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
The abstract of this paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract_id=
Lochner’s Legacy’s Legacy
David E. Bernstein*
* Visiting Professor, Georgetown U niversity Law Center; Professor, George Maso n Univ ersity School of Law. E-mail: [email protected]. 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 School 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 primary problem with Lochner was the Justices’ belief that market ordering under the common law was part of nature rather than a legal construct, and formed a baseline from which to measure the constitutionality of state action, rendering redistributive regulations unconstitutional. Lochner’s Legacy’s understanding of the Lochner era has been widely accepted in legal circles, including by four current Supreme Co urt Justices. 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 current understanding of Lochner is how little evidence Sunstein provides for his historical claims. Beyond Lochner itself, the article cites only seven cases out of hundreds of relevant Lochner era cases, and discusses only two of them in any detail. Even the discussion of these two cases is tendentious. Sunstein’s argument has nevertheless thrived because until now no one has systematically scrutinized its historical underpinnings. 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 mistakenly treated government inaction as the “baseline” to determine the constitution ality of govern ment regulations. Th is Article argues that all three of these propositions are demonstrably incorrect. Lochner’s Legacy provides a particularly telling exam ple of the danger of applying an ideological construct to constitutional history for presentist purposes, while ignoring or neglecting contrary evidence
The ghost of Lochner v. New York 1 haunts American constitutional 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). 2 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 competence ); 2 BRUCE ACKERMAN, W E THE PEOPLE: TRANSFORMATIONS 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. Balkin & Sanfor d Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963, 1018 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. Conservative Justices accuse their colleagues 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 Court uses the Commerce Clause7 or the Eleventh Amendment8 to invalidate federal laws. On issues that divide the Court along atypical lines, such as the scope of the dormant commerce clause, ecumenical groups of dissenting Justices accuse their colleagues of Lochnerizing when the majority invalidates government 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 Meaning and Origins of Laissez-Faire Constitutionalism, 3 L. & HIST. REV. 293, 295 (1985) (“Nothing can so damn a decision as to compare it to Lochner and its ilk.”); Richard A. Primus, Canon, Anti-Canon, and Judicial Dissent, 48 DUKE 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 important examples of constitutional error). 3 Gary D. Rowe , Lochner Revisionism Revisited, 24 L. & SOC. INQUIRY 221, 223 (1999 ); cf. James L. Kainen, The H istorical Framework for Reviving Constitutional Protection for Property and Contract Rights , 79 CORNELL L. REV. 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. & SOC. 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 with 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 States 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 larkstown, 511 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 Commerce Clause ‘does not enact Mr. Herbert Spencer’s Social Statics . . . [or] embody 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,10 is that the Court exceeded its legitimate judicial role by reading the right of “liberty of contract” into the Fourteenth Amendment’s Due Process Clause, despite the absence of textual support for this right.11 The Supreme Court’s liberty of contract doctrine, which seemed to expand or contract unpred ictably,12 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., HERBERT CROLY, PROGRESSIVE DEMOCRACY 137-40 (1914) (alleging that the courts used due process to take over the policy-making function of the legislature); VERNON LOUIS PARRINGTON, 3 M AIN CURRENTS IN AMERICAN THOUGHT 118-20 (1930); Morris R. Cohe n, The Bill of Rights Theory, 2 NEW REPUBLIC 222, 222 (1915); Edward S. Corwin, Book Review, 26 AM. POL. SCI. REV. 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. REV. 222, 226 -32 (1910 ); Albert M. K ales, “Due P rocess,” The Inarticulate Major Premise and the Adamson Act, 26 YALE L.J. 519, 523 (1917); Thomas Reed Powe ll, Collective Bargaining Before the Supreme Court, 33 POL. SCI. Q. 396, 397-42 9 (1918); Thomas Reed Po well, The Judiciality of Minimum-Wage Legislation, 37 HARV. L. REV. 545, 545-46, 555-56 (1924 ); Margaret S pahr, Natural Law, Due Process and Economic Pressure, 24 AM. POL. SCI. REV. 332, 332-54 (1930 ); see gen erally PAUL KENS, JUSTICE STEPHEN FIELD 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 modern criticism of the Lochner era Suprem e Court along trad itional lines, see, e.g., ROBERT BORK, THE TEMPTING OF AMERICA 36-49 (1990) (arguing that the Cou rt had no authority under the Constitution to invalidate economic legislation under the Due Process Clause); J OHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 14-21 (1980). Desp ite this longstanding criticism, careful scholars have known for decades that until the mid- 1920s, 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 LOREN P. BETH, THE DEVELOPMENT OF THE AMERICAN CONSTITUTION, 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 ecisions 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 HARV. L. REV. 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 WASH. U. J. L & POL’Y 1 (200 0); Michael J. Phillips, The Progressiveness of the Lochner Court, 75 DENV. U. L. REV. 453, 453 (1998); M elvin I. Urofsky, Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era, 1983 SUP. CT. HIST. SOC’Y Y.B. 53, 69-70 [hereinafter, Urofsky, Myth and R eality]; Charles W arren, The Progressiveness of the United States Supreme Court, 13 COLUM. L. REV. 294, 2 95 (19 13); cf. Melvin I. Urofs ky, State Courts and Protective Legislation During the Progressive Era: A Reevaluation, 72 J. AM. HIST. 63, 64 (1985) [hereina fter, Urofsky, 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 Buntin 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) (Taft, C.J.,
SPRING 2003 3 Bernstein
Justices’ personal ideological biases.13 This understanding of Lochner remained widespread in academia14 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 WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 463 (1922 ) (conten ding that Lochner, “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 YALE 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. REV. 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 SUPREME COURT AND MINIMUM WAGE LEGISLATION 148, 153 (National Consumers’ 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 individual’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, SURVEY, May 1, 1923, at 150, reprinte d in SELECTED ARTICLES ON MINIMUM WAGES AND MAXIMUM HOURS 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., dissenting) (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.” ); FRANK J. GOODNOW, SOCIAL REFORM AND THE CONSTITUTION 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. REV. 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 POL. SCI. 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 which they disapprove, particularly in the fields of social and industrial legislation.”); Felix Frankfurter, Hours of Labor and Realism in Constitutional Law, 29 HARV. L. REV. 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 GREEN BAG 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., RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 273 (1987) (“[C] ourts substitu te[d] th eir own views of policy for those of legislative bodies.”); ALFRED H. KELLY & W INFRED A. HARBISON, THE AMERICAN CONSTITUTION: ITS ORIGINS & DEVELOPMENT 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 the 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, THE NATION, May 4, 1905, at 346, 347 (attributing the dissenters’ votes to “their general inclination towards paternalism”). 14 See Gary Peller, The Classical Theory of Law, 73 CORNELL L. REV. 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. & HIST. REV. 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 conservatives, among whom it rem ains dominant.15 Critics frequently charged the Warren and Burger Courts with Lochneristic judicial activism.16 With liberals in the majority, ho wever, the Court and its defenders brushed off such criticism.17 By the late 1980s, many constitutional law scholars grew unhappy 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. Wade18—were vulnerable to being overruled as Lochnerian.19
