In the next Liberty Law Talk I discuss with David Bernstein of the George Mason University School of Law his excellent work of constitutional history Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. The Lochner decision, of course, is a progressive teaching moment in the American legal academy. Virtually any constitutional law course will teach the case as an exercise in laissez-faire fundamentalism that refused to permit sensible labor regulations on behalf of industrial laborers. Fortunately, students are told, it is a constitutional moment that has been superceded by New Deal jurisprudence that upholds virtually any regulation of economic activity. Professor…
George Thomas, Keith Whittington, and Ted McAllister evaluate David Bernstein’s important new book Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform.
When the Legend becomes Fact
More than a hundred years after it was decided Lochner v. New York, the 1905 bakeshop case that struck down a New York maxim-hours law for bakers, continues to provoke. Jurists point to it as the exemplar of illegitimate judicial lawmaking, as does the occasional Senator at judicial confirmation hearings. Even constitutional scholars, who by now should know better, cannot seem to resist staid criticisms of the opinion that are, more often than not, wide of the mark.
Effective story-telling is ultimately an exercise of power. When historical accounts take on the authority of received wisdom they frame the reality we experience, offering simplified narratives of our inheritance and narrowed perspectives on our current range of choices. Powerful narratives have clear heroes, villains, victims and that help us see ourselves as part of a clear historical trajectory and they offer equally clear guidance about what direction we should choose. The more stock are the characters in our history the more politically powerful is the story. Those historical characters become part of a morality play. As contemporary inhabitants of this play, people must seek to avoid being attached to certain characters or risk fundamental misunderstanding along with political, social, and cultural irrelevance. Because all such powerful historical narratives are simplistic and produce stock characters, they necessarily determine the limits of political and cultural life in our time. The more distinct are the lines of development (causal relationships that lead to good or evil outcomes) the more effectively we can act on what we “know” about our past. In short, the past as constructed by the story-tellers limits how we can speak and act relative to social and political power.
I recently taught an undergraduate class on the history of civil liberties in the United States. After a class session on the U.S. Supreme Court case of Lochner v. New York (1905), a student came up to me and asked when we were going to talk about substantive due process. I should have expected the question, but I had allowed myself to forget the continuing popular resonance of the phrase. The query forced me to think a bit more about how I should teach constitutional history.
The turn-of-the-century case of the bakers and New York’s maximum working-hours law is, of course, the poster child of substantive due process, the idea that the due process clause of the Fourteenth Amendment imposes substantive limitations on the legislature. Lochner is now firmly entrenched in what law professors Jack Balkin and Sandy Levinson have called the “anti-canon,” cases that are held up as exemplars of when the Supreme Court got the legal answer dramatically wrong and as object lessons of what judges should not do in the future.