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George Mason University

SCHOOL of LAW

Lochner’s Legacy’s Legacy

David E. Bernstein

03-15

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* Visiting Professor, Georgetown U niversi ty Law Center; Professor, George Maso n Univ ersity

School of Law. E-mail: dbernste@gm u.edu. 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.”


David E. Bernstein*

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 com petence ); 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


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 p rimary p roblem with

Lochner was the Justices’ belief that market ordering under the common law was

part of nature rather than a legal co nstruct, and formed a baseline from which

to measure the constitutionality of state action, rendering redistributive

regulatio ns unco nstitutiona l.

Lochner ’s Legacy’s understanding of the Lochner era has been widely accepted

in legal circles, in cluding by four cu rrent Sup reme 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 curre nt unde rstanding of Lochner

is how little evid ence Su nstein provides for his historical claims. Beyond Lochner

itself, the article cites only seven cases out of hund reds of relev ant Lochner era

cases, and disc usses only two of them in any deta il. Even the discu ssion of these

two cases is tendentious. Sunstein’s argument has nevertheless thrived because

until now no o ne has systema tically scrutinized its historical underpinn ings.

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

mistaken ly treated government inaction as the “baseline” to determine the

constitution ality of govern ment reg ulations. Th is Article argues that all three of

these propos itions are de monstra bly incorre ct. Lochner ’s Legacy provides a

particula rly telling exam ple of the d anger o f applying an ideo logical co nstruct to

constitutional history for presentist purposes, while ignoring or neglecting

contrary evidence

The ghost of Lochner v. New York 1 haunts American con stitutional 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

Bernstein

(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 Mean ing and

Origins of Laissez-Faire Constitutionalism , 3 L. & H IST. 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 Lochner ism 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 Lochner ian 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 State s 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

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. Conserva tive Justices acc use their collea gues 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 Cou rt uses the Commerce Clause7 or the Eleve nth

Amendment8 to invalidate federa l laws. On issues that divide the Court along

atypical lines, such as the scope of the dormant commerce clause, ecumenical

groups of dissenting Justices acc use their collea gues of Lochnerizing when the

majority invalidates governme nt regulations.9


10 Lochner , 198 U.S. at 75 (Holmes, J., dissenting) (criticizing the Lochner majori ty 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 D ISTRUST: 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 ecis ions

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

W ASH. 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. H IST. SOC’Y Y.B. 53, 69-70 [hereinafter,

Urofsky, M yth and R eality ]; Charles W arren, The Progressiveness o f the Uni ted S ta tes Supreme

Court , 13 COLUM. L. REV. 294, 2 95 (19 13); cf. Melvin I. Urofs ky, State Courts and Protectiv e

Legislation During the Progressive Era: A Reevaluation, 72 J. AM. H IST. 63, 64 (1985) [hereina fter,

U rofsky, 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

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 e xceeded its

legitimate judicia l role by reading the right of “liberty of contract” into the

Fourteen th 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

Bernstein

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 W ARREN, THE

SUPREME COURT IN UNITED STATES H ISTORY 463 (1922 ) (conten ding th at 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 M INIMUM W AGE LEGISLATION 148, 153 (National C o ns u m ers’ 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 in dividual’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 M INIMUM W AGES

AND M AXIMUM 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., dis senting)

(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 whic h 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 th e 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. & H IST. REV. 249, 250

(1987) (Lochner “ is st i ll shorthand in consti tut ional law for the worst sins of subjective judicial

activism”).

4

Justices’ personal ideological b iases.13 This unde rstanding of Lochner remained

widespread in academ ia14 until the 1987 hearings on Robert Bork’s nomination


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 distinctiv e 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 M ASON 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 M ASON L. REV. 405

(1996) (contend ing that Lochner ian 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 Lochner ian jurisprudence); see gen erally

James W. Ely, Jr., Melvill e W. Fuller, 1998 J. SUP. CT. H IST. 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 M ODERN 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.”).1 7 The C ourt was not com pletely oblivious to the criticism , howev er, and s ometim es explicit ly

distinguished i ts dec is ions f rom 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 .”); C HRISTOPHER W OLFE, THE R ISE

OF M ODERN 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 a pplaud 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

SPRING 2003 5

to the Supreme Court energized the debate over judicial activism. The

controversy related to those hearings firmly associated the traditional critique of

Lochner with conserv atives, amon g whom it rem ains domin ant.15

Critics frequently charged the Warren and Burger Courts with Lochneristic

judicial activism.1 6 With libera ls in the majority, ho wever, the C ourt and its

defenders brushed off such criticism.17 By the late 1980s, many constitutional

law scholars gre w unhapp y 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 vulne rable to being overruled as Lochnerian.19

Bernstein

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 l iberties is a modern one, not

reflected in Lochner era jurisprudence.22 Fo r c r it ic ism of the Griswold majority for Lochner ian 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 o f 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 Lochner ian 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 e ra. 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 R IGHT: A CONSTITUTIONAL H ISTORY OF

PROPERTY R IGHTS 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 M ORTON 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 H ISTORY OF OUR CONSTITUTIONAL THEORY 68-69 (1934) [hereinafter, C ORWIN ,

TWILIGHT]; Edward S. Corwin, The Supreme Court and the Fourteenth Amendment, 7 M ICH. 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 th e 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 Constit utions 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 vie w t ha t th e D ue 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

Roe was espec ially 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 Fourte enth Amen dment’s Due

Process Clause.22 The most significant of these decisions, Meyer v. Nebraska,23


correct in its due process jurisprudence, see RODNEY L. M OTT, 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

M OVEMENT 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 Lochner ism as motivated by conservative

judges seek ing to cons titutio nalize their pro-la issez -faire ideolo gical p redilectio ns is in need of any

substantial revision. See Paul Kens , Dawn of the Conservative Era , 1995 J. SUP. CT. H IST. 1; Paul

Kens, Lochner v. New York: Rehabilitated and Revised, But Still Reviled, 1997 J. SUP. CT. H IST. 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.

SPRING 2003 7

explicitly relied on the Lochner line of cases. Lib erals are particularly protective

of Griswold because if the Supreme Court eve r overrules Bowers v. Hardwick24

and articulates a right to engage in ho mosexua l sex, it will likely do so by relying

on its prior privacy rulings, as the dissenters did in Bowers .25

“Lochner remains an u nnerving pr esence,” R obert 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 Discomfo rt with the traditiona l 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 eng aged in a co herent,

albeit ideologically misguided, effort to enforce an economically libertarian vision

of the Constitution based on social contract the ory.28 Fiss concludes that

“Lochner stands for both a distinctive body of constitutional doctrine and a

distinctive conception of judicial role: One cou ld reject on e facet of Lochner and

accept the other. . . . [W]e may wish to criticize its substantive values and yet

leave unimpeac hed its conc eption of ro le.”29 Political scientist Howard Gillman,

meanwhile, contends that the Lochner era Court, relying on currents in American

ideology flowing from the Founding an d Jacksonian eras, soug ht to restrict “class

legislation,” i.e., “attempts by c ompeting classes to use p ublic pow er to gain

Bernstein

30 HOWARD G ILLMAN, THE CONSTITUTION BESIEGED: THE R ISE 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 e r a f rom a more conservative scholar, see JAMES W . ELY, JR., THE

CHIEF JUSTICESHIP OF M ELVILLE 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

i ts e lf 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 W M. & M ARY 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

unfair or unnatural advantage s over their m arket adve rsaries.” 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 revision ists, 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 Dep ression.” 31

Fiss, Gillman, Ac kerman, an d other sch olars effectively parry the conservativecritique of Roe and like-minded decisions as Lochnerian.32 These re visionistsagree that the Lochner era Justices were trying to preserve liberty, as theyunderstood it, from government encroachment. 33 The Lochner era Court, theyargue, chose an appro priate role for the Court— defender of last resort offundamental rights.34 However, from a modern perspective, the Court chose thewrong rights to emphasiz e. The problem, the revisionists argue, is that theJustices did not und erstand that so cial and eco nomic changes brought about bythe Industrial Revolution rende red anach ronistic their vision of liberty.35 This


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 i n a misgu ided 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. & H IST. 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, despit e 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 (d iscussing 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).