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 distinctive 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 BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION (1980) (defending Lochner and its progeny); Rich ard A. Ep stein, The Mistakes of 1937, 11 GEORGE MASON U. L. REV. 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 GEORGE MASON L. REV. 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 HARV. L. REV. 1363-83 (1990 ) (calling for a revival of Lochnerian jurisprudence); see gen erally James W. Ely, Jr., Melville W. Fuller, 1998 J. SUP. CT. HIST. 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 OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 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. REFORM 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 its decisions from Lochner. See, e.g., Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668 (1966) (“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 BORK, 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); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 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 .”); CHRISTOPHER W OLFE, THE RISE OF MODERN JUDICIAL REVIEW 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 applaud the activism of the Warren Court would do well to remember that the economic theories of the turn-of- the-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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Roe was especially difficult to distinguish from Lochner because its foundation is a series of Warren Court privacy decisions beginning with Griswold v. Connecticut.20 Griswold , in turn, not only asserted a non-textual right of privacy, but also relied on Lochner era civil liberties precedents.21 Like Lochner itself, the Lochner era precedents relied upon in Griswold had invalidated state laws based on an expansive, substantive interpretation of the Fourteenth Amendment’s Due Process Clause.22 The most significant of these decisions, Meyer v. Nebraska,23
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 CONSTITUTION OF THE UNITED STATES 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. 494, 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 HARV. L. REV. 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 For criticism of the Griswold 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 of Rights); Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 9-11 (1971) (analogizing Grisw old to Lochner). John Hart Ely famously criticized Roe as a Lochnerian decision. See John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE 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 era. No one, including the Justices who typically dissented from the libertarian cases of the era, used this phrase. See JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS 103-04 (2 d ed. 1998 ); James W . Ely, Jr., Reflections on Buchanan v. Warley, Property Rights, and Race, 51 VAND. L. REV. 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 MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870- 1960: THE CRISIS OF LEGAL ORTHODOXY 158 (1992). Some contemporaries 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 LOUIS B. BOUDIN, GOVERNMENT BY JUDICIARY? 374-96 (1932); EDWARD S. CORWIN , COURT OVER CONSTITUTION 107 (1938) (claiming that the original interpretation of the Due Process Clause was limited to ensuring a fair trial for accused persons); EDWARD S. CORWIN , THE TWILIGHT OF THE SUPREME COURT: A HISTORY OF OUR CONSTITUTIONAL THEORY 68-69 (1934) [hereinafter, C ORWIN , TWILIGHT]; Edward S. Corwin, The Supreme Court and the Fourteenth Amendment, 7 MICH. L. REV. 643 (1909), reprinte d in 2 CORWIN ON THE CONSTITUTION: THE JUDICIARY 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 the 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 CHARLES GROVE HAINES, THE REVIVAL OF NATURAL LAW CONCEPTS ch. 5 (1930) (discussing due pro cess); Charles E. Shattuck, The True Meaning of the Term “Liberty” in the Federal and State Constitutions Wh ich Protect “ Life, Liberty, an d Proper ty,” 4 HARV. L. REV. 365 (1891) (presen ting an ea rly and influe ntial critique of the view that the Due Proces s Clause protects anything but procedu ral rights); Charles W arren, The New “Liberty” Under the Fourteenth Amendment, 39 HARV. L. REV. 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. Liberals are particularly protective of Griswold because if the Supreme Court ever overrules Bowers v. Hardwick24 and articulates a right to engage in homosexual sex, it will likely do so by relying on its prior privacy rulings, as the dissenters did in Bowers.25 “Lochner remains an unnerving presence,” Robert 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.”26 Discomfort with the traditional critique of Lochner has led to something of a cottage industry of Lochner reinterpretation among constitutional law scholars.27 Owen Fiss, for example, argues that the Lochner Court engaged in a coherent, albeit ideologically misguided, effort to enforce an economically libertarian vision of the Constitution based on social contract theory.28 Fiss concludes that “Lochner stands for both a distinctive body of constitutional doctrine and a distinctive conception of judicial role: One could reject one facet of Lochner and accept the other. . . . [W]e may wish to criticize its substantive values and yet leave unimpeached its conception of role.”29 Political scientist Howard Gillman, meanwhile, contends that the Lochner era Court, relying on currents in American ideology flowing from the Founding and Jacksonian eras, sought to restrict “class legislation,” i.e., “attempts by competing classes to use public power to gain
correct in its due process jurisprudence, see RODNEY L. MOTT, DUE PROCESS OF LAW (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 CONST. COMM. 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 certiorari 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 BARBARA H. FRIED, THE PROGRESSIVE ASSAULT ON LAISSEZ FAIRE: ROBERT HALE AND THE FIRST LAW AND ECONOMICS MOVEMENT 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 redilections is in need of any substantial revision. See Paul Kens , Dawn of the Conservative Era, 1995 J. SUP. CT. HIST. 1; Paul Kens, Lochner v. New York: Rehabilitated and Revised, But Still Reviled, 1997 J. SUP. CT. HIST. 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. REV. 1383 (2001). 28 FISS, 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.
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unfair or unnatural advantages over their market adversaries.”30 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 revisionists, suggests that Lochner may have been correctly 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 Depression.” 31 Fiss, Gillman, Ackerman, and other scholars effectively parry the conservative critique of Roe and like-minded decisions as Lochnerian.32 These revisionists agree that the Lochner era Justices were trying to preserve liberty, as they understood it, from government encroachment.33 The Lochner era Court, they argue, chose an appropriate role for the Court— defender of last resort of fundamental rights.34 However, from a modern perspective, the Court chose the wrong rights to emphasize. The problem, the revisionists argue, is that the Justices did not understand that social and eco nomic changes brought about by the Industrial Revolution rendered anachronistic their vision of liberty.35 This
30 HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE 11, 61 (1993). 31 ACKERMAN, 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 BRUCE ACKERMAN, W E THE PEOPLE: FOUNDATIONS 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 LAWRENCE M. FRIEDMAN, AMERICAN LAW IN THE 20TH CENTURY 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 era from a more conservative scholar, see JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 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 endeavors. It makes possible, at long last, constitutional thinking that need not [perform] strenuous backflips to distance itself from ‘Lochner’s error.’” Row e, supra note 3, at 242. 35 See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 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 WM. & MARY L. REV. 65, 65 (1999 ) (claimin g that Lochner revisionism sup ports her c all for “a strong offensive charge on behalf of 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.36 In his 1987 Columbia Law Review article, “Lochner’s Legacy,” 37 Cass Sunstein provides a more critical revisionist perspective on Lochner, albeit to similar ideological ends. Lochner’s Legacy predates the work of Ackerman, Fiss, and Gillman, and Sunstein deserves a great deal of credit for moving scholarly discussion of Lochner beyond the trite “received 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 government.”38 Sunstein presents an alternative approach39 that he claims “fits the history at least as well” but has “dramatically different implications.” 40 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 nature rather than a legal construct,” and formed a baseline from which to measure the constitutionality of state action, rendering redistributive regulations unconstitutional.41 As discussed in greater detail below,42 Sunstein supports his argument largely by analyzing Lochner itself and by comparing language in the Court’s opinion in Adkins v. Children’s Hospital,43 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 LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 564 (1978) (“the error of [Lochner] lay not in judicial intervention to protect ‘libe rty’ but in a misguided un derstan ding of w hat liberty actu ally required ”); cf. Rebecca L. Brown, Activism is Not a Four-Letter Word, 73 U. COLO. L. REV. 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. & HIST. REV. 541, 549-50 (2002) (“The revisionist narrative at times appears to be peopled by clueless historical actors being relentlessly swep t along by ideological currents th at, despite 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 thoughtless 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 GERALD GUNTHER & KATHLEEN SULLIVAN, CONSTITUTIONAL LAW 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 (discussing the many infringem ents on liberty of contract the Lochner Court upheld). 37 Cass R. Sunstein, Lochner’s Legacy, 87 COLUM. L. REV. 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.” CASS R. SUNSTEIN , THE PARTIAL CONSTITUTION 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. REFORM 561, 565 (1988 ). 42 See infra notes 23 6 to 283 and acc ompa nying text. 43 261 U.S. 52 5, 557 (1923).
