Reynolds on Bernstein on Lochner

The Lochner Ness Monster /June 2011/Commentary

Rehabilitating Lochner:Defending Individual Rights Against Progressive ReformBy David E. BernsteinUniversity of Chicago, 208 pages

With the possible exception of Plessy v. Ferguson, which gave us the racial doctrine of “separate but equal,” the case of Lochner v. New York stands as the most reviled decision of the post–Civil War Supreme Court. As every law student knows, Lochner was a case in which a court packed with business sympathizers stuck it to the little guy in a shameless display of judicial activism.

But, like a surprisingly large number of the things everyone knows, this conventional wisdom is almost entirely wrong, and David E. Bernstein’s new book, Rehabilitating Lochner, makes clear just how wrong it is—and how and why the Lochner narrative became established in the legal academy. In fact, writes Bernstein, “The Lochner line of cases pioneered the protection of the right of women to compete with men for employment free from sex-based regulations, the right of African Americans to exercise liberty and property rights free from Jim Crow legislation, and civil liberties against the states ranging from freedom of expression to the right to choose a private school education for one’s children.”

Rather than being lumped together with the Plessy case, Bernstein argues, the Lochner ruling should be regarded as the anti-Plessy—a decision that refused to defer to stereotypes and self-dealing among the ruling class. Bernstein, a professor at George Mason Law School and a member of the blogging team at the Volokh Conspiracy, has produced a carefully researched, clearly reasoned, and ultimately powerful case that Lochner has been unjustly demonized.

Lochner v. New York, which was brought to the Supreme Court in 1905, involved a statute that set maximum working hours for bakers. The law was, as Bernstein notes, not so much intended to protect bakers’ health (the justification given), but rather to drive small bakeshops, often family businesses that employed recent immigrants, out of business. (The Bakers’ Union newspaper condemned these immigrant workers as “the cheap labor of the green hand from foreign shores.”)

As is often the case with regulation, large bakeries didn’t mind the law governing maximum hours because they could hire multiple shifts. Small bakeries, with their smaller workforces, found compliance far more difficult. The statute also set limits on ceiling heights designed to put cellar bakeries out of business.

Small bakers felt that the law was enforced much more vigorously where nonunion bakeries were concerned, and Lochner, an immigrant who had opened his own bakery in Utica in 1894 where he worked alongside his wife and employees, soon attracted official attention. Lochner was charged with violation of the law because he let an employee named Aaron Schmitter and his family live above the bakery. What this sort of thing had to do with employee welfare wasn’t clear then and isn’t clear now a century later, but a ban on this sort of arrangement clearly disadvantaged small and family businesses in favor of big bakeries.

In what was probably an arrangement to test the law, Schmitter wound up swearing an affidavit that he had stayed longer than the permitted number of hours so as to learn how to bake cakes. Lochner was charged with a criminal violation, and with support from the Utica Master Bakers Association, he took the case all the way to the Supreme Court. As Bernstein notes: “Much to almost everyone’s surprise, Lochner won, 5-4.”

New York’s law, the Court held, wasn’t about health at all. Numerous exceptions and loopholes in the statute undercut that rationale, as did the absence of any evidence that baking was a particularly hazardous profession or that limiting the hours bakers worked had anything to do with the wholesomeness of bread. The majority weighed the state’s claims against scientific evidence, found them wanting, and concluded that the statute lacked sufficient justification when weighed against the freedom of contract protected by the Fourteenth Amendment’s due process clause. It was, said Justice Peckham, “a mere meddlesome interference with the rights of the individual.”

Despite the holding, Bernstein writes, “ultimately, the practical effect of Lochner on bakers’ hours was very small.” By the time the decision was handed down, “productivity and working conditions had improved throughout the United States as the nation grew wealthier. Shorter working hours were becoming the norm nationwide, including in the baking industry.”

Even without pressure from regulation and union complaints, basement bakeries were finding it hard to compete economically with larger concerns, and immigrants found better work elsewhere. The law’s sanitary provisions, meanwhile, were unaffected by the Lochner decision.
Nor was Lochner controversial at the time it was decided. “Of the eight law review articles to comment on Lochner shortly after it was released, seven supported it, some vigorously,” Bernstein explains. “Also contrary to historical myth, newspaper editorial commentary on Lochner was generally supportive.”

