Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform.

• Author: Araiza, William D.
• Position: Book review

REHABILITATING LOCHNER: DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM. By David Bernstein. (1) Chicago, University of Chicago Press. 2011. Pp. viii, 194. $45.00 (Cloth).

"If you think Roe (3) is right, why do you think Lochner (4) is wrong?"

Constitutional law professors love playing this card with students. We like to think it forces them to confront how their policy preferences influence their legal analysis. And it is a nice trick: Roe v. Wade (5) responds to many (though not all (6)) students' policy intuitions about the desirability of a broad abortion right, while Lochner v. New York (7) is often taught as the paradigmatic anti-canonical case, a dark stain on the Supreme Court in the tradition of Dred Scott v. Sanford (8) and Plessy v. Ferguson (9) (the latter of which is sometimes paired with Lochner as the one-two punch of the evil Gilded Age Court).

But not so fast. David Bernstein has done admirable work in debunking the melodramatic aspects of Lochner, and of the Lochner era more generally. His recent book, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, while breaking little new analytical ground beyond his voluminous scholarship on the issue, (10) recapitulates his impressive revisionist scholarship about Lochner and its eponymous era. His careful research makes clear that the Lochner era was not one in which a hopelessly reactionary Court in the service of the economic elite continually used woodenly formalistic reasoning to stymie needed social reform. Instead, he paints a much more balanced picture of the contending forces of the period.

To begin with, Bernstein views the Court's conservatives as sincerely concerned with individual liberty, both in terms of results and philosophy. For example, consider Meyer v. Nebraska, the 1923 case where the Court struck down a state law prohibiting the teaching of German. (11) Bernstein notes that Meyer relied heavily on economic due process precedents, including Lochner itself. Thus, to the extent that modern substantive due process cases rely on Meyer, (12) a fair case could be made that Roe was in fact the spawn of Lochner. He also observes that Meyer was authored by Justice McReynolds, whose notorious racism and anti-Semitism makes him, at least among the cognoscenti, probably the most unattractive villain of the pro-Lochner Four Horsemen. (13) To gild the lily, one could add to Bernstein's analysis the observation that McReynolds' prose from the follow-on case to Meyer, Pierce v. Society of Sisters, (14) especially his rejection of the state's authority to "standardize" children, (15) bears for contemporary liberals an uncomfortable resemblance to Justice Brennan's language in Michael H. v. Gerald D. about the protection due process affords to the freedom "not to conform." (16)

Contrast this picture of the conservative wing of the Court with the picture Bernstein paints of their Progressive opponents, on and off the Court. Rather than viewing them as heroic defenders of the downtrodden, Bernstein sees them as statists who would allow government a free hand to protect white, male, unionized labor at the expense of less favored workers, outlaw private (i.e., Catholic) education, and otherwise trample on individual liberties in the service of broader social goals. Indeed, Bernstein paints the Progressive cause in even darker terms: in Progressives' views, less-capable workers are deemed unworthy of protection if minimum wage laws lead to their exclusion from the job market (pp. 53-54), women are intentionally excluded from that market (pp. 58, 62, 65, 66), and most menacingly, mental "defectives" are susceptible to the state's power to sterilize them for the good of society (pp. 96-98). If Bernstein's description of the conservatives can be summed up by McReynolds's protection of parents' liberty to avoid state "standardization" of their children, his description of the Progressives can be summed up by Holmes' cruel aphorism in Buck v. Bell: "Three generations of imbeciles is enough." (17)

But the standard Lochner story may be invalid for a second reason as well, one that Bernstein does not accept. A second question raised by Lochner is whether Roe necessarily follows from it, or, by contrast, whether Roe and modern due process cases can be understood as having a different parentage. Under an alternative view to Bernstein's, modern substantive due process owes (or should owe) at least as much to equality concerns as to liberty. (18) If this view is accepted, then the Lochner-Roe connection is broken, or at least mitigated. In that case, maybe there is an answer to the law professor's gotcha question. Maybe you can agree with Roe but disagree with Lochner.