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reasoning of West Coast Hotel v. Parrish,44 which reversed Adkins and is widely seen as signaling the end of the Lochner era.45 Like other revisionists, Sunstein argues that his understanding of Lochner saves Roe v. Wade and other Warren and Burger Court decisions from the charge that they are Lochner’s illegitimate offspring. Sunstein also cleverly argues 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.46 In his later books that elaborate on Lochner’s Legacy, Sunstein focuses much of his criticism on Buckley v. Valeo,47 in which the Court held that campaign donations are a form of speech protected by the First Amendment.48 In addition to Buckley, Lochner’s Legacy also criticizes, among
44 300 U.S. 37 9 (1937). 45 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 BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (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 Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause, 41WM. & MARY L. REV. 3, 41 (1999) (noting th at West Coast Hotel did not overrule Lochner or any liberty of occupation case not involving an attempt 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., MARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF CIVIL LIBERTARIANISM 187-215 ( 1991); Jack M. Ba lkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 DUKE L.J. 375, 38 7; Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405 , 1410 -11 (19 86); M orton J. Horowitz, Foreword--The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 32, 109-16 (1993); Fran k I. Michelm an, Conc eptions of Dem ocracy in Am erican Constitutional Argum ent: The Case of Pornography Regulation, 56 TENN. L. REV. 291, 291 (1989). For discussions of this phenomenon, see Kathleen M. Sullivan, Discrimination, Distribution and Free Speech, 37 ARIZ. L. REV. 439, 439 (1995); Joh n O. M cGinnis, The Left vs. Free Speech, COMMENTARY, Oct. 1994, at 39; see gen erally DAVID E. BERNSTEIN , YOU CAN’T SAY THAT! HOW THE GROWTH OF ANTIDISCRIMINATION LAWS THREATENS CIVIL LIBERTIES 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 the 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, The Legitimacy of Judicial Review in Speech Cases, in THE PRICE WE PAY: THE CASE AGAINST RACIST SPEECH, HATE PROPAGANDA, AND PORNOGRAPHY 208 (Laura Lederer & R ichard Delgado, eds. 1995). 47 424 U.S. 1 (1 976). 48 See, e.g., CASS R. SUNSTEIN , FREE MARKETS AND SOCIAL JUSTICE 229 (1997) [hereina fter, SUNSTEIN , FREE MARKETS]; (“On the view reflected in both Buckley and Lochner, reliance on free marke ts is governm ent neu trality and gov ernm ent inaction .”); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 97 (1993) [hereinafter, SUNSTEIN , DEMOCRACY] (“both cases accepted 10 Lochner’s Legacy’s Legacy other cases, Washington v. Davis49 for requiring discriminatory intent before courts may deem a law with discriminatory effects on minorities a violation of the Equal Protection Clause, and Regents of the University of California v. Bakke,50 for outlawing racial quotas in public universities. Sunstein contends 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 inappropriate baseline that accepts existing distributions of wealth as natural and prelegal. These decisions, according to Sunstein, implicitly fail to recognize that the status quo is itself a product of legal and political choices.51 Lochner’s Legacy is a short article—at least by law review standards—and Sunstein devotes only ten pages of 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 constitutional 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,52 at least among law professors. 53 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 conducted 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 arguments 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-law 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 articles by Ph.D. historians who teach at law schools, though even they frequently cite Sunstein. Works of Lochner revisionism by Ph.D. historians include CUSHMAN, 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 WIS. L. REV. 767, 782-86; Alan Jones, Thomas M. Cooley and “Laissez-Faire Constitutionalism”: A Reconsideration, 53 J. AM. HIST. 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 SUP. CT. HIST. SOC’Y Y.B. 20, 24-26 [hereinafter, McC urdy, Roots ]; Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897, 61 J. AM. HIST. 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 HARV. L. REV. 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. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL 21-29 (2000) (review ing the revisionist literature from a historian’s pers pective).
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The article has been cited in law reviews well over three hundred times, mostly for its historical thesis. Moreover, the themes developed in Lochner’s Legacy appear in many of Sunstein’s other, well-cited54 books55 and articles,56 and are especially prominent in The Partial Constitution,57 which has also been cited hundreds of times. Sunstein’s ideas about Lochner also appear in his popular coauthored constitutional law casebook,58 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.59 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,60 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-cited law professor in the United States. Brian Leiter, Most Cited Law Faculty,
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 rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. See, e.g., Adkins v. Children’s Hospital of D.C., 261 U.S. 525, 557 (1923) (finding abrogation of common-law freedom to contract for any wage an unconstitutional “compulso ry exaction”); see generally 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 power 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.61 In College Savings Bank v. Florida Prepaid Postsecondary Education Expense Bd.,62 meanwhile, Justice Breyer, dissenting, joined by Justices Stevens, Souter, and Ginsburg, implicitly adopted Sunstein’s argument 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 rendering immu table this one common-law doctrine (sovereign immunity), Seminole Tribe threatens the Nation’s ability to enact economic legislation needed for the future in much the way that Lochner v. New York threatened the Nation’s ability to enact social legislation over 90 years ago.” 63 Justice Scalia, speaking for the five-vote majority, responded with the once-standard, but now primarily conservative,64 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 Spencer’s Social Statics,’ was that it sought to impose a particular economic philosophy upon the Constitution.” 65
61 517 U.S. 44, 166 (1996) (Souter, J., dissenting). 62 527 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 AMERICAN ASSOCIATION OF LAW SCHOOLS, THE AALS DIRECTORY OF LAW TEACHERS 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.
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Despite a deluge of historical scholarship regarding Lochner since Lochner’s Legacy appeared sixteen years ago,66 Sunstein’s views are unaltered.67 Lochner’s Legacy is still consistently cited by legal scholars68—not to mention Supreme Court Justices69—for the proposition that the Lochner era Supreme Court banned the government from altering commo n law entitlements or patterns of wealth distribution. What is remarkable about Lochner’s Legacy’s massive influence is how little evidence Sunstein provides for his historical thesis. Other than Lochner itself, Sunstein cites only seven of the hundreds of relevant Lochner era cases.70 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 invalidating 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, and he interprets that material in a misleading way. 71 Some readers might question whether a lengthy critique of Sunstein’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 seem to depend on whether 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,72 and both judges and legal scholars have accepted his claims at face value. Given the importance of Lochner in modern constitutional debate,73 correcting Sunstein’s errors is worthwhile. Second, Sunstein’s critique 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 throughout Am erican history,
66 See the post-1987 books and articles cited in note 53. 67 See Cass R. S unstein, Sunstein, J., concurring in the judgment, in WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID, 174, 182 (Jack M. Balkin, ed. 2000) (rejecting what Sunstein calls 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”). 68 E.g., Jim Ch en, The Second Coming of Smyth v. A mes, 77 TEX. L. REV. 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 CASE W. RES. L. REV. 645, 646 n.296 (20 01); Gary M inda, Denial: Not Just a River in Egypt, 22 CARDOZO L. REV. 901, 930 n.14 (2001); Ann Woolhandler & Michael G. Collins, The Article III Jury, 87 VA. L. REV. 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); Adkin 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. 14 Lochner’s Legacy’s Legacy and to a large degree the Constitution seems to mandate this.74 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.” 75 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 altogether without reading the contracts and takings clauses out of the Constitution.”76 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 believed that common law was natural, prepolitical, and immutable. The Court, according to Sunstein, foolishly refused to heed criticism from Progressives and their Realist successors. They urged the Court to stop relying on commo n law norms to judge the constitutionality of legislation designed to ameliorate the conditions of workers. Thus, Sunstein implicitly links Lochner era constitutionalism to equally discredited Langdellian common law formalism. Although this linkage is historically inaccurate,77 Sunstein is following a longstanding tradition that dates back to Progressive era critics of 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 courts in the second half of the nineteenth century— into a single “assault on formalism.”78 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. REV. 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 Amendment 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 about 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 STAN. L. REV. 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. & HIST. REV. 631, 632-33 (2002) (“The central message of the scholars wh o established the overall unity of Gilded Age law 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 CAL. L. REV. 1441, 15 23 n.429 (1990) (noting that Sunstein’s theory is an application of the Legal Realist critique of the private law system). For a