SPRING 2003 9

honest error should not inhibit modern judges from using available constitutionaltools to promote a progressive agenda that suits contemporary society’s needs.36

In his 1987 Columbia Law Review article, “Lochner’s Legacy,” 37 Cass Sunste inprovides a more critical revisionist perspective on Lochner, albeit to similarideological ends. Lochner’s Legacy predates the wo rk of Ackerman, Fiss , andGillman, and Sunste in deserves a great deal o f credit for mo ving scholarlydiscussion of Lochner beyond the trite “receiv ed wisdom ” that “Lochner waswrong because it involved ‘judicial activism’; an illegitimate intrusion by thecourts into a realm properly reserved to the political branches o f governme nt.”38

Sunstein presents an alternative approach39 that he claims “fits the history at

least as well” but has “dra matically differen t 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 na ture rather than a legal constru ct,”

and formed a baseline from which to measure the constitutionality of state action,

rendering redistributive regula tions uncon stitutional.41 As discussed in greater

detail below,42 Sunstein sup ports 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

Bernstein

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 Lochner ian 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 Liber ty: Mr. Justice Souter and the

Mistranslation of the Due Process Clause, 41WM. & M ARY L. REV. 3, 41 (1999) (noting th at West

Coast Hotel did not overrule Lochner or any liberty of occupation case not involving a n at te m pt 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., M ARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY

OF C IVIL 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. F iss, 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 Const itutional

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 C IVIL 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 th e

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 Legit imacy of

Judicial Review in Speech Cases , in THE PRICE W E 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 M ARKETS AND SOCIAL JUSTICE 229 (1997) [hereina fter,

SUNSTEIN , FREE M ARKETS]; (“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

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 understa nding of Lochner saves

Roe v. Wade and other Warren and Burger Court decisions from the charge that

they are Lochner’s illegitimate offspring. Sun stein also cleverly ar gues 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 o f speech protected b y the First

Amend ment. 48 In addition to Buckley, Lochner’s Legacy also criticizes, among


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 argumen ts 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 W IS. L. REV. 767, 782-86;

Alan Jones, Thomas M. Cooley and “Laissez-Faire Constitutionalism”: A Reconsideration, 53 J. AM.

H IST. 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. H IST. SOC’Y Y.B. 20, 24-26

[hereinafter, McC urdy, Roots ]; Charles W. McCurdy, Justi ce Field and the Jurisprudence of

Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism , 1863-1897,

61 J. AM. H IST. 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 W HITE, THE CONSTITUTION AND THE NEW DEAL 21-29

(2000) (review ing the revisionist literature from a historian’s pers pective).

SPRING 2003 11

other cases, Washin gton v. D avis49 for requiring discriminatory intent before

courts may deem a law with discriminatory effects on minorities a violation of the

Equal Protection Clause, and Regen ts of the Un iversity of California v. Bakke,50

for outlawing racial quotas in public universities. Sunstein conten ds 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

inappro priate baseline that accepts existing distributions of wealth as natural and

prelegal. These decisions, ac cording to Sunstein, imp licitly fail to recognize that

the status quo is itself a product of legal and po litical choices.51

Lochner’s Legacy is a short article—at least by law review standards—and

Sunstein devotes only ten pages o f 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 co nstitutional 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.

Bernstein

54 Sunste in is the m ost-c i ted law professor in the United States. Brian Leiter, Most Cited Law

Faculty, <http://www.utexas.edu/law/faculty/bleiter/rankings/most_cited.html> (visited July 22,

2002).55 E.g., CASS R. SUNSTEIN AFTER THE R IGHTS REVOLUTION 19-20, 147-48, 211 (1990) [hereina fter,

SUNSTEIN , R IGHTS REVOLUTION]; SUNSTEIN , D EMOCRACY, supra note 48, at 97; SUNSTEIN , FREE

M ARKETS, supra note 48, at 229-30.56 E.g., Cass R. S unstein, The B eard T hesis an d Fran klin Roo sevelt , 56 GEO. W ASH. L. REV. 114,

120-22 (1987); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1580 (19 88);

Cass R. Su nste in, Free Speech Now, 59 U. CHI. L. REV. 255, 264-65 (1992) [hereinafter, Sunstein,

Free Speech]; Cass R. Sunstein, Legal I nterfere nce with Private Preferences, 53 U. CHI. L. REV. 1129,

1129-30 (1986); Cass R. Suns tein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689,

1701 (1984) [h ereinafter, Sun stein, Naked Preferences]; Cass R . Sunstein, Political Equality and

Unintended Consequences , 94 COLUM. L. REV. 1390, 1397-98 ( 1994); C ass R. Su nstein, Standing and

the Privatization of American Law , 88 COLUM. L. REV. 1432, 1435 n.1 2 (1988).57 SUNSTEIN , supra note 39.5 8 GEOFFREY R. STONE, ET AL., CONSTITUTIONAL LAW 721, 723 (4th ed. 2002). For another

casebook that adopts Sunstein’s theory of Lochner, see DANIEL A. FARBER, ET AL., CONSTITUTIONAL

LAW: THEMES FOR THE CONSTITUTION’S THIRD CENTURY 425 (2d ed. 199 8).59 ACKERMAN , supra note 2, at 365 (contending that to the Lochner Court, “the market operated

as a prepolitical baseline establishing basic entitlements” and citing Sunste in); G ILLMAN, supra note

30, at 227 n.12 (citing Sunstein’s work as a precursor to his own). Similarly, one of the best

revisionist articles on Lochner , written by a prominent legal historian, gratu itous ly states in a f ootnote

that the author is not denying Sunstein’s point th at Lochner ians “shared the goal of preventing the

emergent regulatory s ta te f ro m becoming a redistributionist state.” Stephen A. Siegel, Lochner Era

Jurisprudence and the American Constitutional Tradition, 70 N.C .L. REV. 1, 21 n .90 (19 91); cf.

FRIEDMAN , supra note 33, at 19 (arguing that the Court’s opinion in Coppage v. Kansas, 236 U.S. 1

(1915), was “designed to freeze the status quo—to sanctify if not the distribution of wealth and

income itself, then at least the structures that led to that distribution”).

Desp ite Gillman’s acknowledgment of Su nstein, and the much greater detail of Gillman’s historical

work on Lochner , a reviewer criticized Gillman for being insufficiently Sunsteinian. See C. Ian

Anderson, Book Review (reviewing The Constitution Besieged), 92 MICH. L. REV. 1438, 1441 (1994)

(“Unf ortunately, Gillman never adequately follows up on the free-market implications of these

statem ents or their affinity with views expressed by other commentators [namely, Sunstein] that the

Lochner-era Justices’ reliance on the com mon law and affir manc e of the sta tus quo w as in effe ct a

form of laissez-faire c onstitutionalism.”). 60 See supra notes 4 to 9, and a ccom panying te xt.

12

The article has bee n cited in law rev iews well over three hundr ed times, mo stly

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

especia lly prominent in The Partial Constitution,57 which has also been cited

hundreds of times. Sunstein’s ideas ab out 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:


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 D IRECTORY 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.

SPRING 2003 13

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 rig hts and con tractual auton omy)

as paramount, while regarding congressional legislation to abroga te the

common law on these economic matters as constitutiona lly suspect. See,

e.g., Adkins v . Children ’s Hospita l of D.C ., 261 U.S. 525, 557 (1923)

(finding abrogatio n of comm on-law freed om to contract for any wage an

unconstitutional “compulso ry exaction” ); see gene rally 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 pow er 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 Prepa id Postsecond ary Educa tion Expense

Bd.,62 meanwhile, Justice Breyer, dissenting, joined by Justices Stevens, Souter,

and Ginsburg , implicitly adop ted Sunstein’s a rgument 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 renderin g immu table this

one common-law doctrine (sovereign im munity), Seminole Tribe threatens the

Nation’s ability to enact economic legislation needed for the future in much the

way that Lochner v. N ew York threatened the Nation’s a bility to enact social

legislation over 90 ye ars ago.” 63 Justice Scalia, speaking fo r 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 S pencer’s Social Statics,’ was that it sought to impose a particular

econom ic philosop hy upon the Constitution.” 65

Bernstein

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 th at 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); A dkin 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

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 governm ent from alterin g commo n law entitlements or patterns of wealth

distribution.