This Review follows, approximately, the structure of Bernstein's book. Part I reviews the story of Lochner v. New York: its facts, the opinions and the question of its jurisprudential foundation. Part II considers Lochner's implications, both for what are now called "civil rights" or "civil liberties" and for minorities. Part III considers the modern implications of the absorption of many Lochner-based precedents into equal protection or equal protection-like categories (19)--in particular, what that absorption means for Lochner's status as the father that modern substantive due process jurisprudence refuses to acknowledge. (20)

1. THE LOCHNER CASE

   1. THE FACTS

      Bernstein's description of Lochner does much to dispel the notion that the New York Bakeshop Law reflected a simple story of oppressed workers seeking legislative aid against powerful capitalists. Bernstein argues that, as is sometimes the case with regulatory legislation, the powerful sectors of the relevant industry supported the law, with an eye to restricting the competition posed by newer, smaller entrants into the market. In this case, Bernstein argues that the large bakeries supporting the law already satisfied its sanitary rules and maximum working-hours provisions, and thus had little to fear from it (p. 27). Conversely, Bernstein argues that the forces opposed to the law were small bakeshops, in particular those owned by recent Jewish, Italian and French immigrants (p. 24).

      In setting up the conflict this way, Bernstein returns to a theme that he has expressed before: that ostensibly pro-labor regulatory legislation, such as laws permitting or even requiring closed-shop arrangements, are often really attempts by entrenched groups to secure benefits for themselves by limiting the operation of the free market. (21) Bernstein has made this point when arguing that pro-union legislation harmed African-Americans who were shut out of those unions because of racism, and thus were shut out of economic opportunities when legislation benefitted union members at the expense of nonunion workers. In Rehabilitating Lochner he suggests similar effects, if not similar malicious motivation, with regard to laws regulating the terms of work performed by women (pp. 58, 62, 65, 66). (22) The heroic picture of Progressive legislatures protecting oppressed workers from rapacious capitalists becomes instead an anti-heroic one where powerful interests groups (now including unions) band together to preserve their monopoly privileges against the striving of less powerful underclass groups.

      But problems lurk within this story, even as Bernstein tells it. First, a single piece of legislation may have many different effects, some nefarious and others quite benign. For example, Bernstein cites bakery owners who supported the law in part because they hoped its sanitary provisions would improve the reputation of bakeries, thus leading consumers to patronize them rather than baking their own bread (p. 27). Presumably, government has a legitimate interest in increasing the public's confidence in an industry-based food distribution network, apart from either any discriminatory effects the law might have or any restrictions on liberty of contract it might impose. Concededly, this justification does not mitigate the law's impact on equality or liberty rights. But it does blur the previously-clear picture of the bakeshop law as purely special interest legislation, unless legislative encouragement of industrial growth is itself special interest legislation. (23)

      Second, the underlying facts justifying legislation are often hard to discern conclusively. Bernstein's own research reveals this. He notes that, in the run-up to the bakeshop law, New York had been roiled by accounts of unsanitary conditions in bakeshops. In particular, he recounts the story of a "dying Jewish baker ... carried from a cellar bakery on the Lower East Side" in 1894 (p. 25). Based on that event, the bakery union chief convinced a newspaper to run a series of muckraking articles investigating and exposing conditions in bakeshops. But Bernstein expresses some doubt about the accuracy of the reporting, based on the reporter's sympathies and the timing of the article. He also cites two government reports that came to contradictory conclusions about the veracity of the reporter's conclusions (p. 25).

      How is a legislature to know which facts most closely approximate reality? More relevantly, how is a court to know? The difficulty courts have in discerning both legislative motivations and underlying policy facts has led, in the modern era, to the extreme deference courts exhibit when considering claims of infringements of non-fundamental rights and discrimination against non-suspect classes. Of course, Bernstein is an academic, not a legislator or a judge; based on his historical investigation he might be able to draw more confident conclusions about these issues. But even he is forced to introduce some ambiguity into his narrative. For example, as noted above he cites two different government studies that reached different conclusions about the health risks of bakeshops.

      It is probably the case that both public health and anti-newcomer sentiment motivated...