It's already one of constitutional law's great comeback stories. For decades, Lochner v. New York (1905) was almost universally held to be one of the worst Supreme Court decisions of all time. Today, it is enjoying newfound respect and even admiration within conservative legal thought. In an upcoming article, "The Return of Lochner," Professors Thomas Colby and Peter J. Smith attribute Lochner's revival to the efforts of scholars and practitioners dedicated to discovering the Constitution's original meaning and insisting upon principled judicial engagement with all of its terms.
Lochner involved an 1895 law called the Bakeshop Act, which prohibited New Yorkers from working in a bakery more than 10 hours in one day or 60 hours per week and made it a criminal offense to employ a worker for more than 60 hours per week. While the law was presented as a health measure, it was in fact the product of a zealous lobbying effort on the part of large factory bakeries and their unionized staff, who sought to limit competition from recent immigrants.
The Court struck down the law. Although the Court recognized public health and safety as legitimate government ends, the state failed to show that the hours restriction had any substantial factual connection to those ends. As Justice Peckham explained:
It 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. We are justified in saying so when, from the character of the law and the subject upon which it legislates, it is apparent that the public health or welfare bears but the most remote relation to the law.
Justice Oliver Wendell Holmes Jr. penned an iconic dissent in which he asserted that "a Constitution is not intended to embody a particular economic theory" but, rather, is "made for people of fundamentally differing views." On Holmes' account, the Court had "perverted" the term "liberty" in the Fourteenth Amendment by holding it "to prevent the natural outcome of a dominant opinion." This critique was celebrated by progressive scholars, who saw Holmes' judicial restraint (grounded in moral relativism and contempt for individual rights) as the key to achieving their sweeping social aims.
It is unsurprising that left-leaning legal scholars have long condemned Lochner, drawing upon Holmes' critique. But as Colby and Smith document, Lochner was for decades equally disparaged by conservative "originalists," including Robert Bork, William Rehnquist and Antonin Scalia.
What accounts for this conservative hostility to Lochner? The originalist movement was initially driven by a perceived imperative to limit judicial discretion -- an imperative underscored by the supposed "activism" of the Warren Court, in particular its recognition and protection of rights not expressly listed in the Constitution's text. Conservative originalists invoked Lochner to discredit the Warren Court's decisions and to make the case for what amounts to knee-jerk judicial deference to the political branches in cases that do not implicate textually enumerated rights.
Progressive critics of Lochner (correctly) believed that the original meaning of the Constitution presented an obstacle to their desired social and economic reforms. They argued that the Lochner Court sinned chiefly through its fidelity to the Framers' "outdated" vision. By contrast, conservative originalists argued that both the Warren Court and the Lochner Court sinned through infidelity to the Constitution's original meaning. Whenever the Court protects unenumerated rights, they argued, it thwarts legislative majorities' constitutional entitlement to rule, as Bork put it, "for no better reason than that they are majorities."
But what if the Constitution, interpreted consistently with its original meaning, requires the federal judiciary to protect unenumerated rights? For judges to abdicate their responsibility to do so would be an act of infidelity to original meaning on par with the judicial invention of rights. When Bork famously stated that the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment were as "inkblots" to him -- that he did not know what they meant -- originalist scholars shed light upon those provisions. Scholarship by Richard Epstein, Bernard Siegan, Roger Pilon, Randy Barnett and others demonstrated that unenumerated natural rights -- including the right to make contracts -- were written into the very fabric of the Constitution. Lochner's rehabilitation was thus made possible by new developments in the field of originalism.
Colby and Smith chart this development in part by focusing on individual conservatives who have recently revisited the question of judicial enforcement of unenumerated rights and in certain cases disavowed reflexive judicial restraint. In a 2012 exchange with my colleague Paul Sherman, conservative legal scholar Ed Whelan stated that it is "quite plausible" that "the Privileges or Immunities Clause (of the Fourteenth Amendment), properly construed, does protect some substantive economic rights." Conservative columnist George Will, who in 1996 had harshly criticized Lochner, in 2011 praised David Bernstein's indispensable revisionist history of the case, Rehabilitating Lochner. More recently, in a favorable review of Terms of Engagement (written by my colleague Clark Neily), Will urged that "conservatives clamoring for judicial restraint ... are waving a banner unfurled a century ago by progressives eager to emancipate government." Finally, Republican Senator Rand Paul praised Lochner and affirmed the need for judicial protection of unenumerated natural rights during his momentous 2013 filibuster on the Senate floor.
To be sure, there is a robust debate amongst supporters of limited government over whether Lochner was correctly decided, as well as whether the judicial engagement displayed by the Lochner majority was appropriate. What is undeniable is that the Lochner decision and the concept of judicial duty embraced by the majority are gradually being understood, at least by conservatives, to rest on a much stronger theoretical ground than previously acknowledged and to provide a serious challenge to decades of reflexive judicial restraint in the economic sphere. More than a century later, Lochner may never have been more alive.
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