What is remarkab le about Lochner’s Legacy’s massive influence is ho w little

evidence Sunstein provides for his historical thesis. Other than Lochner itself,

Sunstein cites only seven of the hundre ds of relevan t 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 inva lidating 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, an d he interpre ts that material in a m isleading way. 71

Some readers might question whether a lengthy critique of Su nstein’s accountof Lochner is worthwhile. After all, they might argue, Sunstein only usesLochner to make a broader theoretical point, that constitutional interpretationshould not rely on “government inaction” or “existing common law distributionsof wealth” as a baseline. The value of this important contribution to constitutionaltheory does not se em to dep end on wh ether Sunstein ’s interpretation of Lochneris correct.

There are two persuasive responses. First, Sunstein purports to present anaccurate interpretation of the history of the Lochner era,72 and both judges andlegal scholars hav e accepte d his claims at fac e value. Given the importance ofLochner in modern constitutional debate,73 correcting Sunstein’s erro rs isworthwhile. Second , Sunstein’s critiqu e of Lochner is crucial to winningacceptance for his argument that modern “conservative” constitutional decisionssuch as Buckley v. Valeo should be condemned because they use status quodistributions as a baseline. The obvious difficulty with this thesis is that theSupreme Court has used the status quo as a baseline thro ughout Am erican history,


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 A m e nd m ent 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 Lochner ian 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. & H IST. 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.4 29 (1990) (noting that

Sunstein’s theory is an application of the Legal Realist critique of the private law system). For a

SPRING 2003 15

and to a large degree the Constitution seems to mandate th is.74 Sunsteinacknowledges that “in some cases it is hard to dispute that understandings likethose reflected in the common law or the status quo are the appropriatebaseline.” 75 The Takings and Contracts clauses, for example, assume status quodistributions as a baseline. Sunstein adm its that it would be difficult “to abandonthose baselines alto gether without reading the contracts and takings clauses outof the Con stitution.”76

Sunstein uses Lochner as a rhetorical means out of this difficulty, byhypothesizing that the use of common law and anti-redistributive baselinesbecame formalized, ossified, and inflexible during the Lochner era. The unique,defining sin of Lochner, Sunstein claims, was that it used common lawdistributions as a rigid baseline not because of interpretive convention, butbecause the Justices do gmatically belie ved that co mmon law was natural,prepolitica l, and immu table. The Court, according to Sunstein, foolishly refusedto heed criticism from Progressives and their Realist successors. They urged theCourt to stop relying o n commo n law norm s to judge the constitutionali ty oflegislation designed to ameliorate the co nditions of workers.

Thus, Sunstein implicitly links Lochner era constitution alism to equa llydiscredited Langdellian common law formalism . Although this linka ge ishistorically inaccurate,77 Sunstein is following a longstanding tradition that datesback to Progressive era critics o f Lochnerian jurisprudence. Like Sunstein,Progressives, Realists, and their successors combined critiques of private lawconceptualism and aggressive judicial review—both of which developed in stateand federal co urts in the secon d half of the nine teenth century— into a single“assault on formalism .”78 Sunstein then takes the analysis a step further. He links

Bernstein

modern version of this crit ique that Sunstein l ikely 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 e lement 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 purs uit of equality, which are discussed in some detail in The

Partial Constitution and Democracy and the Problem o f Free Speech.80 W HITE, 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

both Lochner and Langdell to modern constitutional d ecisions that p urported lyrepeat the mistakes of Lochner. Sunstein argues, for example, that the libertarianbaseline of First Amendment and Fourteenth Amend ment jurispr udence sh ouldbe abando ned as Lochnerian.79

Sunstein’s use of historical analysis for blatant presentist purposes leavesLochner’s Legacy vulnerable to the charge that, as Theodo re White suggests, itis “a sophisticated form of history as special pleading, in which historical data areselectively employed for the purposes of supporting contemporary legalarguments.” 80 Yet Sunstein’s argument has thrived because no one ha s carefullyscrutinized its histo rical underp innings— until now. Th is Article critiques threemajor historical claims Lochner’s Legacy makes about the Lochner era: (1) thatthe Lochner era Supreme Court understood the common law “to be part of naturerather than a legal construct”; (2) that the Lochner era Court sought to preservewhat it saw as the “natura l,” “status quo” distribution o f wealth again stredistributive regulations; and (3) that the ab andonm ent of Lochner in West CoastHotel v. Parrish 81 resulted from the Supreme Court’s recognition that the problemwith Lochner and its progeny wa s that the Cou rt in those dec isions mistaken lytreated government inaction as the “baseline” to determine th e constitutiona lityof governm ent regulation s. This Article shows that all three of these propositionsare incorre ct.

Before this Article pro ceeds to its critiq ue of Lochner’s Legacy, i t 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 p raise for being sufficien tly cautious abo ut his thesis

to acknowledge potential weaknesses. On the other hand, accepting Sunstein’s

caveats at face value largely undermine s Lochner’s Legacy’s histor ical thesis.

For example, S unstein states that “whether there was a [n unconstitutio nal]

departure from the requirement of neutrality . . . depended on whether the

governm ent had altere d the com mon law d istribution of entitlem ents.”82 But he

then conced es in a footno te that redistribution through taxation was permissible,

so the Lochner Court did not always object to redistribution.83 Rather, the Court


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). Legislat ion direct ly benefit t ing 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 W ELFARE 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

SPRING 2003 17

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 oppositio n to legislation that either arbitrarily bene fits

a particular special interest, or that puts unfair bur dens on p articular individ uals

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 comfortab ly with

the broade r hostility to redistrib ution.” 85 Yet the reader just le arned from Sunstein

that the Court was not broadly ho stile to redistribution, as evid enced b y its

tolerance of “poor la ws,” that, as Sun stein acknowledges in a footnote,86 have far

clearer and more progressive redistributive consequences than minimum wage and

maximum hours law s.87

Bernstein

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 com mon-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 , bu t was no t dependen t 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 la w 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 rsim plifies 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

Sunstein also creates ambiguity when he suggests that the Court used commonlaw as the baseline from which to judge the constitutionality of governmentregulations.88 In a footnote, Sunstein partially recants, explaining that “[n]otevery commo n law right was, b y virtue of its status as such, immunized fromcollective control. Marginal and no t-so-marginal a djustments w ere perm issible.” 89

Further confusion arises around Sunstein’s claim that during the Lochner era “thepolice power could no t be used to help those unable to p rotect themse lves in themarketpla ce.”90 He then concedes in a footnote that the scope of the police powerwas in fact contestab le and contested, and that it perhap s could be used to help theneedy. 91

The point here is not to nitpick or to be petty, but to note that Sun stein’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 fo r suggesting that the Court co nsistently used common

law rules as a base line in making c onstitutional de terminations, S unstein or his

defender s can rebut the se criticisms with the footnoted caveats.

