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Rights Revisited

by Joseph Tartakovsky

Rehabilitating Lochner: Defending Individual Rights against Progressive Reform, by David E. Bernstein (Chicago, 208 pp., $45)

In the 1890s, in Utica, N.Y., there lived a small-time baker named Joseph Lochner. In surviving pictures, he looks like a Bavarian Yosemite Sam, and he had a personality to match. But his problem wasn’t rabbits; it was baking unions. In 1895, the union boycotted him for violating its regulations. He was defiant. In 1899, the union instigated a prosecution against him that led to costly fines. A second boycott led, in 1902, to criminal charges. His crime was to employ an apprentice for more than 60 hours in a week, in violation of New York’s Bakeshop Act. That law’s constitutionality was argued all the way to the Supreme Court, and finally the law was struck down. Lochner v. New York (1905) would become a hated symbol, perhaps the symbol, of judicial overreach: Why should nine well-to-do judges have power to tell a state that it cannot protect its panting, toil-worn bakers against health-shattering employment practices?

David E. Bernstein, a law professor at George Mason University, has written on the Lochner case for over a decade, and this new book lays out his concentrated wisdom on the subject. His thesis is that the Lochner decision was, despite its reputation, a defensible application of a long-standing natural-rights tradition of individual liberty and a disapproval of what the Court saw as special-interest or “class” legislation. He finds that most Americans in 1905 likely agreed with the decision, and also that the fin-de-siècle Court — far from being representative of a laissez-faire “era,” as scholars today claim — actually upheld the vast majority of regulatory laws it reviewed. Finally, Bernstein argues that, even though it was later overruled, Lochner has progeny to be proud of: other decisions that protected individual rights against state interference.

So how did the decision become so hated? Bernstein blames the “ferocious” mischaracterization of it by the Progressives. The Progressive movement sought to use the power of the state to redress labor imbalances, redistribute wealth, enlarge bureaucracy, and otherwise turn us into Wilhelmine Germany. When Justice Holmes dissented in Lochner, asserting the “right of a majority to embody their opinions in law,” even if his fellow justices might personally find those laws “tyrannical,” he became (says Bernstein) a “Progressive idol.” Holmes’s famous quip — “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics” — was later misread as an attack on Social Darwinism; in fact, Holmes was accusing the Court of forcing upon voters a form of laissez-faire economics. It was the Progressives who were Darwinists, and proudly so. Woodrow Wilson wrote that the Framers failed to understand that our government was “accountable to Darwin, not to Newton.” Natural rights, said Roscoe Pound, a leading Progressive theorist who, suitably enough, had been trained as a botanist, worked to “obstruct the way of social progress.”

Some progress it was. Bernstein spends a mere four pages on the actual Lochner decision. The bulk of the book is devoted to showing that it was the forces hostile to Lochner that produced the real embarrassments, including sex-discrimination laws, racial-segregation laws, coercive eugenics, and even an attempt to abolish private education. In 1895, Illinois’s highest court struck down a law that limited women’s working hours to eight; it was framed as a health measure to protect physically frail females and their childbearing capacity. But in 1908, in the Supreme Court, through the medium of attorney Louis Brandeis and one of his renowned, fact-filled “Brandeis briefs,” the Progressives won a victory in upholding a similar law enacted in Oregon. People “cry Equality, Equality, where Nature has created inequality,” wrote Florence Kelley, a leading Progressive feminist. By contrast, it was Lochner-like reasoning that carried the day in Adkins v. Children’s Hospital (1923), which declared that minimum-wage laws for women (often making them unemployable) violated the 14th Amendment by interfering with one’s right to work — regardless of sex.

Liberal scholars have tried to connect Lochner to Plessy v. Ferguson (1896), the infamous “separate but equal” case. But Bernstein reminds us that Plessy, unlike Lochner, upheld the majority’s “embodying” its opinions in the law. Progressives excluded blacks from leading unions and generally supported segregation, which is easy to do when you take your first principles not from philosophy but from messes of statistics about “biology” and “race hostility.” The true heir to Lochner in the race context, says Bernstein, is the underappreciated Buchanan v. Warley (1917), which held that a Kentucky law prohibiting the sale of property in residential neighborhoods to blacks violated the 14th Amendment’s protection of contractual liberty: Sellers could deal in property as they wished. Bernstein believes that this decision “inhibited state and local government from passing more pervasive and brutal segregation laws akin to those enacted in South Africa.” A student writing in the Yale Law Journal attacked the Court for putting an individual’s property rights above the public interest in segregation; in doing so, he was only emulating the views of his Progressive professors.

