In the penultimate scene of John Ford's The Man Who Shot Liberty Valance (1969), the reporter remarks, “When the legend becomes fact, print the legend.” David Bernstein's well-written, concise, and provocative book, Rehabilitating Lochner, is designed to debunk the legend of one of the most infamous U.S. Supreme Court decisions. The author goes into considerable detail about how liberal judges and scholars distorted the decision itself and the era named after it, as well as how they failed to give liberty of contract the credit that it deserves for serving as the basis of some of the decisions that they hold sacred. Anyone who is interested in American constitutional history or law will learn a lot from this book.
After the introduction, Bernstein explains why in 1905, Lochner was a plausible legal decision rooted not only in precedent but also in sincere beliefs about natural rights and the illegitimacy of class legislation (pp. 23–39). The law in question in Lochner was not a health regulation but rather a product of the undue influence of special interests on the legislative process. In invalidating the maximum hours law, the Court was protecting two discrete and insular minorities: nonunionized bakery employees, many of whom were immigrants, and small bakery owners, like Joseph Lochner, who employed them. Bernstein also contends that the significance of Lochner as a purportedly procapitalist decision has been overstated. From 1905 to 1937, the Court upheld most of the economic regulations that it reviewed. As he puts it, Lochner was more of a “moment” than an era (p. 49). Next, Bernstein articulates how Progressivism and its penchant for unlimited state action led to discrimination against African Americans, women, and other minorities (pp. 56–89). Finally, he shows how the idea of liberty of contract (the rights to buy and sell labor without government interference) engendered other important civil rights and liberties decisions.
The thesis that Lochner has been misunderstood and has less ignominious origins is not new (Reference GillmanGillman 1993). However, Bernstein's story about how the legend came into being will capture and keep the reader's attention. The section on how the Lochner era gained such notoriety reveals how the victors—here, the Progressives and their ideological descendants—write constitutional history. What is equally interesting is why subsequent generations came to accept uncritically the Progressives' narrative as fact. After 1937, liberal judges and scholars kept what they liked about substantive due process and developed the double standard, whereby economic liberties, unlike other fundamental rights, are subject only to minimal judicial scrutiny (pp. 103–04). According to Bernstein, Douglas, Blackmun, Gunther, and Tribe deliberately severed Lochner and its idea of liberty of contract from substantive due process to promote liberal ends (pp. 115–18). Furthermore, other justices and prominent legal academics went out of their way to distinguish Lochner from Griswold, Roe, and Casey (pp. 120–21). If that were not enough, most conservatives also condemned Lochner as judicial activism (p. 122). As such, over time, the legend became fact.
Bernstein insists that that his revisionist account is not intended to be normative (pp. 6–7), but it is hard not be curious about its normative implications. After all, we live at a moment of considerable constitutional uncertainty when settled constitutional meanings are increasingly open to challenge. Several years ago, the notion that the individual mandate renders Obamacare unconstitutional would have struck most law professors as a bad joke. Bernstein is not troubled by Lochner and the principle of liberty of contract that it represents. Indeed, the maximum hours law for bakery workers whose constitutionality was being challenged is exactly the kind of law that exceeds the legitimate authority of the state.
In arguing that liberty of contract has been misunderstood, Bernstein seems to believe that there is something intellectually dishonest and illegitimate about how certain widely accepted liberal constitutional doctrines came into being. If we only knew the truth about the lineage of the constitutional right to privacy or the beginnings of equal protection jurisprudence, then we might look at liberty of contract in a more favorable light. Thus, Bernstein has done more than rehabilitate Lochner historically and attempt to remove it from the anticanon. He has illustrated how certain constitutional understandings can rise from the dead. Sooner rather than later, liberals will have to come to terms with the reality of libertarian constitutional theory and Tea Party popular constitutionalism. In contemporary constitutional theory, what Lochner symbolizes—the normative rejection of the New Deal—is ultimately what matters. Thus, there still is something to be said for continuing to print the legend.