Sunstein’s later work resolve s this problem , however. S unstein, app arentlymore confident ab out Lochner’s Legacy’s understanding of the Lochnerera—which is understandable given its widespread acceptance amongconstitutional law scholars—co nsistently states that Lochnerian jurisprudenceinvolved protecting what the Court sa w as “prepolitical” common lawdistributions of wealth,92 and rarely notes any caveats, even in footnotes. 93


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. P eckham and his colleagues of the doctrine of liberty of contract to stop the states fromregulating wages and other working conditions was a logical deduction from the e xisting commonlaw.”); Kainen , supra note 3, at 89 (contending that the Lochner Court relied on “an idealized visionof the common law of property and contract”). In 1908, Roscoe Pound criticized courts for relyingon natural law doctrines which led them to “try statutes by the measure of common law doctrinesrather then [sic] by the C onsti tution.” 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, andpossession of property associated with ‘laissez-faire’ systems and captured in the common law of thelate nineteenth cen tury.” Sunstein, supra note 37, at 882 n.49. M oreover, Sunstein feels obligatedto explain why the Court upheld workers’ compensation laws and the destruction of diseased trees thatwere not creating a nuisance, both policies that abrogated comm on law rules. See Sunstein, supranote 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 rulesbut the system of Anglo-American liberty. As discussed elsewhere in this Article, Sunstein’sconception of the “com mon law ” as a set of formal rules was influenced by decades of critiques ofthe Lochner era Court that l inked Langdellian common law formalism with the Court’s Lochner ianconstitutional 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

Moreover, legal scholars who favorably cite Lochner’s Legacy and its progenyrely on the broad assertions in the text, no t the caveats in the notes. W ithSunstein’s implicit and ex plicit assent, 94 Lochner’s Legacy has c ome to stand forthe proposition that the Lochner era Court constitutionalized the common law andpreexisting distributions of wealth. Therefore, this Article will continue itscritique of Lochner’s Legacy based on the text and not the footnoted caveats. Thecriticisms this Article will offer, of course, will be independent of and far moredetailed 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 commonlaw. Lochner’s Legacy cla ims that during the Lochner era “[m]arket orderingunder the common law was understood to be a part of nature rather than a legalconstruct.” 95 The phrase “co mmon law ” is ambiguous, and could refer to eitherLangdellian common law rules, i.e., the specific rules of the late 19th centurycommon law, or to the general system of Anglo-American rights and liberties.Sunstein is clearly referring to specific commo n law rules.96 These rulesemphasized “freedom of contract, fau lt as the basis for to rt liability, and simp lefull ownership with freedom of alienation as the normal fo rm of prop erty.”97

Contrary to Sunstein’s cla im, the Supre me Cou rt consistently recognized thecontingent nature of common law rules. For example, just seven years beforeLochner, in Holden v. Hardy—an opinion written by one member of the Lochnermajority and joined by another— the Court w rote that “the co nstitution of theUnited States, which is necessarily and to a large extent inflexible, andexceedin gly difficult of amend ment, should not be so construed as to deprive thestates of the power to so amend their laws as to make them conform to the wishes

Bernstein

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 296102 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 fe llow 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. 6 28 (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

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 newrelations between employers and em ployees, as they arise.” 99 Two yea rs later, inan opinion written by Lochner author Ru fus Peckha m, the Cou rt upheld a sta tecourt ruling requir ing track connections at an intersection of railroad s.100 TheCourt acknowledged that “at commo n law the cou rts would be without pow er tomake such an order as was made in this case by the state court,” but the regulationwas constitutionally proper because it amounted to “a fair, reasonable, andapprop riate 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 [com mon law] p rinciples in

accord with its conceptions of public po licy.”104 In 1927, at the very peak of the

Lochner era, the Co urt 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


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 traditionalarticulations 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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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 o f liability on railroad s for dama ge 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 contra ct out of this

liability;109 fining of common carriers for failing to exp editiously 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 c utting of timber on sta te lands;112 imposition o f 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 alcoho lic beverag es 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 Suprem e Court ca ses that upheld land use reg ulations not inten ded to

remedy common law vio lations,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

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120 Id. at 279. Sunstein briefly discusses Miller, using it as evidence that the Court was abandoningcommon law base lines in cer tain related areas of law even before West Coast Hotel . Sunstein, supranote 37, at 881. However, it is difficult to reconcile Miller with Sunstein’s thesis, as the case wasdecided only five years after Adkins, with essentially the same lineup of Justices, and at the peak ofthe 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 legalscholars. See, e.g., Kainen, supra note 3, at 96-97 (discussing Ives as a paradigmatic exam ple ofLochner era jurisprudence, without noting that other state courts and the United States Suprem e Courtrejected its reasoning). Ives was soon overturned as a matter of state constitutional law byconstitutional 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 rejectedIves, see infra. See gen erally David W. Park, “Compensation or Confiscation?” Workm en’sCompen sation and Legal Progressivism, 1898-1917, at 44-45, 576 (Ph.D. diss. U. Wisc. 2000) (callingIves (and Lochner) aberrational, and noting that between 1911 and 1917, all courts of las t resort, w iththe exception of the New York Court of Appeals in Ives, upheld challenged workers’ comp ensationlaws).

John Witt contends Ives had a profound influence on the structure of w orker’s compensa tion lawin its formative years in the 1900s, with the laws’ drafters attempting to create moderate laws thatcould be distinguished from the law at issue in Ives. Appa rently, advo cates of th e laws fea red that s tatecourts would rely on Ives to hold workers’ com pensatio n laws u nconstitu tional und er stateconstitutions. John W itt, The Passion of William Werner (unpublished m anuscr ipt on file w ithauthor–chapter 6 of forthcom ing book, The Accidental Republic). Rega rdles s , i t soon becameapparent that conc ern that Ives would determine the constitutionality of workers’ compensationnationwide, o r 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 sufferedby railroad workers, but the Court did so on Commerce Clause, not Lochner ian, grounds. TheEmployers’ Liability Cases, 207 U.S. 463 (1908). Indeed, the Court suggested in dictum that the DueProcess Clause likely was not a barrier to such legislation. Id. at 503-04 (“We deem it unnecessaryto pass up on the m erits of the contentions concerning the alleged repugnancy of the statute, if regardedas otherwise valid, to the Due Process Clause of the 5th Amendment to the Constitution, because theact 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 classifiedsteam 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).

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governm ent’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 comm on law rights an d duties with fed eral 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 Appe als’

infamous decision in Ives v. South Buffalo R.R.,121 the Suprem e Court ro utinely

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


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.

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extinguishment of ‘core’ common law rights was permissible only if the

legislature furnished an a dequate a lternative rem edy.” 124 In a parenthetical, he

describes White as “upholding workers’ compen sation in part beca use of quid pro

quo.”125

This is simply wrong . White did not say this, and, as we shall soon see,126 twoyears later the Court explicitly rejected the argument that the constitutionality ofworkmen ’s compensation rested on quid pro quo. The White opinion raised thehypothetical issue of whether it would be constitutional for a state to “suddenlyset aside all common-law rules respecting liability as between employer andemplo yee, without prov iding a reaso nably just subs titute.”127 The Court statedthat such a rule might be unconstitutional, but not because the common law wasa prepolitica l natural baselin e. Rather, White reasoned that because the employersand employee s of New Y ork State ex pended their capital, human and otherwise,expecting a certain type of system to be in place, abolishing all common lawactions that might be so disruptive as to violate due process. 128 However, theCourt concluded that “[n]o such question is here presented, and we intimate noopinion upon it.”129

The rest of the White opinion shows that the Court did not see the common lawas natural and prepolitical, but as manmade and mutable. White discussed atlength whether workers’ compensation laws comport with natural justice,130

whether they are reasonable,131 and whethe r they violate the F ourteenthAmendment right of freedo m of contra ct.132 By contras t, the Court dism issed ina few contem ptuous sente nces the argu ment that the law was uncon stitutional

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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.

