Lochner and Constitutional Continuity

Lochner and Constitutional Continuity DAVID E. BERNSTEIN* If you want to raise eyebrows at a gath­ ering of judges or legal scholars, try prais­ ing the Supreme Court’s 1905 decision in Lochner v. New York.' Lochner invalidated a state maximum-hours law for bakery workers. The Court held that the law violated the right to “liberty of contract,” a right implicit in the Fourteenth Amendment’s ban on states depriv­ ing people of liberty without “due process of law.” Lochner has since become shorthand for all manner of constitutional evils and has even had an entire discredited era of Supreme Court jurisprudence named after it. Over 100 years after their predecessors issued the deci­ sion, Supreme Court Justices of all ideologi­ cal stripes use Lochner as an epithet to hurl at their colleagues when they disapprove of a de­ cision declaring a law unconstitutional. Even Barack Obama has found occasion to publicly denounce Lochner, pairing it with the Dred Scott case as examples of egregious Supreme Court error.2 And Lochner's infamy has spread internationally, to the point where it plays an important role in debate over the Canadian constitution.3 Legal scholars across the political spec­ trum have long agreed that Lochner and other cases applying the liberty-of-contract doctrine to invalidate legislation were serious mis­ takes. This is hardly unusual. Many consti­ tutional doctrines adopted by the Supreme Court have come and gone over the last 200-plus years. But the ferocity and tenacity of the liberty-of-contract doctrine’s detrac­ tors is unique. For over 100 years, critics have argued that Lochner and its progeny did not involve ordinary constitutional errors but were egregious examples of willful judicial malfeasance. Concomitantly, jurists have long assumed that the battle between early twentieth-century proponents of liberty of contract and its Pro­ gressive detractors was decisively won by the Progressives. Both liberal and conservative constitutionaliststendto see themselves as part ofa generally consistent tradition tracing back to Progressives and New Dealers. LOCHNER AND CONSTITUTIONAL CONTINUITY 117 Kwtib’a feSfcs Exfelfcg h New Y«k afei Batotea, WW AND W ABOUND ; ____ \ UcsJpa Mea Mix tb Ifesgh airf Seep la lb Saco Boom. A STARTLING EVENING JOURNEY V ........ ..... Mere Is Mailer fct tfca Board of Health to Pvsdor Over. DREADFUL HOURS OF LABOR A GiW That Mafcsn AaUHoa for Per- • cons] Ckadlrsss InposslHe. i _ _ _ _ _ THE LABOR MEN IN REVOLT JJJxiy AeOt "71m PrerrT S» Foltow Up Xfci Gottfl XTcih Ajswdb tho Tenowsato vritb « EtiSUs Acnlnst TiseSa Efewsalco o? EZenlth oral Bsossoy. Es th» RUt«r oour attention to an ovll atilt worse and tar room dangerous to public htolth and morality, tho terribly fllthy and un­ sanitary condition of tho bake shops of Now Toth and Brooklyn and Ila eflect on tho Dahlia at largo and tho men employed In 1895, the New York legislature unanimously en­ acted the Bakeshop Act, which regulated sanitary conditions in bakeries and also prohibited individu­ als from working in bakeries for more than ten hours per day or sixty hours per week. An August 1894 ar­ ticle in the New York Press warned of the dangerous and dirty conditions in New York bakeries. The standard liberal version of constitu­ tional history has relied on broad caricatures of the relevant historical actors. The good guys, starting with early twentieth-century Progres­ sivejurists, are said to have been champions of the little guy against the powerful, whether in the form of protecting civil liberties or that of protecting the economically powerless against rapacious corporations. The liberals’ historical bad guys are the “reactionary” Justices of the Gilded Age and their successors into the early New Deal era, who are said to have substituted crass class interest or dogmatic laissez-faire ideology for constitutional principle.4 Modern conservative constitutionalists, meanwhile, though dissenters in some ways from the orthodox interpretation of Ameri­ can constitutional history, also want to see themselves as part of a seamless jurispruden­ tial tradition, and they venerate some of the same Progressive heroes as their liberal adver­ saries do. The conservatives’ preferred nar­ rative revolves around a tradition of judicial restraint based on textualism, originalism, and respect for...

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