SPRING 2003 15 Bernstein both Lochner and Langdell to modern constitutional decisions that purportedly repeat the mistakes of Lochner. Sunstein argues, for example, that the libertarian baseline of First Amendment and Fourteenth Amendment jurisprudence should be abandoned as Lochnerian.79 Sunstein’s use of historical analysis for blatant presentist purposes leaves Lochner’s Legacy vulnerable to the charge that, as Theodore 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.” 80 Yet Sunstein’s argument has thrived because no one has carefully scrutinized its historical underpinnings—until now. This 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 “natural,” “status quo” distribution of wealth against redistributive regulations; and (3) that the abandonment of Lochner in West Coast Hotel v. Parrish81 resulted from the Supreme Court’s recognition that the problem with Lochner and its progeny was that the Court in those decisions mistakenly treated government inaction as the “baseline” to determine the constitutionality of government regulations. This Article shows that all three of these propositions are incorrect. Before this Article proceeds to its critique of Lochner’s Legacy, it 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 praise for being sufficiently cautious abo ut his thesis to acknowledge potential weaknesses. On the other hand, accepting Sunstein’s caveats at face value largely undermines Lochner’s Legacy’s historical thesis. For example, Sunstein states that “whether there was a[n unconstitutional] departure from the requirement of neutrality . . . depended on whether the government had altered the common law distribution of entitlem ents.”82 But he then concedes in a footnote 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 HARV. L. REV. 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 element 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 RES. IN L. & SOC. 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 pursuit of equality, which are discussed in some detail in The Partial Constitution and Democracy and the Problem o f Free Speech. 80 WHITE, 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.’”84 This confession undermines Sunstein’s thesis, because opposition to legislation that either arbitrarily benefits a particular special interest, or that puts unfair burdens on particular individuals or groups, is not the same thing as opposition to changing common law distributions, as such. Sunstein tries to rescue his point by 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 comfortably with the broader hostility to redistribution.”85 Yet the reader just learned from Sunstein that the Court was not broadly ho stile to redistribution, as evidenced by its tolerance of “poor laws,” that, as Sunstein acknowledges in a footnote,86 have far clearer and more progressive redistributive consequences than minimum wage and maximum hours laws.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 SUNSTEIN , 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 SUNSTEIN , 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 critique 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. BRUCE J. SCHULMAN, FROM COTTON BELT TO SUN BELT: FEDERAL POLICY, ECONOMIC DEVELOPMENT, AND THE TRANSFORMATION O F THE SOUTH, 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 ell- organized workers. H ENRY HAZLITT, ECONOMICS IN ONE LESSON 140 (Arlington House ed. 1 979); DOUGLASS C. NORTH, GROWTH AND WELFARE IN THE AMERICAN PAST 179 (1966); ALBERT REES, THE ECONOMICS OF TRADE UNIONS 87-89 (3d ed. 1989). For the negative effects of Progressive and
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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.88 In a footnote, Sunstein partially recants, explaining that “[n]ot every common law right was, by virtue of its status as such, immunized from collective control. Marginal and not-so-marginal adjustments were permissible.”89 Further confusion arises around Sunstein’s claim that during the Lochner era “the police power could not be used to help those unable to protect themselves in the marketplace.”90 He then concedes in a footnote that the scope of the police power was in fact contestable and contested, and that it perhaps could be used to help the needy.91 The point here is not to nitpick or to be petty, but to note that Sunstein’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 for suggesting that the Court consistently used common law rules as a baseline in making constitutional determinations, Sunstein or his defenders can rebut these criticisms with the footnoted caveats. Sunstein’s later work resolves this problem , however. Sunstein, apparently more confident ab out Lochner’s Legacy’s understanding of the Lochner era—which is understandable given its widespread acceptance among constitutional law scholars—consistently states that Lochnerian jurisprudence involved protecting what the Court saw as “prepolitical” common law distributions of wealth,92 and rarely notes any caveats, even in footnotes.93
New Deal era labor legislation on African Americans, see gene rally DAVID E. BERNSTEIN , ONLY ONE PLACE OF REDRESS: AFRICAN AMERICANS, LABOR REGULATIONS AND THE COURTS FROM RECONSTRUCTION TO THE NEW DEAL (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 common-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 were 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 norms, but was not dependent on them. 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 law 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 rsimplifies 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, not the caveats in the notes. With Sunstein’s implicit and explicit assent,94 Lochner’s Legacy has come 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. THE COURT RECOGNIZED THAT COMMON LAW RULES WERE CONTINGENT AND MUTABLE Sunstein emphasizes what he sees as the Lochner Court’s fealty to the common law. Lochner’s Legacy claims 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 “common 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 referring to specific common law rules.96 These rules emphasized “freedom of contract, fault as the basis for tort liability, and simple full ownership with freedom of alienation as the normal form of prop erty.”97 Contrary to Sunstein’s claim, the Supreme Court 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 wrote that “the constitution of the United States, which is necessarily and to a large extent inflexible, and exceedingly 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 Sunstein, supra note 37, at 874; cf. BETH, supra note 11, at 64 (“The construction by Justice Rufus W. Peckham 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 onstitution.” Roscoe Pound, Liberty of Contract, 18 YALE 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).
SPRING 2003 19 Bernstein 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 employees, as they arise.”99 Two years later, in an opinion written by Lochner author Rufus Peckham, the Court upheld a state court ruling requiring track connections at an intersection of railroads.100 The Court acknowledged that “at commo n law the courts would be without power to make such an order as was made in this case by the state court,” but the regulation was constitutionally proper because it amounted to “a fair, reasonable, and appropriate 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,102 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.103 The Court emphatically stated that it was “competent for the state to change and mod ify those [common law] principles in accord with its conceptions of public policy.”104 In 1927, at the very peak of the Lochner era, the Court 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). 99 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 fellow servant rule); Wilmington Star Min. C o. v. Fulton, 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. 628 (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). 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 of liability on railroads for damage 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 contract out of this liability;109 fining of common carriers for failing to expeditiously 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 cutting of timber on state lands;112 imposition of state113 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 alcoholic beverages 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 Supreme Court cases that upheld land use regulations not intended to remedy common law violations,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 ). 107 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, 79 B.U. L. REV. 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, 218 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.
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government’s decision 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 common law rights and duties with federal 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 Appeals’ infamous decision in Ives v. South Buffalo R.R.,121 the Suprem e Court routinely 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 case was 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’ compensation 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 compensation 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’ compensatio 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). Regardless, it soon became apparent that conc ern that Ives would determine the constitutionality of workers’ compensation nationwide, or even in New 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.”). 123 243 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 the 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, 563- 73 (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 adequate alternative remedy.”124 In a parenthetical, he describes White as “upholding workers’ compensation in part because of quid pro quo.”125 This is simply wrong. White did not say this, and, as we shall soon see,126 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 employee, without providing a reasonably just substitute.”127 The Court stated that such a rule might be unconstitutional, but not because the common law was a prepolitical natural baseline. Rather, White reasoned that because the employers and employees of New Y ork State expended 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. 128 However, the Court concluded that “[n]o such question is here presented, and we intimate no opinion upon it.”129 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,130 whether they are reasonable,131 and whether they violate the Fourteenth Amendment right of freedom of contract.132 By contrast, the Court dism issed in a few contemptuous sentences the argument that the law was unconstitutional
124 Sunstein, supra note 37, at 879 n.30. 125 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 impose 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.