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because it changed common law entitlements b y creating liability witho ut fault.The Court wrote that common law rules governing relations between employersand employees may be altered “by legislation in the public interest.” “Noperson,” the Court declared, “has a vested interest in any rule of law, entitling himto insist that it shall rema in unchange d for his ben efit.”133

Indeed, contrary to S unstein’s claims that the Lochner era Court saw common

law rights as natural and prelegal, the White opinion exhibited an acu te awareness

that commo n law rights are histo rically contingent an d legislatively mu table. The

Court explained that “[t]he comm on law base s the emplo yer’s liability for injuries

to the employee upon the ground of negligence; but negligence is merely the

disregard of some d uty 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 ru le and the assu mption of risk doctrine, b oth

of which helpe d spawne d the worke rs’ compe nsation mo vement 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, an d employers’

common law defenses were abo lished. Unlike earlier statuto ry 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 uncon stitutional beca use it was nove l and did not follow common law

norms.138 The ma jority explaine d that:

Novelty is not a constitutional objection, since underconstitutional forms of government each state may have alegislative body endowed with authority to change the law. Inwhat respec ts it shall be changed, and to what extent, is in themain confided to the several states ; and it is to be presumedthat their Legislatures, being chosen by the people, understand


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. a t 420. However , t he Cour t a t t h is 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 Pitn ey thought that

Holmes’s opinion was too radical. A LEXANDER M . B ICKEL & 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 separa te 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 limite d. 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. D espite 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 on ly 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 th ese

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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and corre ctly apprec iate their needs. The states are left with awide range of legislative discretion, notwithstanding theprovisions of the Fourteenth Amendment; and their conclusionsrespecting the wisdom of their legislative acts are notreviewable by the courts. 139

While this opinion dre w dissents,140 this should not obscure the consensus on

the Court that mor e typical work ers’ comp ensation laws w ere constitutio nal.Even arch-conservative Justice James McReynolds generally acquiesced to thereplacement of common law with statutory workers’ compensation. In 1924 hewrote, “Withou t doubt, Co ngress has p ower to alter, amend or revise the maritimelaw by statutes of general application embod ying its will and jud gment. Th ispower, we think, would permit enactment o f a general employers’ liability law orgeneral provisions fo r compe nsating injuries.” 141 Three years later, at the heightof the Lochner era, the Court explained in dicta that “the various Wo rkers’

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142 Louis Pizit z Dr y Goo ds C o. v. Y eldell, 274 U.S. 112, 116 (1927); see also Truax v. Corrigan, 257U.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).1 4 6 State n Is land 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 administrativeadjudication, but not from the notion that the Act itself was constitutional).

153 Dissents are noted in the footnotes.

26

Compensation Acts imposing new types of liability, are familiar examples of thelegislative creation of new rights and duties for the prevention of wrong or forsatisfying social and economic needs. Their constitutionality may not besuccessfully challenged merely because a change in the common law iseffected.” 142

More generally, after the landmark White decision the Supreme Courtconsistently upheld federal and state workers’ compensation statutes,143 includinglaws with novel features. The Court uph eld laws that req uired emp loyers to payinto a state worke rs’ compe nsation fund in stead of simp ly paying for their ownemployees’ injuries;144 permitted an employee’s recovery for disfigurem ent withno loss in earnings a bility;145 required employers to pay into a state workers’compensation fund when an employee without heirs died on the job;146 requiredthat compensation for a worker’s death be paid to the decedent’s relatives whowere citizens of, and lived in, anothe r country; 147 required payment ofcompensation to workers injured on their way to work;148 required employee s toaccept workers’ compen sation in lieu of tort remedies at their employers’election;149 and restricted the fees attorneys could cha rge in workers’compensation cases.150 In 1924, the Court upheld the federal Jones Act, whichreplaced the common law of maritime torts with a statutory scheme,151 and in 1932the Court uph eld the feder al Longsho remen’s and Harbor Worker’s CompensationAct.152

Most of the Court’s decisions upholding workers’ compensation law wereunanimous.153 Even the dissenters objected only to particular provisions ofspecific workers’ compen sation laws, not to the concept of replacing the common


154 E.g., International Stevedoring Co. v. Haverty, 272 U.S. 50 (1926) (interpreting a compens ationlaw for “seamen” to include stevedores).

155 JAMES W EINSTEIN , 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 “ W e 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 Congre ss a workers’compensation bill for employees of the federal governm ent. See 53 CONG. REC. 452 (1916) (statementof 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 thatSunste in believes th at the Co urt thoug ht that tort ru les were n atural and prepolitical, or just c ontractand property rules. First, because most of the tort rules in question involved employer-employeerelations, th ere is no c lear line diffe rentiating c hanges in tort rules fr om inf ringem ents on th e right tocontract. S econd, o f the seve n cases cited by S unstein to suppo rt his histor ical thesis, o ne of them isWhite v. New Yo rk Centra l R.R.. , a case involving the abolition of tort rules in favor of statutoryworkers’ 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 nstitu tional 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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law with a statutory sch eme. M oreover , the Court f requently interpreted theselaws broadly, expanding further statutory law at the expense of the commonlaw.154 All of this is not terribly surprising, considering that three of the mostLochnerian Justices— William H oward T aft,155 Pierce B utler,156 and GeorgeSutherland157—had each been strong supporters of workers’ compensation lawsin their pre-Court political careers.

In sum, the Lochner era Cour t did not think c ommon rights immutable, and theCourt frequently upheld laws that changed or even abolished the common law.158

As a political scientist no ted in 193 0, “comm on law rights, ho wever natur al to theEnglish judiciary, are not synonymous with the rights guaranteed by the AmericanConstitution. Countless rules that were natural law to English judges are subjectto legislative mo dification in the U nited States.” 159

To the extent that the Lochner era Court explicitly relied on com mon law norms,it almost always d id so to justify upholding government regulations,160 by finding

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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 disab ilities 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 m ake 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 o f legis lation. He believed, for

example, that only narrow Sunday laws were constitutional. T IEDEMAN , 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

that common law experience suggested that the regulations in question werewithin the scope of the police power. The Co urt did not inv alidate regula tions topreserve a commo n law laissez-faire system. Rath er, the Cour t often upheldregulations that seemed to violate liberty of contract only because the regulationswere consistent with preexistin g regulatory norms. 161 The com mon law o f tort,contract, and prop erty thus did no t drive the libertarianism of the Lochner era.Instead, the Court’s deference to the common law police power restrained theCourt’s libertarian instincts.162

II. THE COURT ALLOWED REDISTRIBUTIVE REGULATORY LEGISLATION

In Lochner’s Legacy and other writings, Su nstein argues tha t a major mistake

of the Lochner era Court was to treat existing distributions of resources as


163 CASS R. SUNSTEIN , R IGHTS 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 istributi ons of resource s as prep olitical and ju st,

and . . . invalidated democratic efforts at reform.”); SUNSTEIN , FREE M ARKETS, 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 exam ple, the Supreme Court treated the system of market

ordering, within the constraints of the common law, as i f i t were prepoli t ical 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 istributio n 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, w as 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 e r a 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

“natural,” “prelegal,” “p repolitical,”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

requireme nt.”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 C ourt was “socialist.”167 The Lochner Court, thou gh generally

Bernstein

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 obvio us 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.”).1 6 9 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 t he 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 Lochner ian 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) (invalidatinga law ban ning con tracts forb idding w orkers to jo in union s); Ada ir v. U nited 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 casesis it clear that the Court overturned the laws in question because of hostility to redistribution throughregulation, as opposed to hostility to specific types of regulations—wage controls and laws grantingspecial 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 towardlabor unions).

173 169 U.S. 36 6 (1898).

30

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 mode st point, that the C ourt sought to protect the status

quo distributions of resources, is also not viable. In particular, Sunstein claims

that “the police p ower cou ld not be use d to help th ose unable to protect

themselves in the marketpla ce.”169 He asserts that the Court constitutionalized

ancient Suprem e Court d icta oppo sing taking the p roperty “of A to give to B.” 170

If Sunstein is cor rect, the Cou rt should have consistently invalidated regulatorylaws that had real or potential redistributive conseque nces.171 With a few famousexceptions, 172 however, the Court up held such regulations. In fact, the Courtexplicitly held in Holden v. Hardy173 that legislators could impose health and


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

safety regulations to redress inequalities in bargaining power.174 Holden wasdecided seven years before Lochner, but the Lochner era Cour t consistentlyreaffirmed its holding.175 In one po st-Holden case, for examp le, the Court u phelda law that was passed because “the legislature evidently deemed the laborer atsome disadvanta ge. .and .und ertook to a meliorate his c onditions.” 176 Contrast thatholding with Sunstein’s claim that “consideration of the plight of thedisadvantaged” was considered “impermissible partisanship” during the Lochnerera.177 A 1917 Columbia Law Review note expla ined that “it is now w ellestablished that the passing of measures which tend to level the inequalities offortune is a legitimate field for legislation, and that a man may, at the expense ofhis liberty, be prevented from making contracts which are detrimental to his ownwelfare.” 178

