Republicans’ Jenga Game with the Modern Constitution Continues Apace

Thanks, Rachel, for the link!

It’s time to put conclusively to bed the myth that conservatives favor a steady-state, precedent-bound legal world, as opposed to them-there “activist” liberals. As proof, take this column from George Will, putatively a movement leader, arguing for the resurrection of a monumentally old and long-since repudiated decision: Lochner v. New York, 198 U.S. 45 (1905), which famously invalidated a New York law imposing health regulations on bakeries, based on some loose notion of the employee’s “economic freedom.”

Lochner — may it rest peacefully and undisturbed — died a violent death, the product of political pressure and one Justice’s changing opinions on the law. In life, it stood as one of the last decisions asserting, as a matter of fundamental rights drawn from basic constitutional law, the legislature’s inability to pass a law that would, in some manner, prevent individuals from freely entering into contracts of their choosing. Relying on the Lochner synthesis, a generation of Supreme Court justices struck down minimum wage laws, child labor laws, workplace safety laws and more, all in the name of “economic freedom,” or the “liberty of contract.” This phrasing, of course, was a smokescreen: it protected an employer’s right to issue abusive employment terms as much as the worker’s right to accept those terms. Who’s the real beneficiary in that relationship?

Most lawyers' take on the case.

Obviously, the worker. We should all be so fortunate as to enjoy the freedom to breathe asbestos!

Lochner also asserted an enormously powerful form of judicial review, giving the Court near-plenary authority to strike down any congressional enactment it viewed as an “unreasonable” or “unnecessary” form of regulation. Per Justice Peckham, it was apparently the Court’s function to determine whether any congressional enactment is:

A fair, reasonable and appropriate exercise of the police power of the State, or [] an unreasonable, unnecessary and arbitrary interference with the right of the individual [] to enter into those contracts in relation to labor which may seem to him appropriate.

This collapses into the Court’s right to criticize the wisdom — not the constitutionality — of state laws. Which the Lochner Court proceeded to do, saying:

We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee.

No matter what you may think of the judiciary’s power in other spheres — whether it can propound the true limits and dimensions of “personal liberty” — we can’t reasonably believe that the Court may substitute its pragmatic judgment for the legislature’s. Thanks to the Madisonian Compromise, the Constitution certainly does not create the Court into some super-legislature. Here is judicial activism in its truest form.

Which apparently George Will has no problem with, provided it’s supporting his agenda, instead of letting The Gays put on airs of equality. He comes out in defense of Lochner from a few angles. None of them hold up.

First, he claims the fact pattern I’ve described to you — a tale of corporate interests abusing underpaid workers — is all a fiction. It was really some rent scheme, you see! Maybe so; and maybe someone would’ve cared about that back in 1905. But we’ve come to accept the prevailing narrative about Lochner, and built decades of case law on that principle. That’s the strange thing about common law. We care more about what the case becomes, than what it actually was. Generations of lawyers have built Lochner into a monument to the judicially-sanctioned abuse of the poor. Who is Will to deny them their victory, written into the volumes of the U.S. Reporter for more than sixty years, based on nothing more than a hunch? We overturn decisions; not historical narratives.

Second, apparently Lochner served some valuable function as a defense against racism & sexism. If so — who cares? Both evils are still held at bay by the now-prevailing interpretation of the Fourteenth Amendment. Lochner adds no value to this area that isn’t supplied more responsibly elsewhere.

*     *     *     *     *

When Lochner died, it died for a reason. For several, in fact. First, because we realized that “economic freedom” — true laissez faire — means freedom for the rich, and crippling abuse for the poor. Left to their own devices, the robber barons of the late nineteenth and early twentieth centuries proved themselves singularly capable of becoming true despots in a way that the federal government never has. Without government intervention, these figures could leverage need and a lack of viable alternatives to create and maintain a permanent underclass, doomed to work late and die young. The law should be addressed to removing those barriers, not strengthening them.

But more importantly, Lochner died because the Court cannot guarantee the type of economic freedom it envisioned without becoming a real threat to the American system of separated powers. Lochner‘s vision of judicial review stands in stark contrast to the notion that judges should be disinterested mediators — umpires, in Chief Justice Roberts’ colorful metaphor — and suggests, instead, that extremist anti-regulatory economic policy may be dressed up as constitutionalism, and used to bring the people’s work to a grinding halt.

This is the world to which George Will — and all Republican candidates who speak so boldly about “economic freedom” — yearn to return. A world where children work because they legally can and practically must, and where having a job matters more than not dying from (or at) it. Such ill-informed and naive nostalgia deserves to be relegated once again to the dustbin of history, and its defenders sent packing, so they can laugh, call it fate, and keep on drinking.



  1. Contra Lochner, which courts now repudiate,
    Most labor rules are quite legitimate.
    The pow’rs of policing
    When welfare-increasing
    Can surely be exercised by the state.
    — Nebbia v. New York, 291 U.S. 502 (1934)

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