 795 & 796), 261 U.S. 525 (1923 ). Brief fo r Appe llants at xlii-xliii.
Frankfu rter explain ed:
If the employer and women employees, whose wages are below the established
m i n im u m , were co mpletely iso lated from all reliance up on the ou tside pu blic no bar gain
for employment at less than a living wage would be possible, because the deficit between
the propo sed p aym ent fo r the la bor a nd th e cos t of its prod uctio n and mai nten ance could
not be supplied—or, certainly, cou ld not b e supplied for long and maintain American
standards of civilization. Without assistance from the public in som e form or other no
employer could obtain labor below cost nor could any woman give it. In other words, a
contract for labor below its cost must inevitably rely upon a sub sidy f rom outsi de, o r resu lt
in human deteri oration. T o the exte nt of this su bsidy, or th e deteriora tion, the p ublic is
necess arily concerned; thereby the public is drawn into the situation; it is not an
intermeddler.
280
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Bernstein
by Sunstein, in the baseline world of a pure laissez-faire system, minimum wage
laws could no t logically pass constitutional muster. Precisely because the
government had acted, however, employers could no longer claim the rig ht to
liberty of contract, but not because the lack of minimum wage laws is inherently
a subsidy to employers, as Sunstein would have it. Rather, an employer cannot
claim the right to liberty of contract when what he is really asking for is the
liberty to loot the public fisc.
Moreover, later Supreme Court cases show no awareness of wha t Sunstein
claims was the West Coast Hotel Court’s decision to reject government inaction
as a baseline for constitutional analysis. Sunstein would be on sound theoretical
ground if he argued that the West Coast Hotel Court missed a golden opportu nity
to reject traditional baseline analys is in favor of a legal realist perspective that
treated the status quo as a product of government decisions, just as changes to the
status quo result from government decisions. But his claim that the Court ac tually
adopted this analysis is untenable.2 8 3
C ONCLUSION
According to Cass Sunstein’s influential article, Lochner’s Legacy, the Lochner
era Court believed that common law rules were imm utable and prepolitical, and
the Court therefore sought to protect status quo distributions of wealth from
legislative intervention. Sunstein deserves credit for breaking with cruder
interpretations of Lochner that dominated the legal literature before he published
This may beco me s till clearer if we frame the implicit terms of the negotiation which the
employer demands the unconditional right to make with women employees.
Employer:
“I am to pay to you and you are to receive from me $35 .00 a month (and board). You are
to give to me and I am to receive from you all your working en ergy.”
Woman Em ployee:
“But, sir, this working energy, of which you are to receive the total, costs at the very
least $166.50 a week. How are we to get the balance?”
Emp loyer:
“We can get it at least in one of three ways: (1) members of your family engaged in other
industries will supply it rather than see you starve, or (2) you can “go w ithout” or (3 ) you can g et it
from pub lic or private charity.”
This is a plain case of relying upon a public subsidy for a private interest, and a State or Congress,
acting f o r t h e D istrict, has a special right to impose conditions upon which the industry or the
employe e may e njoy the s ubsidy or even to ref use it abs olutely.
283
McCurdy notes the New Deal Court ’s failure to adopt the Progressive/Realist agenda. McCurdy, supra note 272, at 196 (“At no point did the Court suggest that contracts between parties w ith
unequal bargainin g strength were in herently coercive. At no point did it endorse the concept of
‘positive liberty.’ And at no point did it embrace the m ethod of ‘sociological jurisprudence.’”); see
genera lly Winter, supra note 78, at 1523 (also disp uting Su nstein ’s understanding of West Coast
Hotel).
52
Lochner’s Legacy’s Legacy
Lochner’s Legacy. 2 8 4 Sunstein recognizes that the Justices were attem pting to
enforce what they saw as the traditional rights and liberties of the American
people.
