Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform

David E. Bernstein,
University of Chicago Press, 2011, 208 pages $45.00 

Reviewed by Jamie Fletcher

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The problem with redemption history is that its goal is immediately apparent.  In Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform,[1] Bernstein has a clear ambition: to return the case of Lochner v. New York[2] to a respected place in American constitutional history. Bernstein’s aim is to move Lochner out of what is considered the anticanon of constitutional law and toward the set of cases that makes up the jurisprudence accompanying our written Constitution.[3]  This makes the major aim of Rehabilitating Lochner immediately apparent—to persuade the reader that there are principles in Lochner that correspond with the Constitution’s meaning as understood historically and contemporarily.  Historically, Bernstein aims to show thatLochner contains the principles most acceptable to the original understanding of the Constitution.  Bernstein achieves this by identifying Lochner within the spectrum of freedom of contract jurisprudence or the ordinary understanding of the Constitution.[4]  Unique to Bernstein’s efforts, however, is how he attempts to rationalize Lochner in post-New Deal jurisprudence, laying out a blueprint for a canon of constitutional law that adequately defends individual rights within the New Deal regime.[5]  In doing this, he compares Lochner jurisprudence to the due process privacy cases championed by scholars on both sides of the aisle,[6]exposing the doctrine’s historical condemnation by liberals within economic jurisprudence[7] and conservative criticism of privacy jurisprudence.[8]  This allows Bernstein to scope out a new space within constitutional discourse for libertarians to support both Lochner and the liberty reforms associated with the New Deal.

Major problems arise for Bernstein’s book due to his obvious political ideology.  This work, despite its benefits, will always be judged by mainstream academia as a beautifully written attempt of the libertarian school to reposition a widely condemned piece of jurisprudence.  By highlighting the liberty-of-contract issues at the heart of Lochner and relying heavily on case-specific fact patterns, Bernstein ignores many of the social evils associated with the generic results ofLochner economics.[9]

This book is also an addition to a growing number of books about American constitutionalism that criticize the Supreme Court’s jurisprudence on the basis of its impairment of an individual’s economic liberties.[10]  Bernstein’s libertarianism is apparent as he attacks progressive agendas and the use of the state as a tool for wealth distribution, social control, and market alteration.[11]  Rehabilitating Lochner’s greatest shortcoming is its failure to justify its conception of American constitutional heritage and intellectual tradition, a concept that Bernstein consistently touts against progressives but fails to sufficiently explain.[12]  By sifting through the opinions, viewpoints, and outlooks of the various parties in the Lochner dispute, Bernstein’s aim is to show how the popular conception of the parties and their beliefs, desires, and intentions is a misrepresentation of the truth.[13]  As a result, the book overlooks the social injustices that would be created by a doctrine that wholeheartedly supported the principles of Lochner—putting one specific case ahead of the standard individual-against-corporation scenario at the core of modern American business.[14]

This book is divided into seven chapters that can loosely be grouped into three parts.  Part one, containing Chapters 1 and 2, aims to explain Lochner and its importance.  This section looks at the case and outlines its position within the canon of constitutional law.[15]  To achieve this, in Chapter 1, Bernstein attempts to normalize Lochner by providing the reader with Lochner’s jurisprudential foundations, downplaying its uniqueness.[16]  Putting Lochner within this framework provides the reader with a sense of continuation—not revolution—within contemporary jurisprudence.  The major flaw in this chapter is that Bernstein is inconclusive in his findings and is unable to show how the earlier jurisprudence led to Lochner.[17]  Bernstein fails to properly deal with the consequences that the different possible interpretations of economic liberties—and their position within American constitutionalism—have for his theory.[18]  It is insufficient for Bernstein to establish that Lochner was a possible result of earlier precedent; he needs to show it was the inevitable result to fit within originalist discourse.[19] In Chapter 2, Bernstein reinterprets the motives, briefs, public knowledge, commentary, and judicial ruling of Lochner.[20]  This is a well-written chapter, dealing with ample historical evidence marshaled supremely by Bernstein.[21]  Bernstein’s overall aim in part one is to refocus our attention in Lochner, moving us away from the traditional post-New Deal narrative of capitalist exploitation and toward an understanding based on class legislation, exposing the true issue in Lochner—unfair legislation.[22]  The class-legislation theory comprehends Lochner as an example of the state favoring one segment of society over another: the autonomy of bakers, but not those plying other trades, is curtailed, and, even among bakers, the effect was not uniform according to Bernstein.[23]

