The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence.

• Author: Anderson, C. Ian

The by now almost mythical Supreme Court decision in Lochner v. New York(1) has long been the centerpiece of a series of debates over the evils of judicial activism, the abuse of judicial power, and the legitimacy of substantive due process - debates that are still very much alive today.(2) Lochner's symbolic significance has greatly transcended whatever historical impact may have followed from the Court's decision to strike down a New York law that limited bakers' working hours to sixty hours a week and ten hours a day.(3) The Lochner era has come to represent a period in our constitutional history from roughly 1880 to 1937 when conservative Justices aggressively exceeded the proper boundaries of their authority to interfere with the political process.(4)

Many of those who have decried the abuses of this period have taken the position articulated by Justice Oliver Wendell Holmes in his famous Lochner dissent: that the majority decided the case "upon an economic theory which a large part of the country does not entertain" and that the "Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."(5) These critics have portrayed the Justices in the Lochner majority as being motivated by their own policy preferences favoring laissez-faire economics and social Darwinism.(6) By reading a guarantee of liberty of contract into the Due Process Clause of the Fourteenth Amendment, the critics continue, the Lochner Court fraudulently interpreted the Constitution so as to protect the interests of private property and to provide cover for its own act of judicial legislation, as the Court substituted its policy preferences for those of the legislature. Countering this neo-Holmesian interpretation of the Lochner era, however, more recent scholars have proposed a more complex picture of the underlying ideology motivating the Justices during this part of our nation's history.(7)

In The Constitution Besieged, Howard Gillman(8) builds on this still-developing revisionist interpretation of the period to suggest an alternative image of Lochner-era jurisprudence. Gillman's account is more historically grounded and more faithful to the jurisprudential language employed by the state and federal courts of the time than either the traditional or the early revisionist accounts. Instead of explaining the Lochner era in terms of personal policy preferences, Gillman argues that the decisions and opinions of this period represented a "serious, principled effort" (p. 10) to maintain the coherence and integrity of a long-standing constitutional ideology that distinguished between valid economic regulation and invalid "class," or factional, legislation (pp. 10-11). Gillman premises his approach on the belief that judicial opinions are not masks of empty rhetoric and that the constitutional jurisprudence of this period - and legal ideology generally -- offers a coherent means of explaining judicial behavior (pp. 15-18). The author attempts to demonstrate how federal and state judges shared a common method of evaluating state legislatures' exercise of police powers based on an understanding of political legitimacy and equality having its roots in the creation of the Constitution.

The Justices of the Lochner Court, Gillman contends, brought about a crisis in American constitutionalism by stubbornly adhering to this constitutional ideology - which was hyperantagonistic toward "class" politics and legislation - despite the rapid industrialization and transformation of American capitalist relations in this period. While legislatures were attempting to extend unprecedented protections to those groups that had become vulnerable to the coercive forces inherent in these new capitalist forms of production, the Supreme Court was struggling to maintain an increasingly anachronistic constitutional ideology. In essence, Gillman suggests that the Justices simply failed to perceive or acknowledge that profound changes in American society had fatally undermined the theoretical underpinnings of their police powers jurisprudence.

Although Gillman offers The Constitution Besieged as a comprehensive account of the constitutional crisis that took place during the Lochner era, the author's greatest contribution to the reinterpretation of this period lies in his detailed account of the development of police powers jurisprudence in state courts prior to the Lochner decision in 1905 and the manner in which the language and reasoning of the Supreme Court opinions prior to and following Lochner reflect this development. In his effort to present "evidence of the late-nineteenth-century legal community's obsession with drawing distinctions between legitimate promotions of the public interest and illegitimate efforts to impose special burdens and benefits" (p. 9), however, Gillman only rarely acknowledges that judges in this period did in fact believe in something they called "liberty of contract" (p. 6). Nevertheless, even though Gillman may be trying to prove too much, his history of American police powers jurisprudence skillfully highlights the doctrine's antagonism to "class" or "partial" legislation and corresponding emphasis on equal rights and the need for police regulations to provide general benefits.

Gillman's portrayal of the Lochner era is probably best understood, not as a complete refutation of the laissez-faire, liberty-of-contract model of the period, but rather as a deepening and broadening of our understanding of these terms by placing them in their particular American historical context.9 After all, the key for any student of this period is not merely to reject or attach labels like laissez-faire or liberty of contract to judicial ideology but to understand why the courts at times upheld, and at other times struck down, legislation that interfered with the free market. To this end, Gillman's contextual approach has much to add to our understanding of Lochner-era constitutional jurisprudence.

Gillman begins his account by looking at the events and conditions surrounding the framing of...