Where Sunstein errs is in a rguing that th e Lochner era Court’s vision of such
rights was limited to, and coextensive with, the Langdellian common law.2 8 5
Similar understand ings of Lochnerian jurisprudence had been floating around the
legal academy for deca des, with believers in sociological jurisprudence,2 8 6 Legal
Realists, 2 8 7 and Critical Legal scholars, 2 8 8 successively, attacking Lochnerian
284
The standard view had been that the pro-Lochner Justices were either cold-hearted reactionaries
or foolish buffoons (or both!) who intentionally sought to protect the interests of large corporations
at the expense of workers. E.g., D ERRICK A. B ELL, J R., R ACE, R ACISM AND A MERICAN L AW 42 (3d
ed. 1992) ; P AUL B REST & S ANFORD L EVINSON, P ROCESSES OF C ONSTITUTIONAL D ECISIONMAKING
228 (2d ed. 1983) ; R ICHARD H OFSTADER , S OCIAL D ARWINISM IN A MERICAN T HOUGHT 5-6 (rev. ed.
1955); C LYDE E. J ACOBS, L AW W RITERS AND THE C OURTS: T HE INFLUENCE OF T HOMAS E. C OOLEY ,
C HRISTOPHER G. T IEDEMAN , AND J OHN F. D ILLON UPON A MERICAN C ONSTITUTIONAL L AW 24 (1954);
R OBERT G. M CC LOSKEY , A MERICAN C ONSERVAT ISM IN THE A GE OF E NTERPRISE , 1865-1910, at 26-30
(1951); A RNOLD M . P AUL, C ONSERVATIVE C RISIS AND THE R ULE OF L AW : A TTITUDES OF B AR AND
B ENCH, 1887-1 895, at 236 (1 960); B ENJAMIN T WISS , L AWYERS AND THE C ONSTITUTION: H OW
L AISSEZ F AIRE C AME TO THE S UPREME C OURT 154 (1942); M ORTON W HITE, S OCIAL T HOUGHT IN
A MERICA: T HE R EVOLT A GAINST F ORMALISM 104 (194 9); Ronald F. H owell, The Judicial
Conser vatives T hree Decades Ago: Aristocratic Guardians of the Prerogatives of Property and the
Judiciary, 49 V A. L. R EV. 1447 (1 963); Alpheus Thom as Maso n, The Conservative World of Mr.
Justice Sutherland, 1883-1910, 32 A M . P OL. S CI. R EV. 443, 470 (1938); Fran k R. Strong, The
Econo mic Philosophy of Lochner : Emergence, Embra sure and Emasculation, 15 A RIZ . L. R EV. 419
(1973); Roscoe P ound, The Scope an d Purpose of So ciological Jurisprudence, Par t II, 25 H ARV. L.
R EV. 489, 496 -99 (1912 ).
285
The Lochner era Court was indeed committed to preserving the “common law,” but what they
meant by this was the fundam ental rights of the Anglo-American people, not specific common law
rules. Some of these rights were coextensive with common law rules, but the Court’s understanding
of the rights it needed to preserve excluded many common law rules, and included rights not protected
by common la w doctrine, including th e free-floating right of liberty of contract. See David E.
Bernstein, Besieging “The Cons titution Be sieged”: Unde rstand ing the T rue O rigins o f Lochner
(submitted for publication 3/2003).
286
E.g., Roscoe P ound, Common Law and Legislation, 21 H ARV. L. R EV. 383 (1908). For critiques
of the Lochner era Court’s purported formalism, see Louis D. B randeis, The Living Law, 10 ILL. L.
R EV. 463, 467 (1916) (bemoaning the alleged abstract reasoning and legal formalism that led judges
to invalidate reform legislation); Roscoe Po und, Mechanical Jurisprudence, 8 C OLUM . L. R EV. 605, 616
(1908) (attacking the Court for invalidating laws based on logical deduction rather than the effect the
law had on a specific fa ctual situatio n); Frankfurter, supra, note 13, at 364 (accusing courts of relying
on “a priori theories” and “abstract assump tions” in liberty of contract cases).