In part two, Bernstein, through Lochner, explains how two major issues in constitutional law—sex discrimination and racial segregation—could have been better solved through individual-rights protection rather than through the promotion of progressive values.[24]  Chapter 3 starts this process by moving the reader’s analysis of Lochner beyond its facts to the wider understanding and contribution of Lochner to constitutional law.[25]  This enterprise gives Bernstein the ability to divide scholars into four camps, past the very simple conservative–liberal divide, moving analysis into a historical framework.  The critique within this chapter is of “Progressive Sociological Jurisprudence,” a theory that, for Bernstein, hijacked both conservative and liberal agendas.[26]  This sets up Chapters 4 and 5, in which Bernstein hypothesizes about how the civil-liberties revolution would have occurred in accordance with Lochner’s reasoning.[27]  His conclusion is that the civil-liberties revolution would have been more successful than under the progressive school of thought.[28]

Moreover, in these chapters, Bernstein tries to identify progressive thought and its main tenets outside of American constitutional tradition and heritage.  As a result, in Chapters 4 and 5, Bernstein is well-placed to explain how defending individual rights and the pursuit of liberty would have created stronger protection against sexual discrimination and racial segregation.  Bernstein achieves this by establishing the unconstitutionality of the class-legislation element of Lochner,which resulted in laws that treat people unequally.[29]

In part three, Bernstein compares the constitutional doctrines at the heart of Lochner with those of modern civil-liberties jurisprudence.[30]  This section moves a great way toward explaining many of the difficulties that Lochner causes modern liberal and conservative scholars.  The aim behind Bernstein’s exposure here is to highlight the inconsistencies in conservative and liberal constitutional scholarship while highlighting the consistency of libertarian work through revisionist history.[31]  By providing a consistent theory of constitutional law, Bernstein wants to convince students of the Constitution that libertarianism is the only legitimate theory of constitutionalism.  The author, however, falls short in Chapters 6 and 7 by not adequately dealing with rebuttal arguments made by both conservative and liberal scholars who try to explain their theories in context with Lochner.[32]  Both of these arguments—the liberal distinction between the importance of social and economic liberties and the conservative belief in the commercial intentions of the framers—deserve more attention from Bernstein. These arguments, however, prove either untidy within Bernstein’s analysis or very clunky for such a lucid piece of work.

Rehabilitating Lochneris well-written and constructs a thoughtful argument, allowing its reader to engage with a different side of Lochner.  Nevertheless, the project falls short of its title.  Bernstein’s best efforts will not convince those ideologically opposed to Lochner that its theory of decision making is constitutional, politically desirable, or practical.  This book, however, will fill the scholarship gap as a reference for individuals within the modern libertarian constitutional movement that defends their most prized jurisprudence.  Lochner will remain in the anticanon of constitutional law; what Bernstein has done is provided its defenders and supporters with a detailed but lucid defense of its merits.


[1]. David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011).

[2]. 198 U.S. 45 (1905).

[3]. Bernstein, supra note 1, at 2, 3; see also J.M. Balkin & Sanford Levinson, Commentary, The Canons of Constitutional Law, 111 Harv. L. Rev. 963, 1018 (1998) (identifying Lochner as a member of the constitutional anticanon).  See generally Mark Tushnet, The Canon(s) of Constitutional Law: An Introduction, 17 Const. Comment. 187–96 (2000) (summarizing considerations in the development of a canon of constitutional law).  The term anticanon refers to a group of wrongly decided cases, including Griswold v. Connecticut, 381 U.S. 479 (1965), that is viewed as influential to modern constitutional interpretation.  Bernstein, supra note 1, at 2.

