Rehabilitating Lochner: Defending Individual Rights against Progressive Reform

Rehabilitating Lochner and millions of other books are available for Amazon Kindle. Bernstein has done nothing less than explode the myth of Lochner, a decision that any pro-liberty student of American constitutional law should embrace. David E. Bernstein is Foundation Professor at.
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Ferguson, that created segregated schools, yet denied the validity of racial segregation in deed restrictions i. When the justices move away from the actual meaning of the words of the Constitution, it leads to "socially approved" rulings, but rulings that do not reflect the true justice ensured by our Constitution. Over the years, the "liberal" or "progressive" viewpoint has often resorted to judicial rulings, when our society and culture would be better served by simply promoting a policy and attempting to sway public opinion to support legislation implementing such policies including, if necessary, making an amendment to the Constitution.

A more current example, instead of lying about "common sense gun regulation" when the underlying goal is to remove guns from our society, why not simply propose a constitutional amendment to remove or significantly modify the 2nd Amendment from the Constitution? However, it is likely to be more healthy for our society if views are aired in public and appropriate legislation is debated and modified to reach a wide public consensus.

If you attended law school in the past couple of decades, invariably you heard Lochner castigated as a Supreme Court decision second only to Dred Scott, and maybe Plessy v.

Ferguson, in its wickedness. As Professor Bernstein ably shows in his presentation of legal historians' new, more accurate understanding of the history of economic rights, this is less rooted in fact than in modern political battles. New York, the Supreme Court famously invalidated a state law that limited the number of hours a day a baker could work. Perhaps unfairly, it is seen as the flagship case for the now much-reviled idea there is a liberty of contract right implicit in the Due Process clause of the 14th Amendment.

Bernstein shows, Lochner was neither extraordinary nor unprecedented. He also paints a very different picture of the context surrounding the case than that typically given today. It was not a showdown between big business and workers. The large bakeries by and large supported the law because it hurt their small competitors more than them the law was also heavily union-supported.

I also found it interesting that this was an early example of a "test" case--small bakery owner Lochner, seen as a sympathetic plaintiff, coordinated his indictment for violating the law with an employee. Bernstein organizes his book into eight plainly named chapters: Bernstein buttresses his direct discussion of Lochner in the early chapters with ample context. The concept of economic rights was not an anomalous legal doctrine. It was rooted in orginalist interpretation of the Constitution albeit a proto-originalism.

Statutes were challenged under two different legal theories, both rooted in the 14th Amendment. One was under a liberty of contract theory based out of the Due Process clause an early version of substantive due process. The other was under a theory of class legislation based out of the Equal Protection Clause.

The liberty of contract theory proved to be more fruitful in attacking statutes. Unlike the current attacks on the healthcare bill, which all argue it does not fall under any of Congress's enumerated powers, the theories Prof. Bernstein covers applied to state as well as federal statutes.

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Bernstein takes pains to show the modern left is not the pure philosophical successor to 19th century Progressives. Progressives were generally, with a significant exception for Free Speech, hostile to individual rights across the board. Notably, this included equal protection for African-Americans.

Lochner era

Bernstein makes a strong case that Buchanan v. Warley, by preventing the elimination of the property rights of African-Americans and facilitating African-American migration from oppressive southern states to the northeast and Midwest, dramatically limited the pernicious effects of Jim Crow segregation. Modern constitutional scholars are not so kind.

Professor Akil Reed Amar only finds room to devote a single paragraph to Buchanan in his 1, page tome of a casebook. Bell upholding a eugenics statute. Amar doesn't think much of the import of Buck either--it is relegated to a footnote in his casebook. Lochner and its ilk were reversed and distinguished into nothingness during the New Deal era, but it was only later that they gained their current infamy. All of the justices in the Griswold case establishing a right to privacy relied on the Meyer and Pierce cases, both of which used a "Lochner-like understanding of the Due Process clause.

Wade, the court firmly ignored both 9th Amendment and "penumbras and emanations" arguments, rooting the right to privacy in the 14th Amendment. With the rebirth of substantive due process as a protector of non-economic rights, the Lochner line of cases suddenly became very dangerous to legal scholars and jurists very supportive of the right to privacy but very hostile to economic rights.

Laurence Tribe's incredibly influential treatise led the charge in the re-defining the Lochner cases.

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Bernstein writes with clear prose and provides plentiful historical background, context, and anecdotes. I also must say that Rehabilitating Lochner has the best cover I have ever seen on an academic book. Bernstein is a legal historian and a consequentialist, so he does not spend much time examining the philosophical implications of the Lochner-era, its denouement, and its later revision. But that is all to the better, as it allows the reader to draw his or her own conclusions. I think the twin conclusions to be drawn are that economic rights played a positive role in late 19th century jurisprudence and law students should be taught as much and that there must be some place for economic rights in modern substantive due process.


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I think this book must also be extremely important to any classic liberal legal scholar. I read this for one of my Kindle Edition Verified Purchase. I read this for one of my courses, and I was initially skeptical about the Lochner decision. This book gives a great perspective to why Lochner was a historical case. An original thinker's thoughts are always worth reviewing especially in a society deformed by ideologies like the "progressive" movement.

Legal History The Constitution and the Courts. You may purchase this title at these fine bookstores. Outside the USA, see our international sales information. University of Chicago Press: About Contact News Giving to the Press. Restoring Justice Edward H. The Microsoft Case William H. The Rise of Liberty of Contract 2. The Lochner Case 3. Progressive Sociological Jurisprudence 4. Sex Discrimination and Liberty of Contract 5.


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    4. Liberty of Contract and Segregation Laws 6. Lochner in Modern Times. Scott Douglas Gerber EH.

    Rehabilitating Lochner: Defending Individual Rights against Progressive Reform, Bernstein

    University of Chicago Press, Supreme Court decision, Lochner v. His new book, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform , is the culmination of his years of scholarship on the case. I learned a lot from reading it. Indeed, after finishing Bernstein?

    Rehabilitating Lochner

    Rehabilitating Lochner is intellectual history in its highest form. Bernstein states in the Introduction that? Lochner is likely the most disreputable case in modern constitutional law discourse? What history can tell us is that the standard account of the rise, fall, and influence of the liberty of contract doctrine is inaccurate, unfair, and anachronistic?

    He devotes the remainder of his book to substantiating this remarkable claim, and he succeeds marvelously. Chapter One explores the rise of liberty of contract, a constitutional law doctrine that guarantees individuals and corporations the right to enter into formal agreements without government interference. The doctrine is widely understood as the linchpin of laissez-faire economics and free market libertarianism.

    Bernstein demonstrates in the chapter that the doctrine was not created from whole cloth by an activist, pro-capital Supreme Court, but rather traces to the foundational principle of American constitutionalism: Chapter Two is devoted to the Lochner litigation itself, a decision in which the nation? Bernstein chronicles in the chapter how those who have pilloried Lochner over the years do not understand what the litigation was actually about. He points out, for example, that the bakers? What impressed me most about the chapter, however, were the sources that Bernstein cites in support of his reading of the case: Chapter Three, a discourse on the sociological school of Progressive jurisprudence that mounted the initial attack on Lochner , finds Bernstein excoriating several luminaries of American law.

    For example, Bernstein includes Pound in a group of legal elites whose support for sociological jurisprudence? Sex Discrimination and Liberty of Contract,? Liberty of Contract and Segregation Laws,? Bernstein demonstrates in the chapters that the supporters of Lochner were far more protective of the rights of women and minorities than were Lochner?

    With respect to women?