287
E.g., Robert Hale, Barga ining, D uress, a nd Eco nomic Liberty , 43 C OLUM . L. R EV. 603 (1943);
Robert Hale, Coercion and Distribution in a Supposedly N oncoe rcive Sta te, 38 P OL. S CI. Q. 470
(1923) (arguing that bargaining power is a func tion of legal rules and not part of pre-existing natural
order); see generally T h om as C. Gre y, Langde ll’s Orthodo xy, 45 U . P ITT. L. R EV. 1, 39 (1983);
(“Progressive and later New Deal lawyers saw classical orthodoxy as a form of conse rvative ideo logy.
In part this was a confusion of Langdellian legal science with the laissez-faire constitutional doctrines
epitomized by the Lochner decision.”); Gre y, supra note 77 (“Starting with Holmes in the 1890s,
reformist American legal thinkers yoked the private-law conceptualism of Langdell and his followers
to the a ctivis t class ical-lib eral ju dicia l revie w of t he Lo chne r era. In doi ng so , they crea ted a single
impressive and threatening bogeyman, Holmes’s ‘fallacy of logic,’ Pound’s ‘mechanical
jurisprudence,’ C ardozo’s ‘demon of form alism,’ and Felix Cohen’s ‘transcend ental nonsense.’”);
J a m es Wilson, The Morality of Formalism , 33 UC LA L. R EV. 460 (1 985) (n oting that the Legal
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Bernstein
jurisprudence for its purported formalism. If Langdellian jurisprudence ossified
the common law of torts, contracts, and property, by assuming that it was
“natural” and could be used to create a “science of law,” the Lochner era Justices
compounded the sin by formalistically constitutionalizing the common law.2 8 9
Sunstein was the first modern scholar to clearly articulate this historical
understanding of Lochner, 2 9 0 and, importantly, to use it to engage in a wideranging critique of “Lochner-like presumptions” in modern constitutional law.2 9 1
Realists attacked Lochner and its progeny as formalistic).
288
Kenned y, Form and Substance , supra note 79, at 1746 , 1747 (explainin g that und erlying th e
theory of laissez fa ire was th e view th at “the ou tcome o f econom ic activ ity within a common law
framework of contract and tort rule mechanically applied would be a neutral allocation of resources
and distribution of incom e”; if t his w as tru e, “it m ade s ense to des cribe the leg al ord er itse lf as at least
neutral and nonp olitical if not really ‘natural’”); Kennedy, Toward an Hist orical Understanding,
supra note 79, at 9-14 (arguing that the Lochner Justices, minus Holm es, agree d that the C ourt’s m ain
function was a limited one, to “ca rry out the objective task o f classification”).
289
William P. La piana, Thoughts and Lives , 39 N.Y.L. S CH. L. R EV. 607, 624 (1994) (“Lan gdell
and to some lesser degree his colleagues at Harvard Law School were lumped with the bad guys and
made exemplars of a wooden and over- intellectualized approach to law. It is as if Langdell and the
early advocates of legal education founded on the case method were one with the justices of the
United States Supreme C ourt who produced the decision in Lochner v. New York .”). The association
of Langdellian formalism with Lochner remains a common o ne. E.g., Richard H . Pildes, Forms of
Formalism , 6 6 U . C HI. L. R EV. 607, 620 (1999) (“Formalism was a project of rationalizing the central
principles and m ethods o f the com mon law , for purp oses of b oth com mon law adjudic ation and , in
the Lochner era, for con stitutional do ctrines tha t drew on comm on law co ncepts.” ); Gerald B.
Wetlaufer, Systems of Belief in Mod ern American L aw: A View from Century’s End, 49 A M . U . L. R EV.
1, 4 (1999) (referring to “[t]urn-of-the-century formalism of the kind associated with Christopher
Columbus Langdell and his Harvard Law School associates and with the constitutional jurisprudence
of the Lochner court”); see gener ally Daniel J. Solove, The Darkest Domain: Deference, Judicial
Review, and T he Bill of R ights , 84 IOWA L. R EV. 941, 977 (1999) (noting “the prevailing wisdom that
the Lochner-era Court was rigidly formalistic” and explaining why this is incorrect).