Bernstein

179 Some o f 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 min imum 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 t erms

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 S turges & 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

The Lochner era Cour t also upheld many other “redistributive”179 state laws.These included laws forbidding the employment of children below the age ofsixteen in certain hazardous occ upations,180 prohibiting nighttime employment ofwomen in restaurants located in large cities,181 regulating the hours of labor ofwomen182 and of men in industrial occupations when overtime work waspermitted,183 regulating the wid th of entries to coal mines,184 requiring coal minesto maintain wash houses for th eir emplo yees at the request of twenty or moreworkers,185 making mining companies liable for their willful failure to furnish areasonab ly safe place for workers, 186 requiring that coal miners’ pay be based on


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 He im 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 d i ssent ing wi thout op inion f rom 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 Bre wer 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

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 employeeon discharge regardless of contrary contractual agreement, 190 requiring coalproduced by miners be weighed for payment purposes before it passes over ascreen,191 giving prefere nces to citizen s in public wo rks emplo yment, 192 regulatingthe wages and hours of wo rkers employed on public works projec ts,193 forbiddingthe payment of seamen’s wages in advance,194 regulating the timing of wages paidto employees in specified industries, 195 mandating an eight-hour day for federalworkers or employees of federal contractors,196 taxing “emigrant agents” 197 out ofbusiness,198 and limiting attorneys’ fees in Court of Claims cases involving Indianclaims.199 The vast majority of these decisions were unanimous, and, among theexceptions, almost all of the dissenting votes came from Justices Brewer andPeckham, the only two Lochner-era Justices who more or less consistently votedto restrain government power.200 The Court also ge nerally upheld antitrust laws,

Bernstein

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 c om panion 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 th e

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. C IV. RTS.-C IV. 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 W AR 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, Chris topher 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 aworker for belonging to a unions). The Court also enjoined the United Mine Workers from organizingworkers 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 UnionLabor—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 railroadunions tremendously. Howeve r, the Court saw this legislation as a comprehensive law to protectinterstate commerce from strikes and other disruption s, 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 itdecided Adair . The prounion law invalida ted in Ad air was a lso part of a b roader law , the Erd man A ct,

34

which were among the most blatantly redistributive of laws, as they were seen asaiding small businesses at the expense o f large corporations. 201

The Court, how ever, did invalidate one specific category of laws that might be

considered redistributive: laws which it believed ha d no purp ose other tha n to aid

labor unions. For example, the Court twice invalidated laws that prohibited

employers from forbidding their employee s to join labor unions. 202 Progressive


intended to brin g labor calm to the ra ilroads. See Post, supra note 16.203 E.g ., ROBERT M CCLOSKEY, 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 W ILLIAM FORBATH, THE SHAPING OF THE AMERICAN LABOR M OVEMENT (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 privi leges 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 m ay 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, p reservin 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 monop oly). 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.

SPRING 2003 35

critics of the Court have focused on these decisio ns as evincing th e Court’s

hostility to redistributive regulations that would have aided wo rkers.203

Undo ubtedly these decisions, combined with state and lower federal courtdecisions unfriendly to lab or unions, limite d the growth of organized labor.204

However, criticism of these decisions as intentionally anti-redistribution assumesthat the Justices accepted the Progressives’ view that workers were helpless andvulnerable to exploitation without union representation, that the unions were thevanguard of the working class, and that d ecisions limiting the power of unionsserved only the interests of the corpora te elite and harmed work ers.205

The Justices, however, in common with much of public opinion, saw laborunions as monopolist ic organizatio ns that threatene d the freedo m of bothindividual workers and their employers, just as monopolistic corporationsthreatened small businesses and consume rs.206 The Justices also argued thatupholding 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 primaryasset. In Coppage v. Kansas, for example, the Court invalidated a law thatprohibited employers from firing workers who joined unions. Justice Pitneywrote for the C ourt:

Bernstein

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 R ISE (IHS ed . 1957 ); HENRY HAZLITT, ECONOMICS IN ONE LESSON 140 (Arlington

House ed. 1979) ; CAMPBELL R. M CCONNELL, ECONOMICS 651 (10th ed. 1987) ; DOUGLASS C. NORTH,

GROWTH AND W ELFARE 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 sole ly, at the

expense of other workers . ALBERT REES, THE ECONOMICS OF TRADE U NIONS 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 minor ities, 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 l imited the opportunities of women

workers).209 Contem porary com menta tors of varie d ideologica l perspec tive recogn ized th is 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 necessaril y

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 adopte d.”); W ARREN, 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

The right [to liberty of contra ct] is as essential to the laborer as

to the capitalist, to the poor as to the rich; for the vast ma jority

of persons have no other honest way to begin to acquire

property, save by working for money. An interference w ith this

liberty so serious as that now under consideration, and so

disturbing of equality of right must be d eemed to be arbitrary,

unless it be sup portable a s a reasona ble 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 organiza tions.208

Beyond the union-relate d cases, at least through the 1920 s the Court ra rely

interfered with “progre ssive” redistrib utive legislation cla imed to be within the

states’ police power.209 Moreover, the Court’s decisions upholding redistributive


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 federa l i ncome

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 (1 895). See, e.g., Death of the Income Tax, LITERARY D IGEST, 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 nigh ttime 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.

Cr im. 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); c f. 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

SPRING 2003 37

regulations often did not involve “easy,” uncontroversial issues, as demonstrated

by state court pre cedents which invalidated the same types of laws upheld by the

Supreme Court.210 Congress expanded the Supreme Court’s jurisdiction in 1914

Bernstein

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 decisio ns 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 legislati on, 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 M ORTON 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

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 inv alidated 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 p ost-Wo rld War I nativism.214 Arch-Lochnerian Justice James

McReynolds wrote a sweeping op inion holding that the Due P rocess Clause

protects a wide range of freedoms, including not only the “right of the individual

to contract,” and “to engage in an y of the common o ccupations 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 conscienc e,”215 along

with “other privileges long recognized at common law as essential to the o rderly

pursuit of hap piness 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


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] th e

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 amendmen t is

the case of Pierce v. Society of Sisters. The ca se raised no chur ch-s tate 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 W ILLIAM 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

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 commo n law rules of co ntract,

property, and tort. Rather, the Court is usin g “comm on law” in the sense of the

traditional rights and liberties of the American people.217 As Robert Post no tes,

Meyer “resolutely refuses to confine that realm [of liberty] to mere matters of

econom ic exchange . This refusal is p articularly striking beca use the passa ge’s

assertions are supported only by the citation of a long string of substantive due

process decisions d ealing with spe cifically economic regulation ranging from

Lochner itself to Adkins.”218

Meyer was no anomaly. Two years la ter, 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 instr uction from public teach ers 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 educatio n of his own ch ild

without unreasona ble restrictions; the C onstitution pro tects him as well as those

who speak another tongue.” 224 Relying on the Lochner line of cases, the Court

Bernstein

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

authorit y 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

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 pre ss . . . are among the fundamental personal

rights and ‘liberties’ protected by the Due Process Clause of the Fourtee nth

Amendment from impairment by the States.” The Court ruled in favor of the state

in that case. As in the context o f econom ic regulations, Lochnerian Justices gave

a broad scope to the states’ po lice power in regulating spe ech and o ther “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, o vercame their general re luctance to invalidate state

regulations only because of the Co urt’s Lochnerian decisions.2 2 7 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 app lied against the states only because the

Court had alread y interpreted the word “lib erty” broad ly in other, mor e typically

Lochnerian, contexts. He wrote: “The general principle of free speech, it seems

to me, must be taken to be in cluded in the Fourteenth Amendment, in view of the

scope that h as been give n to the word ‘liberty’ as there use d.”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 wh ich 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 peop le and that changes may be ob tained by law ful means, an o pportunity

essential to the security of the Republic, is a fundamental principle of our

constitutional system. A statute which upon its face, and as a uthoritatively

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


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 Print ing 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 Uni ted Stat es 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.

