Few, if any, jurists have had a more profound influence upon constitutional law than Justice Oliver Wendell Holmes, and few, if any, of Holmes' opinions have been as influential as his dissent in Lochner v. New York (1905). In an elegant, forthright essay on Dorf on Law, Professor Eric Segall draws upon Holmes' remarkable repudiation of the then-prevailing approach to judicial review to criticize what Segall regards as a modern effort to exhume Lochner: the call for judicial engagement. "Holmes was correct," Segall argues, and judicial engagement -- which stands for the proposition that there is no context, not even "normal economic regulations," in which judges should reflexively defer to the government -- is wrong.
Holmes' opinion is a rhetorical masterpiece. It is nearly unmatched for its concision and clarity of principle. And it is saturated with lies. Unpacking Holmes' three biggest lies in Lochner discloses the weakness of Segall's case against judicial engagement and reveals why his Holmesian approach to judicial review should not be embraced.
What was Lochner all about? 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. The Court struck down the law. Although the Court recognized public health and safety as legitimate government ends, it concluded that 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.
In a pithy but forceful dissent, Holmes began by asserting that the majority had decided the case "upon an economic theory which a large part of the country does not entertain." The Constitution, Holmes argued, does not "enact Mr. Herbert Spencer's Social Statics," but, rather, is "made for people of fundamentally differing views." On Holmes' account, the Court had "perverted the term 'liberty'" by holding it "to prevent the natural outcome of a dominant opinion."
Holmes' charges would be damning, were they true. But they are false, and it's important to understand why. Let's take them in turn:
1.) "This case is decided upon an economic theory which a large part of the country does not entertain."
The Court's approach in Lochner no more rested upon economic theory than the Court's approach in Yick Wo v. Hopkins, an 1886 case involving a challenge to San Francisco ordinance that required everyone who operated a wooden laundry to secure a permit. In both cases, the Court sought to distinguish legitimate from illegitimate exercises of the state's police powers by identifying the government's true ends. The Court distinguished between legitimate efforts to protect public health and safety and illegitimate efforts to further the interests of the politically powerful at the expense of the politically powerless. Neither in Yick Wo nor in Lochner did the Court strike down the challenged laws because the Court concluded that those laws would not be effective in protecting public health or safety. Rather, the Court found that the laws were not designed to protect public health or safety at all. The putative end of the ordinance challenged in Yick Wo was fire safety, but the Court scrutinized the record and determined that had enforced the law "with an evil eye and an unequal hand," granting permits to all but one white person who applied and denying a permit to every Chinese person who did so. Today, the Court identifies illegitimate ends routinely in numerous areas of law--even in the context of economic regulations challenged under the "dormant" Commerce Clause, the Privileges and Immunities Clause, and the Equal Protection Clause that discriminate against out-of-state businesses and residents of other states.
2.) "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics... [The Constitution] is made for people of fundamentally differing views."
In context, Holmes was asserting that the Constitution is compatible with the imposition of fundamentally differing views about the proper role of government. But the Constitution's structural limitations on government and its explicit protections for individual rights that precede government are designed to implement a particular, classically liberal, political philosophy. The Constitution repeatedly refers to preexisting rights, explicitly states that its list of rights is not exhaustive, and contains language connoting a conception of law according to which law is necessarily public-oriented and grounded in rational principles, not mere political will. Holmes' true targets were not the premises of Spencer, but the premises of Locke, Hamilton, and Madison.
3.) "The word 'liberty'... is perverted... when it is held to prevent the natural outcome of a dominant opinion."
On the contrary, it is emphatically the province of the judiciary to prevent the outcome of dominant opinions when they threaten individual rights, and judges are no less capable of making fact-sensitive determinations concerning legislative ends in the context of "economic" regulations than in any other context. Segall acknowledges that state judges can distinguish between regulations that serve only to distribute benefits to the politically powerful and measures that are designed to protect public health and safety. Segall even applauds Texas Supreme Court Justice Don Willet for smoking out "rent seeking" in a recent case! There is no reason to think that any particular epistemological difficulties confront federal judges. Further, given the failure of Homer Plessy, Myra Bradwell, Carrie Buck, Clarence Gideon, and countless others to secure relief from state courts, Segall's optimism that state judges can be counted upon to stand fast against deprivations of individual rights is unwarranted.
It is important to recognize that Holmes was as deferential in cases involving "personal" liberty as he was in cases concerning "economic" liberty. In the 1927 case of Buck v. Bell, the Court considered the plight of Carrie Buck, a teenager from Virginia who was committed to a state institution after becoming pregnant. The medical authorities sought to sterilize her on the grounds that she was "feebleminded" and "promiscuous." As in Lochner, when Holmes claimed that he did "not need facts" to uphold the challenged legislation, so, too, did he defer to the government's factual assertions in Buck, finding that it was reasonable for the state, in the name of public welfare, to prevent the "manifestly unfit" from continuing their kind. As it happened, Carrie Buck was neither promiscuous nor enfeebled. (Not that it would have mattered if she had been.)
I'm sure that Segall does not support the outcome in Buck. However, Segall does applaud the restraint of conservative icon Robert Bork, whose rejection of Griswold v. Connecticut (1965)--the case in which the Court invalidated a law prohibiting the use of contraceptives--helped torpedo Bork's nomination to the Supreme Court. Segall's approach, like Bork's, is out of step with decades of jurisprudence. If judges must defer to the political branches (as Segall puts it) "[a]bsent complete irrationality, or clear inconsistency with constitutional text or uncontested history," it is difficult to see how the Court could have reached some of its most widely celebrated decisions, from Brown v. Board of Education and Bolling v. Sharpe to Gideon v. Wainright to Loving v. Virginia to New York Times v. Sullivan to Griswold.
Segall is deeply concerned that an engaged judiciary will thwart democratic decisionmaking on the basis of contestable value judgments. But the government is a normative institution that claims the authority to compel obedience as a matter of right, not simply because it can force us to do so. Decisions about the propriety of particular exercises of government power necessarily involve value judgments. The question that confronts us is how we can best ensure that constitutional values are enforced. Do we have reason to believe that the political branches determinations' reliably reflect constitutional values? In a previous article, I explained why this claim cannot withstand honest scrutiny and offered a number of historical examples in which the Court, to its everlasting discredit, has deferred to assertions of government power that deprived people of their liberty, their property, their livelihoods, and even their lives.
Judicial engagement posits that constitutional values will be better enforced if judges consistently make genuine, impartial, empirically-grounded efforts to determine the truth concerning the constitutionality of the government's means and ends. Embracing judicial engagement entails rejecting Holmes' three big lies. Although the Constitution does not enact Mr. Herbert Spencer's "Social Statics," it does enact a particular view about the role of government. Not just any views about government power are compatible with the Constitution. And judges are duty-bound to enforce the Constitution against "dominant opinion[s]" when those opinions give rise to illegitimate exercises of government power.
Holmes was, if nothing else, candid in denying premises that are fundamental to any system of judicial review that serves as more than a lunacy commission for legislators. So, too, is Segall. But We the People should not accept those premises. Fortunately, we need not do so.