290
Duncan K ennedy had m ade similar points, but not as coheren tly, and not a s access ibly, as his
work was not published in a la w review. See sources cited supra note 79. Mark Tu shnet and Mike
Seidman both su ggested to me that one reason that Sunstein’s article has b een so in fluential is tha t it
reflects ideas that were widespread among law professors when the article appeared, but had not been
properly articulated in the law review literature.
291
Lochner’s Legacy is a brilliant and provocative work of constitutional theory, even while being
weak in its claims re garding h istory. The brevity of h is historica l analysis su ggests tha t Sunste in did
not conceive of Lochner’s Legacy as a n original w ork of histo ry. In fact, Su nstein h imself s uggests
that the primary purpose of the Article was normative, to raise doubts about the foundations of mod ern
jurisprudence under th e First and Fourteen th Amendment, with a his historical analysis supplementing
his normative point, rather than the normative point flowing from historical research. See Sunstein,
supra note 37, at 875. And indeed, Lochner’s Legacy challenged complacent assumptions that the
status quo is a n atural baseline from which to jud ge the constitutionality of legislation.
Ironically, however, Lochner’s Legacy’s primary influence, if citations in Supreme Court cases and
law reviews are any indication, has been its understanding of the Lochner era, not its critique of status
quo base lines in m oder n con stitut ional jurisprudence. While the four liberal Justices have adopted
Sunstein’s historical thesis, none has expressed a willingness to reject status quo baselines. T his is
true even in the context of determining the constitutionality of campaign finance laws, s ee, e.g., Nixon
v. Shrink M issouri G overnm ent PA C, 528 U.S. 3 77 (20 01) (igno ring Sun stein’s u ndersta ndin g of
Buckley v. Valeo as Lochnerian), Sunstein’s favorite example in Lochner’s Legacy and other works
of how modern constitutional law repeats the mistake of Lochner. See, e.g., Sunstein, supra note 37,
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Lochner’s Legacy’s Legacy
While the anti-formalist critique of Lochner has satisfied a host of ideological
constituencies within the legal profession over the decades, there is scant
evidence that the Lochner era Court sought to constitutionalize common law
rules, or that it believed that status quo distributions of wealth were u nassailable
by legislation.2 9 2 Rather, the evidence strongly shows that the Lochner era Court
permitted legislatures to change common law rules for public policy reasons. The
Court even permitted the absolute abolition of common law rules, as in the case
of the substitution of preemptive statutory workers’ compensa tion for the
common law rules of employer liability for workers’ injury. Across a broad range
of cases and over several decades, the Lochner era Court declared that “no one
has a vested right in any particu lar rule of the co mmon law .” 2 9 3
The Court also upheld a wide range redistributive laws, ranging from antitrust
laws intended to help sma ll proprieto rs at the expen se of large co rporation s to
estate taxes to various ameliorative labor laws. Mo reover, Su nstein’s thesis
regarding Lochner cannot explain the Supreme Court’s civil liberties decisions
of the 1920s and e arly 30s, which were clearly intertwined with, and dependent
on, the infamous economic liberties cases, but had nothing to do with preserving
common law status quo distributions. Lochner’s Legacy, then, shows the danger
of applying an id eological c onstruct to co nstitutional history for presentist
purposes, while ignoring or neglecting contrary evidence.2 9 4
at 883-84; Su nstein, Free Speech, supra note 5 6, at 2 91-9 3; Su nste in, P olitica l Equality and
Unintended Consequences , supra note 56, at 1397-99.
292
See gen erally Grey, supra note 77 (“The joinder of Langdellian private-law theory and
Lochner-type public law to create a single impressive target—the Dem on of Formalism—was a
creative act on the part the P rogressiv e legal thinke rs, starting with Holmes. The two tendencies were
dissimilar in im porta nt wa ys, an d cou ld as easily have been ke pt distinct o r even se t in oppos ition to
each other. B ut Holm es, Pou nd, Ca rdozo an d the othe rs got them joined in the collective mind of the
profession, so that many Am erican lawyers have come to associate the evils of Lochner with
something called called formalism.”).