SPRING 2003 23 Bernstein because it changed common law entitlements b y creating liability without 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 remain unchanged for his benefit.”133 Indeed, contrary to Sunstein’s claims that the Lochner era Court saw common law rights as natural and prelegal, the White opinion exhibited an acute awareness that common law rights are histo rically contingent and legislatively mutable. The Court explained that “[t]he comm on law bases the employer’s liability for injuries to the employee upon the ground of negligence; but negligence is merely the disregard of some duty 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 the ordinary sense, safety appliance acts being a “familiar instance.”135 The Court also noted that the fellow servant rule and the assumption of risk doctrine, both of which helped spawned the workers’ compensation movement 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, and employers’ common law defenses were abolished. Unlike earlier statutory compensation laws, however, the 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 unconstitutional because it was novel and did not follow common law norms.138 The majority explained 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 respects 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 correctly appreciate their needs. The states are left with a wide range of legislative discretion, notwithstanding the provisions of the Fourteenth Amendment; and their conclusions respecting the wisdom of their legislative acts are not reviewable by the courts.139 While this opinion drew dissents,140 this should not obscure the consensus on the Court that more typical workers’ compensation laws were constitutional. Even arch-conservative Justice James McReynolds generally acquiesced to the replacement of common law with statutory workers’ compensation. In 1924 he wrote, “Without doubt, Co ngress has power to alter, amend or revise the maritime law by statutes of general application embodying its will and judgment. This power, we think, would permit enactment of a general employers’ liability law or general provisions for compensating injuries.” 141 Three years later, at the height of the Lochner era, the Court explained in dicta that “the various Workers’
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. at 420. However, the Court at this time 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 Pitney thought that Holmes’s opinion was too radical. ALEXANDER M. BICKEL & BENNO C. SCHMIDT, JR., THE JUDICIARY AND RESPONSIBLE GOVERNMENT, 1910-1921, at 577-78 (1984). 140 Four Justices dissented, with all four joining in two separate 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 limited. 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). On 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. Despite 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 only 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 these 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 upheld laws that req uired employers to pay into a state workers’ compensation fund instead of simply paying for their own employees’ injuries;144 permitted an employee’s recovery for disfigurement with no loss in earnings ability;145 required employers to pay into a state workers’ compensation fund when an employee without heirs died on the job;146 required that compensation for a worker’s death be paid to the decedent’s relatives who were citizens of, and lived in, another country;147 required payment of compensation to workers injured on their way to work;148 required employees to accept workers’ compensation in lieu of tort remedies at their employers’ election;149 and restricted the fees attorneys could charge 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 upheld the federal Longshoremen’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’ compensation 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 common- law 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. & COM. 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 Island 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 scheme. Moreover, the Court frequently 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 Butler,156 and George Sutherland157—had each been strong supporters of workers’ compensation laws in their pre-Court political careers. In sum, the Lochner era Court did not think common rights immutable, and the Court frequently upheld laws that changed or even abolished the common law.158 As a political scientist noted in 1930, “common law rights, however natural 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 modification in the U nited States.” 159 To the extent that the Lochner era Court explicitly relied on common 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 JAMES WEINSTEIN , THE CORPORATE IDEAL IN THE LIBERAL STATE, 1900-1918, at 55 (1968). 156 DAVID J. DANELSKI, A SUPREME COURT JUSTICE IS APPOINTED 18 (1964); FRANCIS J. BROWN, THE SOCIAL AND ECONOMIC PHILOSOPHY OF PIERCE BUTLER 96-97 (1945). 157 “We 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 CONG. REC. 4846, 4853 (1912) (statement of Sen. Sutherland). In 1916 , Sutherland introduced in Congress a workers’ compensation bill for employees of the federal governm ent. See 53 CONG. REC. 452 (1916) (statement of Sen. S utherland ); see gen erally JOEL PASCHAL, M R. JUSTICE SUTHERLAND: A M AN AGAINST THE STATE 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 contract and property rules. First, because most of the tort rules in question involved employer-employee 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 White 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., dissenting) ( objecting that only de jure mono polies we re regulab le at com mon law ); cf. CHRISTOPHER G. TIEDEMAN, A TREATISE ON THE LIMITATION OF THE POLICE POWER OF THE UNITED STATES § 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 nstitutional 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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that common law experience suggested that the regulations in question were within the scope of the police power. The Court did not invalidate regulations to preserve a commo n law laissez-faire system. Rather, the Court often upheld regulations that seemed to violate liberty of contract only because the regulations were consistent with preexisting regulatory norms.161 The com mon law of tort, contract, and prop erty thus did not drive the libertarianism of the Lochner era. Instead, the Court’s deference to the common law police power restrained the Court’s libertarian instincts.162
II. THE COURT ALLOWED REDISTRIBUTIVE REGULATORY LEGISLATION In Lochner’s Legacy and other writings, Sunstein argues that 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 disabilities 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 ) (“No 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 make any d ay holy.”); see gen erally Frederick N. Judson, Liberty of Contract Under the Police Power, 25 AM. L. REV. 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 of legis lation. He believed, for example, that only narrow Sunday laws were constitutional. TIEDEMAN, 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,” “prepolitical,”and “just.” 163 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 requirement.”166 The latter bit of hyperbole is ahistorical. Arguing that the Lochner Court enforced a laissez-faire system is rhetorical exaggeration equivalent to arguing that the Warren Court was “socialist.”167 The Lochner Court, though generally
163 CASS R. SUNSTEIN , RIGHTS REVOLUTION, 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.”); SUNSTEIN , DEMOCRACY, supra note 48, at 97 (“Lochner accepted existing d istributions of resource s as prep olitical and ju st, and . . . invalidated democratic efforts at reform.”); SUNSTEIN , FREE MARKETS, 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.”); SUNSTEIN , 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 GEO. W ASH. L. REV. 114, 120 (1987 ) (The Suprem e Court’s conclusion, in Lochner v. New York, that regulatory measures should be understood as a sort of ‘taking’ from A for the benefit of B depended on a view that the common law was natural and prepolitical.”); Cass R . Suns tein, Free 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, 53 U. CHI. L. REV. 1129 (1986) (“In the Lochner period, for example, 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 COLUM. L. REV. 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. REV. 245, 245 (1986) (criticizing “the Co urt’s ass ump tion that the existing d istribution 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 COLUM. L. REV. 1432, 1434 (1988) (“The use of common-law notions, sharply distinguishing between statutory benefits and nineteenth century private rights, was 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 era Supreme 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.” FRIED, supra note 27, at 15; see also Jack M. Balkin, Bush v. Gore and the Boundary between Law an d Politics, 110 YALE L.J. 1407, 1449 (2 001); E RWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 480 (1997 ed.); N EIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE 32 (1995);
SPRING 2003 29 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 laissez- faire.168 Sunstein’s more modest point, that the Court sought to protect the status quo distributions of resources, is also not viable. In particular, Sunstein claims that “the police power could not be used to help those unable to protect themselves in the marketplace.”169 He asserts that the Court constitutionalized ancient Supreme Court dicta opposing taking the property “of A to give to B.” 170 If Sunstein is correct, the Court should have consistently invalidated regulatory laws that had real or potential redistributive consequences.171 With a few famous exceptions,172 however, the Court upheld such regulations. In fact, the Court explicitly held in Holden v. Hardy173 that legislators could impose health and
Stephen Gardbau m, New Deal Constitutionalism and the Unshackling of the States, 64 U. CHI. L. REV. 483, 516-17 (1 997); Steven K. Green , Justice David Josiah Brewer and the “Christian Nation” Maxim , 63 ALB. L. REV. 427, 434 (1999); Richard S. Markovits, Legitimate Legal Argument and Interna lly Right Answers to Legal-Rights Questions, 74 CHI-KENT L. REV. 415, 476 (1999); Michael Rosenfeld, The Rule of Law and Legitimacy of Constitutional Democracy, 74 S. CAL. L. REV. 1307, 1340 (2001) (all restating traditional view that the Court in Lochner was enforcing “laissez faire”). Yet it should be obvious that a Court that “unamb iguously embraced laissez faire” would have, for example, invalidated restrictions on the 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 FRIED, 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 the government was not a proper exercise of the police power u nder com mon law standar ds, it was impermissible 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 876- 77; see also John V. O rth, Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENTARY 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 Packing 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. United 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.174 Holden was decided seven years before Lochner, but the Lochner era Court consistently reaffirmed its holding.175 In one post-Holden case, for example, the Court upheld a law that was passed because “the legislature evidently deemed the laborer at some disadvantage. .and .undertook to ameliorate his conditions.” 176 Contrast that holding with Sunstein’s claim that “consideration of the plight of the disadvantaged” was considered “impermissible partisanship” during the Lochner era.177 A 1917 Columbia Law Review note explained that “it is now well 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.” 178
174 The legislature has also recognized the fact, which the experience of legislators in many states has corroborated, that the proprietors 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. LAB. LEG. REV. 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 Legislation, 17 COLUM. L. REV. 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 31 Bernstein
The Lochner era Court also upheld many other “redistributive”179 state laws. These included laws forbidding the employment of children below the age of sixteen in certain hazardous occupations,180 prohibiting nighttime employment of women in restaurants located in large cities,181 regulating the hours of labor of women182 and of men in industrial occupations when overtime work was permitted,183 regulating the width of entries to coal mines,184 requiring coal mines to maintain wash houses for their employees at the request of twenty or more workers,185 making mining companies liable for their willful failure to furnish a reasonably safe place for workers,186 requiring that coal miners’ pay be based on
179 Some of 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 some 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 minimum 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 terms 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 Sturges & Burn Mfg. Co. v. Beauchamp, 231 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 law on federalism grounds in Ham mer v. Dagen hart, 247 U .S. 251 (1918 ). This case has frequently 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,187 requiring railroads188 and mining companies189 to pay their employees in cash, requiring railroads to pay wages due an employee on discharge regardless of contrary contractual agreement,190 requiring coal produced by miners be weighed for payment purposes before it passes over a screen,191 giving preferences to citizens in public works employment,192 regulating the wages and hours of workers employed on public works projects,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”197 out of business,198 and limiting attorneys’ fees in Court of Claims cases involving Indian claims.199 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.200 The Court also generally upheld antitrust laws,
