View Week 681 June 27, 2011 – 2
The Lochner Ness Monster
I haven’t thought about Lochner v. NY since I taught Constitutional Law at Pepperdine a very great many years ago. Of course most people have never thought about it at all, so that’s hardly astonishing, and most of those who have thought about it ,ay have done so in the wrong way and drawn the wrong conclusions. David Bernstein has a new book entitled Rehabilitating Lochner, and that wouldn’t get me thinking about it either, if Glenn Reynolds hadn’t written a review in Commentary (link). Reynolds writes not as Instapundit, but as Glenn Harlan Reynolds, Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee. If all his lectures are as interesting as this review, he must be popular with the intellectually gifted among the UT law students. Grinds boning for simple answers may have a different view.
In the conventional law school wisdom, Lochner is paired with Plessy v. Ferguson (decided a decade before Lochner) as one of the cases limiting civil rights, and it is generally taught that way, but that’s not the real story – or at least it is not the story as I learned it from Professor Ken Cole at the University of Washington, and it’s not how I taught it in my Pepperdine courses for pre-law majors, possibly to their detriment when they got to law school.
Reynolds says
In my experience, law students exposed to Lochner for the first time, without being told that they’re supposed to hate it, tend to find it pretty reasonable: state passes law that impinges on individual freedom, court finds alleged purpose unpersuasive, strikes law to uphold freedom. That was pretty much the story of federal courts and the Constitution in the 20th century, and if Lochner had been at all unusual, that was only because it came so early on in the process. In methodology and approach, Lochner fits comfortably with all sorts of more celebrated cases, from Dean Milk v. Madison in 1951 (involving protectionism) to Griswold v. Connecticut in 1965 (the privacy ruling later used against Robert Bork in his ugly confirmation hearing).
Elsewhere, as Bernstein recounts, advocates for African-Americans’ and women’s rights often made use of freedom of contract as a way to strike down laws limiting those groups’ economic freedom. Freedom of contract was a powerful weapon for dissolving the legal rules that, unsurprisingly, tended to work against those excluded from legislative power. Economic freedom, far from being a tool of the big bosses, was an important way for the underdogs to gain the freedom to compete, and to undermine the legal support that was essential to making Jim Crow and related laws work.
There’s considerably more to think about in this review. I don’t expect lawyers in general, much less the general public, to read Bernstein’s book – I hope to get to it, but I have an enormous stack ahead of it – but I think any lawyer interested in law and the constitution would find it more than worth his time to find Professor Reynolds’ Commentary review of Bernstein’s book. Freedom of contract has been neglected lately. Sometimes rather obscure legal concepts can be very important in trying to recover a proper balance of individual, States, and Federal rights and powers. This is one of those legal points worth contemplating.
“The Lochner Ness Monster” a review by Glenn Reynolds. Commentary June 2011
