September 19, 2003


Judicial Throwback (Washington Post, 9/18/2003)

The Bush administration's decision to nominate Janice Rogers Brown to the nation's second most important court, the U.S. Court of Appeals for the D.C. Circuit, raises a seemingly paradoxical question: Where is the conservative outrage?

After all, Brown, a California Supreme Court justice, openly supports a return to the era of Lochner v. New York, the 1905 case in which a state statute that attempted to impose a maximum-hours limitation on bakers was struck down ...

Deemed an "abomination" by Robert Bork, Lochner often is described as the most widely reviled decision of the past 100 years. The reason conservatives hate Lochner is not its results; many conservatives support the free-market social Darwinism advanced by the Lochner-era court. Rather, conservatives reject Lochner because it epitomizes the worst type of judging. As explained by former attorney general Edwin Meese III, "the Court in the Lochner era ignored the limitations of the Constitution and blatantly usurped legislative authority." Senate Judiciary Committee Chairman Orrin Hatch (R-Utah), in describing the perils of an activist judiciary, has placed Lochner in the company of the infamous Dred Scott ruling, which legitimized the spread of slavery and helped provoke the Civil War....

Justice Brown ... has written that she "initially accepted the conventional wisdom" that the doctrine used in Lochner was "a myth invented by judicial activists that were up to no good," and that "Lochnerism is the strongest pejorative known to American law." Brown now rejects that conventional wisdom, however, and she chides conservatives for their "dread" of judicial activism. In her words, it "dawned on me that the problem may not be judicial activism. The problem may be the world view -- amounting to altered political and social consciousness -- out of which judges now fashion their judicial decisions."

The U.S. Constitution, Article I, Section 10, says: "No State shall ... pass any ... Law impairing the Obligation of Contracts." Whether or not the federal government had the power to enforce this provision prior to passage of the 14th Amendment, it surely acquired it with that passage, for Article I here declares freedom of contract to be a privilege or immunity of citizens of the United States.

Lochner applied this constitutional law to strike down a New York law that impaired the obligation of contracts calling for long workweeks. The hatred toward Lochner is simply hatred toward economic freedom and toward the notion that the federal government should protect economic freedom. Shame on Bork, Meese, and Hatch for pandering to leftist prejudices by criticizing Supreme Court Justices who were doing no more than their sworn duty.

Let us hope Janice Brown is soon a nominee to the Supreme Court. We need more conscientious judges, who look not to fashionable prejudice but to the text of the Constitution and statutes to discern their duty.

Posted by Paul Jaminet at September 19, 2003 9:18 AM

Too many so-called judicial conservative misread Lochner-era police powers jurisprudence, mainly because they completely ignore the political-philosophical context (lawyers are bad about this), but also because Lochner was not the most tightly reasoned expression of the police powers jurisprudence of that era (hence it's an easy whipping boy). Justice Sutherland's majority opinions in the police-powers/substantive due process cases are the best, and his dissent in West Coast Hotel v. Parrish is brilliant.

Incidentally, the dissent by Holmes in Lochner that everyone cites as being so brilliant was largley beside the point. But since Progressive historians eventually wrote the history of the Lochner-era, and since overturning the classical approach to police powers jurisprudence represented by Lochner was one of the greatest victories of Progressives, it's hardly surprising that the Holmes dissent is elevated to some sort of holy grail of conventional wisdom regarding the Lochner era. Too bad the legal, political, and historical context rebuts that conventional wisdom.

Thanks for shining some light on this largely ignored topic. :)

Posted by: kevin whited at September 20, 2003 11:54 PM

You will search the Lochner decision in vain for any mention of Article 1 Section 10 ( ). The decision states quite directly that that the 14th Amendment establishes a right to work more than 60 hours a week for an employer, proof against state law.

So when PJ writes that the court used Article I Section 10 to strike down the NY law, he is wrong.

The phrase "Obligation of Contracts" has a rather specific legal meaning ( ), relating to legal means used to enforce a contract. It hardly implies an absolute right to negotiate any sort of contract one chooses. You could make a case that Art. I Sec. 10 would have prevented the NY law from applying to any baker who already had a contract with an employer to work more than 60 hours/week. However, this is not what the Court decided.

The conventional wisdom on Lochner seems to be right: the Court mangled the 14th Amendment to invent a right to work more than 60 hours per week. The decision provides no historical evidence that the 14th Amendment was meant to force a laissez-faire philosophy of labor regulation upon the states; the decision simply states that the NY law is "in conflict with... the Federal Constitution." Robert Bork quite rightly calls the decision an abomination.

Posted by: Peter Caress at September 22, 2003 12:35 AM

P.S. Let us hope Janice Brown is never a nominee to any Federal court. We need more conscientious judges, who look not to fashionable prejudice but to the text of the Constitution and statutes to discern their duty. Such a judge would not misread "Obligation of Contracts" as "Freedom to Make Any Contracts."

Posted by: Peter Caress at September 22, 2003 12:49 AM

Peter - Thanks for the legal education. It is a reasonable position to say that Article I was limited in scope and wasn't intended to protect freedom of contract. (However, your link cites only cases after Dred Scott, by which time the Court was already impairing the obligation of many clauses of the Constitution. I would want to look back to earlier opinion before accepting such an interpretation of Article I.)

Even if one ignores Article I Section 10, there is a strong case that the 14th Amendment was meant to incorporate freedom of contract, and other economic freedoms, among the privileges and immunities it protects. There was a recognized common law freedom of contract, and the authors of the 14th Amendment repeatedly stated their belief that recognized common-law rights were among the privileges and immunities of citizens.

In any case, even if you believe in the limited definition of "obligation" implied by your link, that obligation would still be impaired by laws passed *after* the contract had been signed. As you say, the Court could have recognized such a limited right in West Coast Hotel v Parrish, but didn't. So it seems none of the Court's rulings have relied on a limited definition of "obligation" or "impair" -- instead, they've either read the Constitution to support freedom of contract, or to be silent on the matter and Artile I Section 10 to be pointless.

Posted by: pj at September 22, 2003 7:16 AM

The famous Dartmouth College case ( ), decided in 1819, discusses Art. I Sec. 10 extensively. Basically the Court decided that the charter establishing Dartmouth was a legal contract between the College Trustees and New Hampshire, so a New Hampshire law that would have changed the charter considerably was unconstitutional under Art. 1 Sec. 10.

This seems to have been the main purpose of that clause: prohibiting laws that would enable someone to legally welch on a contract he had already signed.

The 14th Amendment may protect common law rights, but did common law embody a 19th centruy laissez-faire philosophy of absolute economic freedom? I have my doubts. States surely had laws regulating commerce beyond the strictest interpretation of "police powers" before the 14th Amendment was passed. To the best of my knowledge, no individual state's bill of rights promulgated an absolute freedom of contract. And the Lochner decision presented no historical evidence that common law embodied such an expansive view of contract rights.

Posted by: Peter Caress, Dartmouth '91 at September 22, 2003 10:30 AM