SPRING 2003 41

Fourteen th Amend ment.”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

governm ent,”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

Fourteen th Amend ment to protect what it considered the fundamental liberties of

Americans from arbitrary or unreasonable legislation.235

IV. T HE 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 represe ntative opinio n presents

difficulties. Justice Rufus Pec kham, the au thor of Lochner, would und oubtedly

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 compro mise opinion, with much ambiguous

dicta. Even so, no one has adequately explained how Peckham and Brewer

found three additio nal 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 expla in Lochner era jurisprudence, perh aps 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

Bernstein

238 Id.239 Id.240 Id.241 Id. at 879.2 4 2 See G ILLMAN, 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

thesis that Lochner era jurisprudence was about constitutionalizing common law

rules and proh ibiting redistribu tive regulations . First, “the Court sharply limited

the category of p ermissible go vernment e nds.” 238 As Sunstein puts it, the state

could not penalize Lochner, the protagonist in the litigation, because he had

committed no “comm on law wro ng” and “re gulatory power was largely limited

to the redress of harms rec ognized a t commo n 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 m aximum ho urs law].” 240

Sunstein claims that the law “was invalidated as impermissibly partisan—what

might now be ca lled special-inte rest legislation.” 241 Sunste in is hardly alone in

reaching this conclusion (though he m ay have bee n the first to express it).242 The

only support provide d, however, is the Court’s stated suspicio n 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 he alth or welfare.” 243 The “other motive” is


legisla tion thesis interpretation of Lochner , see BERNSTEIN , supra note 87, at 4; David E. Bernstein,

Lochner, Parity, and the Chinese Laundry Cases , 41 WM. & M ARY 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 provid es 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. 4 7 1, 48 0 (1 9 02 ) (“ W e 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

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 a ttempting to aid special inte rests.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, o r 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 beca use

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 conclud ed that the law’s “re al object an d purpo se were simp ly 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 employee s.”246 Beyond the generality of w ishing 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

Bernstein

247 Peckham and Brewer were sure votes against the Lochner law, given their votes in Holden andother cases involving laws interfering with liberty of con tract in the e mploym ent conte xt. See supranote 200. Among the other three Justices in the Lochner majority, it is entirely possible that one ormore of them was sw ayed by th e belief, ex pressed by Lochner’s supporters, that th e law was a sopto the bakers’ union, which illegitimately sought to monopolize the labor market for bakers by forcingall bakeries to abide by union wo rk rules. See generally Editorial, supra note 13, at 346, 347 (“Themain effect of the decision . . . will be to stop the subterfuge by which, under the pretext of conservingthe public health, the unionists have sought to delimit the competition of non-unionists, and so toestablish 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 allowthe sanctity of any contracts which may have been made b etween the demagogu es in the Legislatureand 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, ashis 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 tedlyexercising its police power, at least w hen the law w as facially neutral. Cf. Ada ir 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 wasunconstitutional); 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 underauthority of the police power w as cons titutional). In any event, regardless of what factors may havepriva tely motivated the members of the majority, their view of legislative mot ivatio n play ed no rolein Peckham’s opinion.

248 See CORWIN , supra note 22, at 86 (“Manifestly, the Lochner Case discard s 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

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 propositionthat bakers and their employers had a right to liberty of contract. Under Holdenv. Hardy, liberty of contra ct could be infringed to protect necessitous workers orto preserve the health of either bakers or the public at large. The presumption wasin favor of liberty of contract a nd could be overc ome only if the law was a “laborlaw” needed to redress some deficiency in the bakers’ ab ility to negotiate theircontracts or a “health law,” and therefore within the police power.248 But inLochner, 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 theState.” 250 Thus, unless the hours law, w hich “interfer[ed with bakers’]independence of judgment and of action,” was intended to redress particularhealth effects of baking, it was unconstitutional as “a mere meddlesomeinterference[ ] with the rights of the in dividual.” 251

Peckham first ascertained whether baking was known to be an unhealthfulprofession. He concluded that baking was an ordinary trade, not generally known


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, Ideo logy and Counter - Ideo logy 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 ontain ed 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 “loo king 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

to be unhealth ful.252 Second, Peckham found that the available scientific evidencesuggested that baking was not an especially unhealthful profession.253 For thisconclusion , he clearly relied on—b ut, to the detriment of his reputation, did notexplicitly cite254—studies discussed in Lochner’s brief showing bakers had similarmortality 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 themaximum hours law wa s in fact a health law, the law was not a valid police power

Bernstein

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 t h er e fo r e c a m e 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);

W ILLARD L. K ING, M ELVILLE W ESTON 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).2 58 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 justif iable 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

measure, but a “mere meddlesome interference[] with the rights of theindividual,” 256 and an unc onstitutional vio lation of liberty o f contract. 257

The Lochner Court, then, was doing exactly what it purported to do: protectinga fundamenta l right to liberty of contract from what it considered arbitrarygovernment interference.258 Preserving commo n law distributio ns played no rolein the opinion. The Lochner Court’s determination that the bakers’ hours law wasnot a health law ren dered the legislative motivation behin d the law— whether itwas a “self-interested deal,” as Sunstein suggests the Court believed,259

satisfaction of arbitrary whim, sincere (albeit mistaken) belief that bakers werein special need of government protection, a desire to make bakers dependent ongovernm ent, or a desire to take a first tentative step toward maximum hours lawsfor all workers260—irrelevant. The law was unconstitutional because the Courtfound that it violated liberty o f contract with no valid police power justification,not because the Court suspected a particular illicit legislative motive, such astransferring resources from emp loyers to employees. 261

V. THE END OF THE LOCHNER ERA WAS NOT A RESULT

OF THE REJECTION OF TRADITION AL BASELINE ANALYSIS


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 fo r women. Had Just ice B rand eis n ot rec used him self, a clear m ajori ty wou ldhave voted to uphold the statute. Adkins only received five votes, a nd lost the votes of Taft andSanford, who usually voted with the Court’s Lochner ians. B randeis again recu sed h ims elf, bu t wou ldcertainly have voted with the dissenters.

264 Sutherland also pointed out that if the law actually accomplished the end of requiring anemployer to pay an employee more than s he was worth, th e law wo uld ultim ately fail to achie ve itsgoal in the long term, because em ployers cannot indefinitely pay workers more than the workerscontribute to the firm. Adkins v. Children’s H osp., 261 U.S. 52 5, 557 (1923).

SPRING 2003 47

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 su m fixed [by the minimum w age 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 co ndition there r ests upon him no peculiar

responsib ility, and therefo re, in effect, arbitrar ily shifts to his

shoulders a burden which, if it belongs to anyb ody, belo ngs 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 unequalposition with respect to bargaining power and are thusrelatively defenceless against the den ial of a living wage. . .casts a direct burd en for their sup port upo n the comm unity.What these workers lose in wages the taxpayers are calledupon to pay. . . . The community is not bound to provide whatis in effect a subsidy for unconscionable em ployers.

As Sunstein notes, West Coast Hotel is commonly thought to signify the end ofthe Lochner era. Sunstein contrasts the quoted language from Adkins and WestCoast Hotel to show that the Lochner era ended when the Court shifted fromusing government inaction as a baseline, to understanding that existingdistributions of wealth are themselves a product of government action, andtherefore should not serve as the baseline for constitutional analysis.Unfortuna tely, according to Sunstein, the Court, failed to seize o n this point totransform constitutional ju risprudenc e, instead ultima tely concludin g that thelesson of Lochner was to avoid judicial activism , especially in the e conom icrealm. For the reasons discussed below, Sunstein’s interpretation of Adkins andWest Coast Hotel is unpersuasive.