187 Rail & River Coal Co. v. Ya ple, 236 U.S. 338 , 349-55 (1915). 188 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 Heim 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 ployers 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 BERNSTEIN , 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. Brewer, Peckham, 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 dissenting without opinion from 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. FISS, 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 Brewer denied that grain elevators could be regulated even when they did not receive special privileges from the government. He wrote, “The paternal
SPRING 2003 33 Bernstein which were among the most blatantly redistributive of laws, as they were seen as aiding small businesses at the expense of large corporations.201 The Court, however, did invalidate one specific category of laws that might be considered redistributive: laws which it believed had no purp ose other than to aid labor unions. For example, the Court twice invalidated laws that prohibited employers from forbidding their employees to join labor unions.202 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 EDWARD A. PURCELL, JR., BRANDEIS AND THE PROGRESSIVE CONSTITUTION 46-56 (2001) (discussing Brewer); Robert E. G amer, Justice Brewer and Substantive Due Process: A Conservative Court Revisited, 18 VAND. L. REV. 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. ” PURCELL, supra, at 51. As a state court justice, Peckham, in a dissenting opinio n to what becam e the companion 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 the 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 HARV. CIV. RTS.-CIV. LIB. L. REV. 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 ROBERT H. BORK, THE ANTITRUST PARADOX: A POLICY AT WAR WITH ITSELF (1979 ); Rober t Pitofsky, The Political Content of Antitrust, 127 U. PA. L. REV. 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, Christopher G. Tiedeman, ‘Laissez-Faire Constitutionalism’ and the Dilemmas of Sm all-Scale Property in the Gilded Age, 51 OHIO ST. L.J. 1349 (1990); D avid N. Mayer, The Jurisprudence of Christopher G. Tiedeman: A Study in the Failure of Laissez-Faire Constitutionalism, 55 MO. L. REV. 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. 161 (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 theanti- injunction provisions of the 1914 Clayton Act. Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921). For a contemporary perspective, see Richard Olney, Discrimination Against Union Labor—Legal?, 42 AM. L. REV. 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 disruptions, not as prounion legislation. Texas & 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 decisions as evincing the Court’s hostility to redistributive regulations that would have aided workers.203 Undoubtedly these decisions, combined with state and lower federal court decisions unfriendly to labor unions, limited the growth of organized labor.204 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 decisions limiting the power of unions served only the interests of the corporate elite and harmed workers.205 The Justices, however, in common with much of public opinion, saw labor unions as monopolistic organizations that threatened the freedo m of both individual workers and their employers, just as monopolistic corporations threatened small businesses and consumers.206 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., ROBERT MCCLOSKEY, THE AMERICAN SUPREME COURT 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 WILLIAM FORBATH, THE SHAPING OF THE AMERICAN LABOR MOVEMENT (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., HERBERT CROLY, THE PROMISE OF AMERICAN LIFE 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 COLUM. L. REV. 451, 4 52 (19 20) (“W hen the rights and privileges which 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 may 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 bination or agreement among insurance companies, I do not perceive an y sound reaso n why, preservin 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 monopoly). 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.
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The right [to liberty of contract] is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money. An interference with this liberty so serious as that now under consideration, and so disturbing of equality of right must be deemed to be arbitrary, unless it be supportable as a reasonable exercise of the police power of the state.207 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 organizations.208 Beyond the union-related cases, at least through the 1920s the Court rarely interfered with “progressive” redistributive legislation claimed to be within the states’ police power.209 Moreover, the Court’s decisions upholding redistributive
207 Coppage, 236 U.S. at 14. 208 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 were 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. HARPER, W HY W AGES RISE (IHS ed . 1957 ); HENRY HAZLITT, ECONOMICS IN ONE LESSON 140 (Arlington House ed. 1979) ; CAMPBELL R. MCCONNELL, ECONOMICS 651 (10th ed. 1987) ; DOUGLASS C. NORTH, GROWTH AND WELFARE IN THE AMERICAN PAST 179 (1966); LLOYD G. REYNOLDS ET AL , LABOR ECONOMICS AND LABOR RELATIONS 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 solely, at the expense of other workers . ALBERT REES, THE ECONOMICS OF TRADE UNIONS 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 minorities, immigrants, and women , all of whom w ere excluded f rom union s to varying degrees . See gen erally BERNSTEIN , 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 this fact. See, e.g., FREDERIC R. COUDERT, CERTAINTY AND JUSTICE 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 necessarily revolution.”); FRANK J. GOODNOW, SOCIAL REFORM AND THE CONSTITUTION 329 (1911) (“So far from the Supreme Court being open to our criticism for giving unduly narrow construction to constitutional provisions in favor of individual rights, as against measures designed for the public welfare, 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 adopted.”); WARREN, 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 36 Lochner’s Legacy’s Legacy regulations often did not involve “easy,” uncontroversial issues, as demonstrated by state court precedents 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 POL. SCI. 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 HARV. L. REV. 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). Of 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 federal income 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 (1895). See, e.g., Death of the Income Tax, LITERARY DIGEST, 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 nighttime 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 Supreme 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. Crim. 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 the 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 miners). 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); cf. 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 By State C ourts By U.S. Sup reme Court
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to allow the Court to review judgments from state courts enforcing federal constitutional rights,211 that is, to serve as a check on state courts that were invalidating Progressive legislation, especially labor legislation.212
III. SUN STE IN’S THESIS REGARDING REDISTRIBUTION CANNOT EXPLAIN LOCHNER ERA CIVIL LIBERTIES DECISIONS 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,213 that the Lochner era Court decided under the Due Process Clause. In Meyer, the Court invalidated 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 post-World War I nativism.214 Arch-Lochnerian Justice James McReynolds wrote a sweeping opinion holding that the Due Process Clause protects a wide range of freedoms, including not only the “right of the individual to contract,” and “to engage in any of the common occupations 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 conscience,”215 along with “other privileges long recognized at common law as essential to the o rderly pursuit of happiness by free men.”216 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 72 0 1902-1903 48 2 1903-1904 57 3 1904-1905 52 2 1905-1906 103 1 1906-1907 94 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 decisions 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 FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT: A STUDY IN THE FEDERAL JUDICIAL SYSTEM 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 legislation, actua 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 521- 22. 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 MORTON KELLER, REGULATING A NEW SOCIETY: PUBLIC POLICY AND SOCIAL CHANGE IN AMERICA, 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 laissez- faire economic system governed by form alist common law rules of contract, property, and tort. Rather, the Court is using “common law” in the sense of the traditional rights and liberties of the American people.217 As Robert Post notes, Meyer “resolutely refuses to confine that realm [of liberty] to mere matters of economic exchange. This refusal is particularly striking because the passage’s assertions are supported only by the citation of a long string of substantive due process decisions dealing with specifically economic regulation ranging from Lochner itself to Adkins.”218 Meyer was no anomaly. Two years later, in Pierce v. Society of Sisters,219 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.220 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 instruction from public teachers only.” 221 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 education of his own child without unreasonable restrictions; the Constitution 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] the 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 PHILIP B. KURLAND, RELIGION AND THE LAW: OF CHURCH AND STATE AND THE SUPREME COURT 27 (19 62) (“P robably the most a bused citation in th e constru ction of the first amendment is the case of Pierce v. Society of Sisters. The ca se raised no chur ch-state 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 534. For further discussion of Meyerand Pierce, see WILLIAM G. ROSS, FORGING NEW FREEDOMS: NATIVISM, EDUCATION, AND THE CONSTITUTION: 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 COLUM. L. REV. 1622, 1641 (19 86). 224 Farrrington, 273 U.S. at 298.
SPRING 2003 39 Bernstein also invalidated an anti-Chinese law that required merchants in the American- occupied Philippines to keep their account books in English or Spanish.225 In Gitlow v. New York,226 the Court declared clearly for the first time that “freedom of speech and of the press . . . are among the fundamental personal rights and ‘liberties’ protected by the Due Process Clause of the Fourteenth Amendment from impairment by the States.” The Court ruled in favor of the state in that case. As in the context of economic regulations, Lochnerian Justices gave a broad scope to the states’ police power in regulating speech and other “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, overcame their general reluctance to invalidate state regulations only because of the Court’s Lochnerian decisions.227 In Gitlow, Holmes, joined by Brandeis, wrote a dissent that helped establish modern free speech jurisprudence.228 What has not often been noticed is that Holmes conceded that free speech guarantees applied against the states only because the Court had already interpreted the word “liberty” broad ly in other, more typically Lochnerian, contexts. He wrote: “The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used.”229 In 1931, the Court, in a 7-2 opinion, McReynolds and 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 which 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 people and that changes may be ob tained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which upon its face, and as authoritatively 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). 226 268 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 who now wished to limit Congressional authority over speech had been “distinctly opposed to the curtailment of legislative discretion by definite, unbending constitutional limitations” with regard to social and economic 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 YALE 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. 40 Lochner’s Legacy’s Legacy
Fourteenth Amendment.”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 government,”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 used the Due Process Clause of the Fourteenth Amendment to protect what it considered the fundamental liberties of Americans from arbitrary or unreasonable legislation.235
IV. THE LOCHNER OPINION DOES NOT SUPPORT SUN STE IN’S THE 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 representative opinion presents difficulties. Justice Rufus Peckham, the author of Lochner, would undoubtedly have written a far more libertarian opinion if he had his druthers.236 Instead, he crafted an opinion that received the endorsem ent of a bare majority of the Court. Lochner unsurprisingly reads like a compromise opinion, with much ambiguous dicta. Even so, no one has adequately explained how Peckham and Brewer found three additional 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 explain Lochner era jurisprudence, perhaps it at least explains the anomalous Lochner opinion. Sunstein finds “two features of the Court’s approach” in Lochner to be “especially distinctive.” 237 These features, not surprisingly, track Sunstein’s
232 Id. 233 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 by the United States Supreme 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.