Bernstein writes in a plain, clear style, and moves his story along at a brisk pace. This is a slim volume (though the small type makes it appear slimmer than it actually is), yet he manages to course through a century of shifting, complicated case law. He has also trawled through the microfilm and carefully selected his evidence, especially from contemporary papers. (Both the New York Times and The Nation cheered Lochner, this most “reactionary” of opinions.) Bernstein’s very title discloses his revisionist intent, but no axe is heard grinding in the background. He writes in an open-minded, mild-mannered, and confident tone.

The key to Bernstein’s account of Lochner is the understanding that the law in question was not a health regulation, which the Court would have hesitated to upend, but a labor regulation. In technical terms, Lochner held that the Due Process Clause of the 14th Amendment protected what was called “liberty of contract,” the broad right to sell your own free labor to earn a lawful living, for as many hours as you wished, without arbitrary restriction. The Court saw in the Bakeshop Act a suspicious exercise of power. It was modeled on an English predecessor, but with the union-urged addition of a maximum-hour provision: no more than ten a day or 60 a week. The law was codified not under the health section of the New York Code, but among its labor provisions. Lochner’s counsel offered medical figures to show that bakers had mortality rates comparable to those of cabinet makers. And if baking was so dangerous, he asked, why didn’t the law also cover bakers in hotels, restaurants, pie shops, clubs, or homes? Bernstein believes the law was the product of lobbying by larger, unionized bakeries, which rarely had to work employees more than ten hours. It was a way for them to squeeze their competitors in cellar-dwelling Jewish, Italian, and French bakeries.

The State of New York had arguments to oppose Lochner’s, but the most powerful one today is: So what? Prof. Felix Frankfurter, corresponding with Learned Hand about another due-process case, wrote that if a state legislature acted foolishly, better to let voters correct the mistake than fix it by “lodging power in those nine gents in Washington.” Learned Hand agreed; a state was perfectly entitled to make a “jackass” of itself, he said, and the blame ought to fall on that state, not the Supreme Court. Regardless of one’s views on Lochner, the power Frankfurter foresaw has indeed become extraordinary. By deflecting the Bill of Rights, in almost every particular, against the states, through the impressive metaphysics of “incorporation,” the Court regularly invalidates state laws that touch in any litigable way on speech, religion, crime, property, and marriage — deciding the question for the entire nation. Bernstein is aware of this potentially antidemocratic power, but perhaps he should have had even greater sensitivity on this point. For one thing, the key “Lochner-line” cases he cites struck at far more egregious things than 60-hour workweeks. Meyer v. Nebraska (1923) undid a state ban on instructing schoolchildren in foreign languages; Pierce v. Society of Sisters (1925) rejected a statute that outlawed private grade schools. Bernstein discusses how later Courts would refashion those holdings into a “right of privacy” that would undergird, most famously, the right of abortion in Roe v. Wade (1973), but he does so largely to show that even such conservative luminaries as Robert Bork and Antonin Scalia still “channel” the Progressive critique of Lochner in their dread of “unenumerated” rights.

On the other hand, this only shows why Lochner still matters, and why Bernstein even bothers to revisit what is likely the “most disreputable case in modern constitutional discourse.” His remarkable achievement is to show that the logic of “liberty of contract” is really the logic of unenumerated rights — rights not mentioned in the Bill of Rights but whose existence we deduce from proper understandings of liberty. If later Courts ignored real rights and coined false ones, Bernstein will “leave it to interested readers” to sort it out. The New Deal justices distinguished “economic” rights from “preferred” ones like freedom of speech; later, the Warren and Burger Courts championed “civil liberties” without acknowledging their Lochnerian roots. The irony is that these Courts inherited their “Lochner phobia” from Progressives who disparaged any notion of “individual” rights. By the end of his book, it is clear that Bernstein uses the word “rehabilitation” in the Soviet sense, in which a poor executed soul is declared to have been not as guilty as supposed. He never makes a full-throated defense of Lochner. Instead, he attempts the far grander task of “correct[ing] decades of erroneous accounts.” He succeeds with aplomb, and notable timeliness. The story of how Joseph Lochner fought legislators and unions to bake his goods in freedom goes especially well with tea.

– Mr. Tartakovsky is a fellow of the Claremont Institute.

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