Magazine | August 29, 2011, Issue


Lochner in Rehab

Reading Joseph Tartakovsky’s review of David Bernstein’s Rehabilitating Lochner (“Rights Revisited,” July 4), I got the sense that both gentlemen embrace the proposition that the 1905 Lochner decision was “a defensible application of a long-standing natural-rights tradition of individual liberty” and “that the logic of ‘liberty of contract’ is really the logic of unenumerated rights . . . whose existence we deduce from proper understandings of liberty.”

First of all, the Lochner decision — in which the Supreme Court struck down a state law limiting how many hours bakery employees might work, and held “liberty of contract” to be a Fourteenth Amendment right — has been justly criticized because the justices “deduced” an erroneous understanding of the word “liberty” as used in the due-process clause of the Fourteenth Amendment. Liberty in the due-process clause had a defined meaning for the amendment’s framers. It was passed down from Locke, Blackstone, and the founders, and was correctly cited by Justice John Harlan in Plessy v. Ferguson:

“Personal liberty,” it has been well said, “consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever places one’s own inclination may direct without imprisonment or restraint unless by due course of law.”

As to the matter of “natural rights,” it is disheartening to read a favorable review in your magazine of a book that promotes that concept as an acceptable consideration for the Supreme Court. I would think that conservatives would be more likely to align themselves with an observation by Justice John McLean: “It is for the people . . . in making constitutions and in the enactment of laws, to consider the laws of nature. . . . This is a field which judges cannot explore. . . . They look to the law and to the law only.”

James W. Cotter

Via e-mail

Joseph Tartakovsky replies: I thank Mr. Cotter for his letter, but I would observe, first, that Justice Harlan, cited by Mr. Cotter for his “correct” understanding of the word “liberty,” wrote a dissent in Lochner in which he agreed that “liberty of contract” existed — he just felt it hadn’t been violated in this particular case. Second, the sentence quoted from Harlan’s Plessy opinion is really a quote from William Blackstone, who, in his next sentence, told us that “personal liberty” was a “right strictly natural.” Natural law, contrary to Mr. Cotter’s suggestion, does not merely shift control from the legislature to the courts — that’s a positivism of a different kind. Rather, it requires that judges enforce the will of the people, as expressed in the Constitution, always. But when difficult questions arise — what, concretely, does that immortal document say about police searches through walls using heat-imaging technology? — natural law is a wise and often unavoidable way to discern their intent.

NR Staff — Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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