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thesis that Lochner era jurisprudence was about constitutionalizing common law rules and prohibiting redistributive regulations. First, “the Court sharply limited the category of permissible government ends.”238 As Sunstein puts it, the state could not penalize Lochner, the protagonist in the litigation, because he had committed no “comm on law wrong” and “regulatory power was largely limited to the redress of harms recognized at common law.”239 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 maximum ho urs law].”240 Sunstein claims that the law “was invalidated as impermissibly partisan—what might now be called special-interest legislation.” 241 Sunstein is hardly alone in reaching this conclusion (though he m ay have been the first to express it).242 The only support provided, however, is the Court’s stated suspicion 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 health or welfare.” 243 The “other motive” is
238 Id. 239 Id. 240 Id. 241 Id. at 879. 242 See GILLMAN, supra note 30; CUSHMAN, supra note 45, at 55; Rebecca L. Brown, Activism is Not a Four-Letter Word, 73 U. COLO. L. REV. 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 BROOK. L. REV. 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”). 243 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 ERNST FREUND, THE POLICE POWER 534-35 (1905). Peckham, 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 Supreme 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 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 attempting to aid special interests.244 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, or inferable from their operation.”245 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 because 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 concluded that the law’s “real object and purpose were simply 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 employees.”246 Beyond the generality of wishing 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
legislation thesis interpretation of Lochner, see BERNSTEIN , supra note 87, at 4; David E. Bernstein, Lochner, Parity, and the Chinese Laundry Cases, 41 WM. & MARY L. REV. 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 provides 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 YALE L.J. 31, 44 (1991); Daniel A. F arber, Public Choice and Just Compensation, 9 CONST. COMMENTARY 279, 288 (1992); Daniel A. Farber & Philip P. Frickey, The Juris prude nce of P ublic Choice, 65 TEX. L. REV. 873, 879 (1987); H erbert Hoven kamp, Legisla tion, We ll-being, a nd Pu blic Choice, 57 U. C HI. L. REV. 63, 85 (1990); Jonathan R. Ma cey, Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 227 (1986); Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Readin g of Statutes, 66 N.Y.U. L. REV. 1, 5 (1991); Public Choice Theme Issue, 6 GEO. M ASON L. REV. 709 (1998); Sympos ium, Positive Political Theory and Public Law -- Part II, 80 GEO. L.J. 1737 (1992); Symposium on the Theory of Public Choice, 74 VA. L. REV. 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. 471, 480 (1902) (“We 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,247 in the Lochner Court’s decision. Peckham declined to even directly address “class legislation” objections to the hours law, even though he had ample incentive 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 contract 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 and could be overcome only if the law was a “labor law” needed to redress some deficiency in the bakers’ ability 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.249 Peckham, meanwhile, concluded that bakers are “in no sense wards of the State.”250 Thus, unless the hours law, which “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 individual.” 251 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. TIMES, 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 share 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. Adair v. United 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 RANDY BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 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 CORWIN , supra note 22, at 86 (“Manifestly, the Lochner Case discards 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 unhealthful.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 cite254—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 was 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. & POL’Y REV. 33, 38 (2002) (in a reflection of still-common se ntiment, referring to Lochner as the “quintessential legal formalist opinion” ); J. M. Ba lkin, Ideology and Counter-Ideology from Lochner to Garcia, 54 UMKC L. REV. 175 (1986) (describing Lochner as elevating formalist logic above empirical data). In fact, howev er, the ap pendix to Lochne r’s brief c ontained 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, Peckham 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 “looking through statistics regarding all trades and occupations.” Lochner 198 U.S. at 58. 255 Lochner, 198 U.S. at 59-61 (comparing 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.
SPRING 2003 45 Bernstein measure, but a “mere meddlesome interference[] with the rights of the individual,” 256 and an unconstitutional violation of liberty of contract.257 The Lochner Court, then, was doing exactly what it purported to do: protecting a fundamental right to liberty of contract from what it considered arbitrary government interference.258 Preserving common law distributions played no role in the opinion. The Lochner Court’s determination that the bakers’ hours law was not a health law rendered the legislative motivation behind the law— whether it was a “self-interested deal,” as Sunstein suggests the Court believed,259 satisfaction of arbitrary whim, sincere (albeit mistaken) belief that bakers were in special need of government protection, a desire to make bakers dependent on government, or a desire to take a first tentative step toward maximum hours laws for all workers260—irrelevant. The law was unconstitutional because the Court found that it violated liberty of contract with no valid police power justification, not because the Court suspected a particular illicit legislative motive, such as transferring resources from employers to employees.261
V. THE END OF THE LOCHNER ERA WAS NOT A RESULT OF THE REJECTION OF TRADITION AL BASELINE ANALYSIS
256 Lochner, 198 U.S. at 61. 257 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 therefore came 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 the 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 . Some believe that Peckham originally drafted a dissent on beha lf of himself and three other Justices, but later picked up another vote. See CHARLES HENRY BUTLER, A CENTURY AT THE BAR OF THE SUPREME COURT OF THE UNITED STATES 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); WILLARD L. KING, M ELVILLE WESTON FULLER: CHIEF JUSTICE OF THE UNITED STATES, 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. JOHN E. SEMONCHE, CHARTING THE FUTURE: THE SUPREME COURT RESPONDS TO A CHANGING SOCIETY, 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 would 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. 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: To the extent that the sum fixed [by the minimum wage 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 condition there rests upon him no peculiar responsibility, and therefore, in effect, arbitrarily shifts to his shoulders a burden which, if it belongs to anyb ody, belongs 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 denial of a living wage. . . casts a direct burd en for their support upon 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 employers. 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. Unfortunately, according to Sunstein, the Court, failed to seize on this point to transform constitutional jurisprudence, instead ultimately concluding that the lesson of Lochner was to avoid judicial activism, especially in the economic 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, unfair 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). 263 Six years earlier, in Stettler v. O’Hara, 243 U.S. 629 (1917), the Court split 4-4 in upholding a minimum wage law for women. 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, and 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 more 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).
SPRING 2003 47 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 occupations, and did not take into account the disparate needs of different women;265 (2) sought to protect the right 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 effect;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 Nineteenth Amendment, fully equal citizens, which in turn created
265 Id. at 556-57. 266 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 employee 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 constituent 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 matter of degree and pra ctical experience and not of pure logic. Certainly the wide difference between prescribing a minimum wage and a maximum wage 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 workers 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 (McReynolds, 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 more 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.” NANCY WOLOCH, MULLER V. OREGON: A BRIEF HISTORY WITH DOCUMENTS 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. ALICE KESSLER-HARRIS, IN PURSUIT OF EQUITY: WOMEN, M EN, AND THE QUEST FOR ECONOMIC CITIZENSHIP IN 20TH-CENTURY AMERICA 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 workers more than their worth. If the labor market was competitive, the market wage would be approximately 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 mean 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 Rome G. Brown, The Statutory Minimum Wage, 22 CASE AND COMMENT 281, 286 (1915) (explaining why minimum wage laws may lead to broad governm ent control over wages). 48 Lochner’s Legacy’s Legacy a presumption that laws subjecting women to special disabilities or privileges are unconstitutional.268 The Court, then, noted several reasons the minimum wage law for women was unconstitutional, but Sunstein mentions only one of them. The majority opinion received just five votes. Given the rarity of concurrences at the time,269 it is entirely possible, perhaps likely, that not every Justice agreed with each of the Court’s rationales. Indeed, it is possible that none of the rationales, taken individually, would have received a majority.