[4]. See Bernstein, supra note 1, at 9 (explaining that Lochner is part of the Court’s liberty-of-contract doctrine, which developed out of long-standing Anglo-American traditions).

[5]. See id. at 55 (laying out the twisted irony in modern constitutional scholarship of deriding liberty-of-contract decisions while drawing from pre-New Deal decisions that reject novel assertions of governmental power, and describing how modern jurisprudence is a synthesis of government regulation of the economy, support for individual rights, and a skepticism of government power—the latter two reflected in liberty-of-contract cases).

[6]. See id. at 6, 113–15 (explaining that the similarities between liberty-of-contract cases and privacy cases—such as Griswold—were ignored by the pre-New Deal Court).

[7]. See id. at 90 (arguing that by the end of the liberty-of-contract era, liberal jurists had begun to oppose the enforcement of economic rights alone).

[8]. Eric J. Segall, Reconceptualizing Judicial Activism as Judicial Responsibility: A Tale of Two Justice Kennedys, 41 Ariz. St. L.J. 709, 709 (2009).

[9]. Bernstein, supra note 1, at 120 (explaining Sunstein’s argument against Lochner).  While Bernstein’s work has obvious size limitations, it would have strengthened Bernstein’s efforts greatly to not simply mention Sunstein’s work but also to dismiss its contents.  Sunstein argued that Lochner was incorrectly decided due to the assumptions made by liberty-of-contract jurisprudence, including that our current order is natural and that this natural order must be maintained.  See Cass R. Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873, 874 (1987) (describing Lochner as resting upon an interest in neutrality).  For Sunstein, the basic understanding of Lochner as a product of activism must be deconstructed for a true evaluation of Lochner and of the economic system that it seeks to support.  Id.

[10]. Bernstein, supra note 1, at 5; see also, e.g., Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 1 (2004) (bemoaning the Court’s transformation of the Constitution from a “sea of liberty” with “islands of government power[]” to an ocean of government power flecked with “islands of liberty”); Richard A. Epstein, How Progressives Rewrote the Constitution 2, 14 (2006) (declaring that the New Deal Court affirmed the standard of limited protection of individual liberty, contrary to his own libertarian position, which is grounded in a respect for individual choice);Robert A. Levy & William Mellor, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom 2 (2008) (decrying the Supreme Court’s selective protection of individual rights); William Martin, The Lost Constitution 236 (2007) (mocking American political parties’ lack of respect for the Constitution).

[11]. See Bernstein, supra note 1, at 47, 54 (comparing the use of the state as an instrument of social control to Social Darwinism, and characterizing supporters of market alteration as oblivious to their opponents’ rationale against government intervention in the labor market).

[12]. See, e.g.id. at 9, 123 (identifying a long-standing tradition supporting natural rights and underpinning the liberty-of-contract doctrine, but failing to identify the precise source of this intellectual tradition).

[13]. See id. at 6 (arguing that his book “is an effort to correct decades of erroneous accounts of the so-called “Lochner era”).

[14]. See, e.g., id. at 23 (stating that the chief supporters of the maximum-hours legislation struck down in Lochner wanted “to drive small bakeshops that employed recent immigrants out of the industry,” even while they sought to advance health and safety goals).

[15]. See generally id. at 10–22 (identifying the doctrinal precursors to the Court’s Lochner decision, including Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), which invoked due process to protect slave owners’ property interests).

[16]. See id. at 17–20 (surveying the history of the doctrine of contract of liberty from its roots in antebellum natural rights doctrine).

[17]. See id. at 20–22 (noting that “laissez-faire constitutionalism had already been soundly defeated” when Lochner was decided and that no consensus existed on the Supreme Court as to the extent to which states’ authority should be limited by protections of fundamental rights).

[18]. An example of how different academic opinions can be drawn from the Founders varied understandings of the Constitution and constitutional treatment of economic rights can be drawn from scholarship on the Court’s treatment of the Commerce Clause.  See, e.g., Barnett, supra note 10, at 274–318 (outlining a restrictive federal commerce power).  But see generally Grant S. Nelson & Robert J. Pushaw, Jr., Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations but Preserve State Control over Social Issues, 85 Iowa L. Rev. 1, 1–174 (1999) (offering an expansive reading of the commerce power that undertakes a survey of the same materials that Barnett surveys, although they come to a radically different outcome by comparison).  The varied nature of this scholarship makes it difficult to accept the proposition that the Constitution was supposed to support a particular vision of economic rights.

