Bench Memos

Law & the Courts

Rehabilitating ‘Constitution in Exile’ Scaremongering?

A decade ago, various commentators on the Left were warning about the threat to the New Deal posed by libertarian adherents of the supposed “Constitution in Exile” movement. As Orin Kerr summed up the phantom menace, if the movement existed at all, it “consist[ed] of three dudes meeting for dinner once in a while.”   

In the intervening years, I think it’s fair to say that the dinner group has gotten larger and that the libertarian influence on the constitutional thinking among conservatives has (for better or worse) expanded considerably. But Brian Beutler’s interesting New Republic article “The Rehabilitationists” extravagantly exaggerates the prospect that constitutional libertarians will succeed in their goal of “rehabilitating Lochner—the 1905 Supreme Court ruling that invalidated a state maximum-hours law for bakery workers. The subheadline of Beutler’s piece fairly captures his thesis: “How a small band of determined legal academics set out to persuade the Supreme Court to undo the New Deal—and have almost won.” (Emphasis added.)

Some observations:

1. It’s far from clear what the libertarian goal of “rehabilitating Lochner” actually means. In its strong version, that goal presumably would be to read into the Due Process clauses of the Fifth and Fourteenth Amendments a substantive “liberty of contract” that would render invalid a broad array of federal and state laws on economic regulation and social welfare (including much of the New Deal).

But it’s worth noting that the most prominent advocate of rehabilitating Lochner—law professor David E. Bernstein, who literally wrote the book Rehabilitating Lochner—makes a far more modest argument. Bernstein doesn’t even argue that Lochner was correctly decided. He seeks merely to “improv[e] Lochner’s reputation”—to remove it from the “anticanon” of indefensible constitutional rulings and to instead have it “treated like a normal, albeit controversial, case.” Among other things, he argues that there was no Lochner era”—that the Court’s “liberty of contract decisions were far more deferential to regulatory legislation than the standard myth would have it.”

2. Beutler clearly has in mind the strong version of rehabilitating Lochner. But he conveniently fails to mention the most compelling evidence that there is no support for that goal among any of the current justices: Chief Justice Roberts’s dissent in Obergefell v. Hodges. In that dissent, Roberts, joined by Justices Scalia and Thomas, condemned the majority’s invention of a constitutional right to same-sex marriage as resting on the discredited methodology of Lochner: the justices’ imposition of their own “naked policy preferences.” And although Justice Alito wrote his own dissent, there is nothing in his record to suggest that he is an admirer of Lochner.

3. Beutler claims that the Commerce Clause ruling in the first Obamacare case—i.e., that Congress did not have power under the Commerce Clause to mandate the purchase of insurance—“was Lochner cloaked in fresh garb.” But that narrow ruling does not suggest any broader curtailment of Congress’s powers under the Commerce Clause (or any other constitutional provision).

4. In short, I see no basis for the subheadline’s assertion that libertarians “have almost won” their battle “to persuade the Supreme Court to undo the New Deal.” By my count, they’re five votes short of the five votes needed to revive Lochnerism, and they’re four votes short of the votes needed to impose serious limits on Congress’s Commerce Clause power.

Per the usual editorial processes, I’ll assume that Beutler isn’t responsible for the subheadline. But his claim that appointment of a single “Lochnerian” to replace Ginsburg, Breyer, Kennedy, or Scalia “will change the Court profoundly” and that “If more than one of them steps down [and is replaced by a Lochnerian], the Court will become unrecognizable” is of the same ilk. It’s bad math evidently designed to scare his progressive readers.

5. Beutler rightly credits Randy Barnett with building the influence of constitutional libertarianism among conservatives. I mean no disrespect to Barnett in noting that the enthusiastic reception he won at a Federalist Society convention is no measure of the influence of libertarianism in the broader legal culture. Indeed, I suspect that Barnett would heartily agree that progressives dominate legal academia and that both libertarians and conservative advocates of judicial restraint are barely a presence at most law schools. 

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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