That general opinion would change later, when progressives and elite lawyers enamored of government power found the notion of “liberty of contract”—the central finding in Lochner—an unwelcome obstacle to their practical goals. To the progressives, “abstract legal freedom” needed to give way to considerations of “social policy,” and limitations on government power in the name of constitutional freedoms were old-fashioned.

Bernstein spends a substantial part of his book describing the way in which an opinion that stopped a joint effort by large corporate interests and big unions to squash small businesses was somehow turned into the centerpiece of a narrative about the Supreme Court upholding big business at the expense of the little guy. Though the Lochner holding was consistent with the views of many scholars of the day, and with much preexisting case law, it was soon treated as some sort of judicial invention, the product of a Supreme Court without legal standards, but with a pro-corporate agenda. That the narrative was a false one did not, for decades, undermine its force.

In my experience, law students exposed to Lochner for the first time, without being told that they’re supposed to hate it, tend to find it pretty reasonable: state passes law that impinges on individual freedom, court finds alleged purpose unpersuasive, strikes law to uphold freedom. That was pretty much the story of federal courts and the Constitution in the 20th century, and if Lochner had been at all unusual, that was only because it came so early on in the process. In methodology and approach, Lochner fits comfortably with all sorts of more celebrated cases, from Dean Milk v. Madison in 1951 (involving protectionism) to Griswold v. Connecticut in 1965 (the privacy ruling later used against Robert Bork in his ugly confirmation hearing).

Elsewhere, as Bernstein recounts, advocates for African-Americans’ and women’s rights often made use of freedom of contract as a way to strike down laws limiting those groups’ economic freedom. Freedom of contract was a powerful weapon for dissolving the legal rules that, unsurprisingly, tended to work against those excluded from legislative power. Economic freedom, far from being a tool of the big bosses, was an important way for the underdogs to gain the freedom to compete, and to undermine the legal support that was essential to making Jim Crow and related laws work.

This becomes particularly clear when Bernstein contrasts Lochner with Plessy v. Ferguson, decided nine years earlier. In Plessy, the Supreme Court, with regard to Louisiana’s segregation law, did precisely what Lochner’s critics said it should have done with the New York baking law: it deferred to the legislature’s judgment that legal segregation was acceptable despite constitutional arguments to the contrary. (Homer Plessy’s lawyers, in fact, thought they had a strong argument that state laws mandating segregation interfered with freedom of contract between railroads and their customers. If the Court had followed Lochner’s approach, they might have won, resulting in a devastating setback to the Jim Crow legal regime.)

As Bernstein notes, “The long-standing myth of a wildly activist, reactionary Supreme Court imposing a grossly unpopular laissez-faire ideology on the American people on behalf of large corporate interests—with little concern for precedent, constitutional text, or individual or minority rights—is far removed from historical reality. The academics who invented the prevalent mythology likely sought, consciously or not, to justify their preferred political outcomes.”

George Orwell wrote that to control the past was to control the present, and the future. The false narrative of Lochner has controlled the past for decades, but Bernstein’s clear and incisive work may wrest that control away and move us back to the truth. And if readers recognize that much of what they have been told about Lochner is wrong, perhaps they will employ an informed skepticism toward many other things in constitutional law that “everyone knows.” Such skepticism, it seems, is entirely warranted.

About the Author: Glenn Harlan Reynolds is the Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee. He hosts InstaVision on PJTV.com.

Me:

It's amazing to me what going back to taken-for-granted texts with fresh eyes can yield. Ideological encrustation forms around the text like an impermeable shield. Conventional wisdom coats the impermeability such that the thereby herded are afraid to to dissent. Ideology and just going along feed each other, making penetration all the harder. But then comes a brave soul who strives to see things as they are or, at least, seem to be. And then, if, in that striving, reason and logic and evidence form together strongly enough, what seems impenetrable, impermeable, melts away like snow under a strong sun. This is what we have here in Bernstein's fresh reading of Lochner as Reynolds so accessibly demonstrates in his review.