[19]See Barnett, supra note 10, at 278 (searching for the original meaning of the Commerce Clause).  Barnett looks at the contemporary meaning of “commerce” in 1787, searching for “instances where the context makes clear that the speaker intended a narrow meaning.”  Id.  Barnett is unable to find this instead only locating “proceedings that unambiguously used a broad meaning of ‘commerce.’” However, alternative meaning from the original sources has been identified by other academics.  See Jack Balkin, Living Originalism 150 (2011).  According to Balkin, “The concept of ‘commerce’ in the eighteenth century had strong social connotations which are almost the opposite of our modern focus on commodities.  Id.  This is different from Barnett, who can be placed in the same category as Justice Clarence Thomas, who has argued the original meaning of “commerce” is very narrow, essentially limited to the trade or exchange of goods and commodities.  Thus, it would not include manufacturing, mining, or agriculture, much less any non-economic activities.  This reading is anachronistic: by focusing on the disposition of commodities it reflects a modern conception of commerce viewed as a subset of economic activity; it completely misses the eighteenth-century dimensions of commerce as a form of social intercourse. Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 16 (2010) (footnote omitted) (citing United States v. Lopez, 514 U.S. 549, 585–86 (1995) (Thomas, J., concurring)); see also Nelson & Pushaw, supranote 18, at 13 (searching for the original meaning, intent, and understanding of the Commerce Clause).

[20]. See Bernstein, supra note 1, at 23–39 (marshaling facts about the labor and political conditions that gave rise to Lochner in order to rebuke a view of the case as a judicial blow to exploited bakery workers).

[21]. See, e.g.id. at 24–27 (exploring the role of baking unions in the development of the labor law at issue in Lochner, which limited bakers’ working hours).

[22]. See id. at 14–16 (noting that the constitutional ban on class legislation constituted one of the two ideas from which liberty-of-contract doctrine arose).

[23]. See id. at 32 (describing the reliance of Lochner’s attorneys on an argument that the labor law at issue inconsistently protected bakers and their employers in an inconsistent manner).

[24]. See generally id. at 56–72 (outlining the extent to which the Supreme Court’s rejection of liberty-of-contract protection facilitated rulings upholding labor laws that regulated women); id. at 73–89 (highlighting that racial segregation, far from being in accord with liberty-of-contract doctrine, was in tension with Lochner-like precedent).

[25]. See id. at 40–41 (observing the contemporary critiques of Lochner and liberty-of-contract doctrine).

[26]. See id. at 40 (noting that Lochner cut across traditionally-defined ideological barriers).

[27]. See, e.g.id. at 56, 57 (demonstrating that liberty-of-contract doctrine provided relief for opponents of sex discrimination, where the Equal Protection Clause was unavailing).

[28]. See id. at 61 (identifying Muller v. Oregon, 208 U.S. 412 (1908), as an example of progressive paternalism, which obstructed women’s rights, although freedom of contract and antidiscrimination were “natural allies”).

[29]. Id. at 89 (arguing that a “racially egalitarian interpretation of the Fourteenth Amendment began during the liberty of contract era”).  Bernstein, however, acknowledges that many legal scholars believe that Lochner is ideologically consistent with the Court’s race-discrimination jurisprudence.  Id. at 73.

[30]. See id. at 108–10 (comparing the Court’s abandonment of Lochner with its aggressive adoption of other substantive due process doctrines).

[31]. See id. at 118 (noting that modern conservatives, in arguing against substantive due process, have adopted arguments with roots in the progressive critique of Lochner, while modern liberals have adopted a position that would have been regarded as pro-Lochner).

[32]. See id. at 122–23 (elucidating apparent doctrinal inconsistencies among conservative and liberal positions without addressing rebuttal arguments that these positions may actually be consistent with both sides’ anti-Lochner sentiments).