293
The precise quote is from Truax v. Corrigan, 257 U.S. 312, 329 (1921), but the s entime nt is
reflected in many other decisions.
294
Sunste in, how ever, has been m ore inclined to celebrate the cons titutional scholar’s “special
project” in loosely interpreting constitutional history than to engage in heavy historical lifting:
The historian is trying to reimagine the past, necess arily from a presen t-day stand point,
but subject to the discipline provided by the sources and by the interpretive conventions
in the relevant communities of historians. By contrast, the constitutional lawyer is trying
to contribute to the legal culture's repertoire of arguments and political/legal narratives that
place a (stylized) past and p resent in to a trajector y leading to a desired future. O n this
v i ew , the historically-minded lawyer need not be thought to be doing a second-rate or
debased version of what the profess ional historia ns do w ell, but is wo rking in a q uite
different tradition w ith overlapping bu t distinct criteria.
Cass R. Sunstein, The Idea of a Useable Past, 95 C OLUM . L. R EV. 601, 605 (1995 ).
Sunste in has been criticized in other contexts for making bro ad assertions based on dubious
historical analysis. Professor Ma rtin F laherty has dubbed Sunstein’s work on the “Republican
Revival,” which was largely contemporaneous with his work on Lochner, as “history ‘lite.’” Martin
S. Flaherty, History “Lite” in Modern American Con stitutionalism , 95 C OLUM . L. R EV. 523, 567-70
(1995). Anothe r one of S unstein ’s ventur es into history received the following assessment: “riddled
with errors of fa ct, distortion s of interp retation, an d omis sions of k ey evidence–even from the very
sources cited.” John O. M cGiniss, The President, the Senate, the Constitution and the Confirmation
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Bernstein
Unfortunately, scholarship about the Lochner era has consistently been distorted
by presentist concerns because Lochner has been the leading case in the “anticanon,” the group of wrongly decided cases that help frame what the proper
principles of constitutional interpretation should be.2 9 5 No scho lar who wanted
their work taken seriously could articulate a theory suggesting Lochner was
correctly decided, and it was de rigeur to show how one’s preferred theory of
constitutional interpretation was the prec ise oppo site of Lochner. The tenor of
Lochner’s Legacy, then, was what one would expect from a leading constitutional
theorist circa 1987.
Toda y, the willingness of mainstream constitutional scholars such as Bruce
Ackerman, 2 9 6 Owen Fiss,2 9 7 and Rebecca Brown 2 9 8 to use Lochner to support their
understanding of the Fourteenth Amendment suggests that Lochner is finally
starting to lose its anti-canonical status. Meanwhile, there has been an explosion
of serious historic al scholarship about Lochner over the last decade,2 9 9 which, one
assumes, will ultimately preempt Sunstein’s far more casual analysis.
Constitutional history does not support M r. Cass Sunstein’s Lochner’s Legacy. 3 0 0
Process: A Reply to Professors Strauss and Sunstein , 71 T EX . L. R EV. 633, 634 (1993 ). The works
criticized in the above-cited articles have not had nearly the influence of Lochner’s Legacy.
295
See Balkin & Levin son, supra note 2; Prim us, supra note 2.
296
See A CKERMAN , supra note 2.
297
See Fiss, supra note 16.
298
See Brown, supra note 35.
299
See Rowe, supra note 3 (reviewin g recent Lochner scholarship). My own views regarding the
origins of Lochner era jurisprud ence are exp ressed in B ernstein, supra note 1 62. In brief, the Justices
of the Lochner era were historicists, and were attempting to preserve the rights and liberties that they
saw as fundamental to the growth and prese rvation of A nglo-Am erican liber ty, while de ferring to
traditional exercises of the states’ police power.
300
The allusion, of course, is to Jus tice Holm es’s fam ous aph orism th at “the Fou rteenth
Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Lochner v. New York, 198 U.S.
45, 75 (1905) (H olmes, J., dissenting).
56