Bench Memos

Loving Lochner, Once Spurned

George Will’s column today is a rave for David Bernstein’s new book Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform.  I’ve said before that one of the great uses of book reviews, for us mere mortals pressed for time, is that they help us to decide what books to skip–and not just bad ones, but even good ones that we decide are not the best use of our time.  (And you can learn a book is bad from a rave, or good from a pan, but you already knew that, dear reader.)  I have not read Bernstein’s book, but I have now read four things about it, and somehow feel compelled to comment about those things.

First I read Joseph Tartakovsky’s thoughtful review in NR’s July 4 issue (digital subscribers can find it here).  From it I learned that Bernstein tries to situate the Lochner case in its history, arguing it was “a defensible application of a long-standing natural-rights tradition of individual liberty” (in Tartakovsky’s description).  Since I think Lochner rests on an utterly indefensible fiction about the jurisprudential norms universally accepted at the time of the founding, this might have drawn me in, to see if there is a contrary argument I should consider.  But I also learned that “Bernstein spends a mere four pages on the actual Lochner decision,” instead treating its pre-history, its contemporaneous political context, and its legacy at length.  Hmm.  Didn’t sound like I’d encounter an actual “rehabilitation” of Lochner at all, not in jurisprudential terms anyway.  So I moved on.

Then I read a deeply hostile review by Baltimore attorney and Cambridge fellow George W. Liebmann at the Law and Politics Book Review, a respected scholarly outlet.  Liebmann led with: “This tendentious monograph is essentially a brief for ‘conservative’ judicial activism,” and it was not uphill from there.  Ouch.  This review prompted Bernstein to request space to reply, whereupon he published a brief complaint against Liebmann that denied that he wanted (in Liebmann’s words) a “return to economic [substantive] due process,” and went on to say this (my emphasis):

[T]he book draws no normative conclusions about current constitutional practice and indeed explicitly disclaims such conclusions. As I write on page six of the book, “even the soundest history cannot provide a theory of constitutional interpretation, nor can it dictate one’s understanding of the proper role of the judiciary in the American constitutional system.” The history I present, therefore, is inherently agnostic on whether Lochner or any other case discussed in the book was correctly decided, much less on the proper outcome of broad contemporary debates about “judicial activism.” Liebmann should have reviewed the book that was actually written, not the strawman-of-a-book that he proceeds to knock down.

Well, once again–ouch.  If Bernstein has correctly characterized his own book, it cannot be held up as a real “rehabilitation” of Lochner on jurisprudential grounds.  (This comports more or less with Tartakovsky’s description in NR too.)  The author does not like the dominant historical narrative, in which Lochner is treated as merely a product of laissez-faire ideology.  He offers a revisionist history in which the Progressives assault the ruling because they don’t like its results, while Bernstein (I guess) thinks its results are defensible and the ruling itself “normal” in historical terms.  But of legal categories, of the proper scope then or now of the judicial power, and of the correct reading of the due process clause, he has nothing really to say–or so he claims in this response to a negative review.

Now comes George Will’s column, claiming that if one wants to “understand why the court correctly decided Lochner v. New York and why this is relevant to current arguments,” one must read Bernstein’s book.  But other than the fact that Will views it positively, this is exactly the characterization given Bernstein’s book by Liebmann in his hostile review.  And Bernstein did not so much dispute the hostility as the accuracy of the characterization.  In other words, he has pre-repudiated George Will’s rave.  Oh dear.

Leaving Bernstein to one side (and I am still not sure I will read his book, but I can recommend this by Paul Kens), what to make of George Will’s enthusiasm for the Lochner ruling?  This is the same George Will who in 1996 described Lochner as standing for the proposition that “the court can overturn laws it considers unwise.”  Later the same year, he called Lochner’s brand of substantive due process the “tendentious doctrine that many government actions distasteful to judges can be baldly declared to be the results of constitutionally impermissible processes.”  As recently as a year and a half ago, Will called substantive due process “intellectual applesauce” –though to be sure, by then he was willing to sup on something quite as bad, the judicial invention of “privileges or immunities” to be protected by those words in the Fourteenth Amendment.  And in early 2009, describing California’s then-attorney general Jerry Brown’s argument in an early stage of the Prop 8 case, Will could still write this: “What is natural justice? Learned and honorable people disagree. Which is why such consensus as can be reached is codified in a constitution.”  Exactly.  And Lochner’s resort to “natural justice” reasoning brings it exactly within Will’s critique, which makes his enthusiasm for it today quite inexplicable.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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