A. Adkins

Sunstein’s reliance on one sentence from Adkins as representative of an entireconstitutional era is tendentious . The quoted language from Adkins not only doesnot represent Lochner era jurisprudence as a whole,263 it is only partlyrepresentative of Adkins. Adkins suggested that the most constitutionally suspectaspect of the minimum wage law in question was that it placed an arbitrary, un fairburden on employers who should not be expected to bear the costs of supportingemployees who lacked the skills to earn a better wage.264 The Court, however,

Bernstein

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 hisconstitutional liberty of contract in the opposite direction.. . .[T]he good of society as a whole cannotbe better served than by the preservation against arbitrary restraint of the liberties of its constit uentmem bers.” Id. at 563. C hief Jus tice Taft, d issenting , though t this was an important consideration inthe majority’s ruling. See id . at 564-65 (Taft, C.J., dissenting) (“[The majority’s] conclusion seemsinfluenced by the fear that the concess ion of the p ower to im pose a m inimu m wa ge mu st carry withit 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 ofdistinction like the one unde r discussion in this case is, as the o pinion elsewh ere admits, a matt er ofdegree and pra ctical experience and not of pure logic. Certainly the wide difference betweenprescribing a minimum wage and a maximum wage could as a matter of degree and experience beeasily affirmed.”). Fear that upholding legislation purporting to benefit workers would ultimately leadto legislation harming worke rs 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 ininterstate commerce during a term of months, it may do so du ring a term of years, or indefinite ly. If itmay increase wages, much more c ertainly it m ay reduc e them . If it may establish a minimum it mayestablish a maximum .”); id. at 389 (McReynolds, J., dissenting) (“considering the doctrine nowaffirmed by a majo rity of the cou rt as estab lished, it follows as o f course th at Cong ress has power tofix 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 andm ore 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 acceptsuch labor from the person offering to sell it.”); In re Morgan, 58 P. 1071 (Colo. 1889) (“If, to protectthe health of w orkme n engag ed in these two occupations, the legislature may limit them to eight hoursper day, it may he reafter, up on the gro und tha t idleness, resulting fr om sh ort hours of labor, lead s todrunkenness and gam bling; and indus try, promoted b y longer hours, to happiness and health, enactthat workmen must labor at these occupations fourteen or sixteen hours per day.”). The AmericanFederation of Labor consistently opposed minimum wage laws for men, fearing that the “same lawmay endeavor to force men to work for a minimum wage scale.” NANCY W OLOCH, MULLER V.OREGON: A BRIEF H ISTORY W ITH 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 maximumhours laws for me n. ALICE KESSLER-HARRIS, IN PURSUIT OF EQUITY: W OMEN, M EN, AND THE QUEST

FOR ECONOMIC C ITIZENSHIP 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

also suggested that the law was arbitrary because it (1) purported to provide aminimum living wage for women, yet assigned different wages to women indifferent occupa tions, and did not take into account the disparate needs ofdifferent women;265 (2) sought to protect the rig ht to liberty of contract of both theemployers and the workers subject to the minimum wage, one of the latter ofwhom appeared as a plaintiff before the Court after losing her job when the wagelaw went into effect;266 (3) “[t]he power to fix high wages connotes, by likecourse of reason, the power to fix maximum wages”;267 and (4) women were, afterpassage of the Ninete enth Amendment, fully equal citizens, which in turn created


26 8 Justic e 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 w oman.” Quote d in ELIZABETH FAULKNER BAKER,

PROTECTIVE LABOR LEGISLATION: W ITH SPECIAL REFERENCE TO W OMEN 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 const itutions than have men. Radice v. N ew York,

264 U.S. 29 2, 293-95 (1924). By contrast, in Adkins the Court argued that women were just as

capa ble of negotia ting 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.”); J ULIE NOVKOV, CONSTITUTING

W ORKERS, PROTECTING W OMEN: 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).

SPRING 2003 49

a presumption that laws subjecting women to special disabilities or privileges areunconstitution al.268

The Court, then, noted several reasons the minimum wage law for women was

unconstitution al, 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. Ind eed, it is possib le that none of the rationales, taken

individually, wo uld have rec eived a ma jority.

B. West Coast Hotel

The language quoted by Sunstein from West Co ast 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 d id not directly co ntradict Lochner’s protection

of liberty of contra ct.271 Rather, the Court argued that liberty of contract was

merely a subset of liberty. Legislatures were permitted to abrogate it in the public

Bernstein

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 Lochner ian

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

interest, as other Sup reme Co urt preced ents during the Lochner era had shown.272

Given economic conditions during the Depression, the Court could not say it was

unreasonab le for a state legislature to try to guaran tee wome n 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 righ ts 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 a gainst a full assertion of those

rights.”274 Like the necessitous miners of Holden v. Hardy, women could not be

expected on to pro tect their own inte rests. The majority noted that the Court had

acknowledged women’s sp ecial 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 d id not violate th e Constitution . The wo men’s

rights part of the C ourt’s holding also did not de pend on a rejection o f Lochner

era jurisprude nce, beca use the opin ions the Co urt relied upon—Muller, Taft’s

dissent in Adkins, and Radice—wer e 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


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 achieve d. It is unnec essary to cite

offic ial 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 w ith 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

min imum, 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, cou ld not b e supplied for long and maintain American

standards of civilization. Without assistance from the public in som e 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 deteri oration. 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

of West Coast H otel’s rejection o f Adkins is highly question able. 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 thu s a kind of “taking” from A to B.

According to the Court, if B is needy, it is not A, but the pu blic

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 “unconscio nable 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 governm ent inaction. H ad the gov ernment no t established a welfare system,

unconscio nable employer s would no t have been able to rely on the public fisc to

subsidize their exploita tion of wom en worker s by paying them less than their

market wage.282 At least under the rationale of the West Co ast Hotel dicta quoted

Bernstein

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

by Sunstein, in the baseline world of a pure laissez-faire system, minimum wage

laws could no t logically pass constitutional muster. Precisely because the

government had acted, however, employers could no longer claim the rig ht 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 wha t 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 opportu nity

to reject traditional baseline analys is 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 ac tually

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


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) ; R ICHARD HOFSTADER, SOCIAL DARWINISM IN AMERICAN THOUGHT 5-6 (rev. ed.

1955); CLYDE E. JACOBS, LAW W RITERS AND THE COURTS: THE INFLUENCE OF THOMAS E. COOLEY,

CHRISTOPHER G. TIEDEMAN , AND JOHN F. D ILLON UPON AMERICAN CONSTITUTIONAL LAW 24 (1954);

ROBERT G. M CCLOSKEY, 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 (1 960); B ENJAMIN TWISS, LAWYERS AND THE CONSTITUTION: HOW

LAISSEZ FAIRE CAME TO THE SUPREME COURT 154 (1942); M ORTON W HITE, 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, Embra sure 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 fundam ental 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. Gre y, 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.’”);

J a m es Wilson, The Morality of Formalism , 33 UC LA L. R EV. 460 (1 985) (n oting that the Legal

SPRING 2003 53

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 a rguing that the Lochner era Court’s vision of such

rights was limited to, and coextensive with, the Langdellian common law.285

Similar understand ings of Lochnerian jurisprudence had been floating around the

legal academy for deca des, with believers in sociological jurisprudence,286 Legal

Realists,287 and Critical Legal scholars, 288 successively, attacking Lochnerian

Bernstein

Realists attacked Lochner and its progeny as formalistic).2 8 8 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 activ ity 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 Hist orical 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 ndin g of

Buckley v. Valeo as Lochner ian), 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

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


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

v iew, 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 bro ad 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

SPRING 2003 55

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 u nassailable

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’ compensa tion 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 particu lar rule of the co mmon law .”293

The Court also upheld a wide range redistributive laws, ranging from antitrust

laws intended to help sma ll proprieto rs at the expen se of large co rporation s to

estate taxes to various ameliorative labor laws. Mo reover, Su nstein’s thesis

regarding Lochner cannot explain the Supreme Court’s civil liberties decisions

of the 1920s and e arly 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 id eological c onstruct to co nstitutional history for presentist

purposes, while ignoring or neglecting contrary evidence.294

Bernstein

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

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 prec ise oppo site of Lochner. The tenor of

Lochner’s Legacy, then, was what one would expect from a leading constitutional

theorist circa 1987.

Toda y, 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 historic al 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

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