B. West Coast Hotel The language quoted by Sunstein from West Coast 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 did not directly contradict Lochner’s protection of liberty of contract.271 Rather, the Court argued that liberty of contract was merely a subset of liberty. Legislatures were permitted to abrogate it in the public
268 Justice 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 my 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 Amendment 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 HARV. L. REV. 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 woman.” Quote d in ELIZABETH FAULKNER BAKER, PROTECTIVE LABOR LEGISLATION: W ITH SPECIAL REFERENCE TO WOMEN IN THE STATE OF NEW YORK 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. New York, 264 U.S. 29 2, 293-95 (1924). By contrast, in Adkins the Court argued that women were just as capa ble of negotiating 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 AM. J. POL. SCI. 362 (2001). 270 West Coast H otel v. Parrish, 300 U.S. 379, 39 9-400 (1937). 271 See ACKERMAN, supra note 2, at 364 (“Hughes ’s opinion cited Lochner with approval, accepted the idea that the Due Process 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.”); JULIE NOVKOV, CONSTITUTING WORKERS, PROTECTING WOMEN: GENDER, LAW, AND LABOR IN THE PROGRESSIVE ERA AND NEW DEAL YEARS 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).
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interest, as other Supreme Court precedents during the Lochner era had shown.272 Given economic conditions during the Depression, the Court could not say it was unreasonable for a state legislature to try to guarantee women 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 less solicitude for women’s rights 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 against a full assertion of those rights.”274 Like the necessitous miners of Holden v. Hardy, women could not be expected on to protect their own interests. The majority noted that the Court had acknowledged women’s special 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 did not violate the Constitution. The women’s rights part of the C ourt’s holding also did not depend on a rejection of Lochner era jurisprudence, because the opinions the Court relied upon—Muller, Taft’s dissent in Adkins, and Radice—were well within the moderate Lochnerian mainstream.278 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 STATE AND FREEDOM OF CONTRACT 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 workers. 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 Hotel’s rejection of Adkins is highly questionable. 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 thus a kind of “taking” from A to B. According to the Court, if B is needy, it is not A, but the public 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 “unconscionable emp loyers.”279 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 subsidy 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.281 The language Sunstein quotes from West Coast Hotel, then, assumes a baseline of government inaction. Had the government not established a welfare system, unconscionable employers would not have been able to rely on the public fisc to subsidize their exploitation of women workers by paying them less than their market wage.282 At least under the rationale of the West Coast Hotel dicta quoted
279 Sunstein, supra note 37, at 876 (emp hasis added). 280 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 achieved. It is unnec essary to cite official 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 with 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 minimum, 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, could not be supplied for long and maintain American standards of civilization. Without assistance from the public in some 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 deterioration. 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.
SPRING 2003 51 Bernstein by Sunstein, in the baseline world of a pure laissez-faire system, minimum wage laws could not logically pass constitutional muster. Precisely because the government had acted, however, employers could no longer claim the right 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 what 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 opportunity to reject traditional baseline analysis 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 actually adopted this analysis is untenable.283
CONCLUSION 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 for the District, 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. Mc- Curdy, 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. 284 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 arguing that the Lochner era Court’s vision of such rights was limited to, and coextensive with, the Langdellian common law.285 Similar understandings of Lochnerian jurisprudence had been floating around the legal academy for decades, with believers in sociological jurisprudence,286 Legal Realists,287 and Critical Legal scholars, 288 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., DERRICK A. BELL, JR., RACE, RACISM AND AMERICAN LAW 42 (3d ed. 1992) ; PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING 228 (2d ed. 1983) ; RICHARD HOFSTADER, SOCIAL DARWINISM IN AMERICAN THOUGHT 5-6 (rev. ed. 1955); CLYDE E. JACOBS, LAW WRITERS AND THE COURTS: THE INFLUENCE OF THOMAS E. COOLEY, CHRISTOPHER G. TIEDEMAN, AND JOHN F. DILLON UPON AMERICAN CONSTITUTIONAL LAW 24 (1954); ROBERT G. MCCLOSKEY, AMERICAN CONSERVAT ISM IN THE AGE OF ENTERPRISE, 1865-1910, at 26-30 (1951); ARNOLD M. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW: ATTITUDES OF BAR AND BENCH, 1887-1 895, at 236 (1960); B ENJAMIN TWISS, LAWYERS AND THE CONSTITUTION: HOW LAISSEZ FAIRE CAME TO THE SUPREME COURT 154 (1942); MORTON WHITE, SOCIAL THOUGHT IN AMERICA: THE REVOLT AGAINST FORMALISM 104 (194 9); Ronald F. H owell, The Judicial Conservatives Three Decades Ago: Aristocratic Guardians of the Prerogatives of Property and the Judiciary, 49 VA. L. REV. 1447 (1963); Alpheus Thom as Maso n, The Conservative World of Mr. Justice Sutherland, 1883-1910, 32 AM. POL. SCI. REV. 443, 470 (1938); Fran k R. Strong, The Econo mic Philosophy of Lochner : Emergence, Embrasure and Emasculation, 15 ARIZ. L. REV. 419 (1973); Roscoe P ound, The Scope an d Purpose of So ciological Jurisprudence, Par t II, 25 HARV. L. REV. 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 fundamental 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 law 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 HARV. L. REV. 383 (1908). For critiques of the Lochner era Court’s purported formalism, see Louis D. B randeis, The Living Law, 10 ILL. L. REV. 463, 467 (1916) (bemoaning the alleged abstract reasoning and legal formalism that led judges to invalidate reform legislation); Roscoe Po und, Mechanical Jurisprudence, 8 COLUM. L. REV. 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 COLUM. L. REV. 603 (1943); Robert Hale, Coercion and Distribution in a Supposedly N oncoe rcive Sta te, 38 POL. SCI. Q. 470 (1923) (arguing that bargaining power is a func tion of legal rules and not part of pre-existing natural order); see generally Thomas C. Grey, Langde ll’s Orthodo xy, 45 U. PITT. L. REV. 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,’ Cardozo’s ‘demon of form alism,’ and Felix Cohen’s ‘transcend ental nonsense.’”); James Wilson, The Morality of Formalism, 33 UC LA L. REV. 460 (1 985) (n oting that the Legal
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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.289 Sunstein was the first modern scholar to clearly articulate this historical understanding of Lochner,290 and, importantly, to use it to engage in a wide- ranging critique of “Lochner-like presumptions” in modern constitutional law.291
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 the theory of laissez fa ire was th e view th at “the ou tcome o f econom ic activity 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 Historical 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. SCH. L. REV. 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 one. E.g., Richard H . Pildes, Forms of Formalism, 66 U. CHI. L. REV. 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 AM. U. L. REV. 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. REV. 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 law 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 nding 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, 54 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 unassailable by legislation.292 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’ compensation 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 particular rule of the common law.”293 The Court also upheld a wide range redistributive laws, ranging from antitrust laws intended to help small proprietors at the expense of large corporations to estate taxes to various ameliorative labor laws. Moreover, Sunstein’s thesis regarding Lochner cannot explain the Supreme Court’s civil liberties decisions of the 1920s and early 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 ideological construct to constitutional history for presentist purposes, while ignoring or neglecting contrary evidence.294
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 view, 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 COLUM. L. REV. 601, 605 (1995 ). Sunste in has been criticized in other contexts for making broad assertions based on dubious historical analysis. Professor Martin 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 COLUM. L. REV. 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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Unfortunately, scholarship about the Lochner era has consistently been distorted by presentist concerns because Lochner has been the leading case in the “anti- canon,” the group of wrongly decided cases that help frame what the proper principles of constitutional interpretation should be.295 No scholar 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 precise opposite of Lochner. The tenor of Lochner’s Legacy, then, was what one would expect from a leading constitutional theorist circa 1987. Today, the willingness of mainstream constitutional scholars such as Bruce Ackerman,296 Owen Fiss,297 and Rebecca Brown298 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 historical scholarship about Lochner over the last decade,299 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. 300
Process: A Reply to Professors Strauss and Sunstein, 71 TEX. L. REV. 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 ACKERMAN, 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