I am a great admirer of Akhil Reed Amar’s books The Bill of Rights and America’s Constitution. In fact, all PLF law clerks receive a copy of the latter as part of their assigned reading materials. Amar’s excellence as an expositor of the Constitution lies not just in his familiarity with the source materials of the founding and of the post-Civil War era, but also in his skill at weaving together different parts of the Constitution into a holistic picture of how the nation’s fundamental law works.
Sadly, Amar’s work often fragments when he runs up against the legacy of the Progressive era, in which the philosophical foundations of the Constitution were subjected to a sustained assault—an assault that in some ways triumphed over the Constitution in the 1930s. Amar’s partial embrace of Progressivist thinking leads to some very disappointing moments—for example, in America’s Constitution where he pays scant attention to the abuse of the Commerce Clause in the post-New Deal era, and doesn’t even cite the work of Randy Barnett, the nation’s leading scholar on the original meaning of that constitutional provision.
Since I have not yet read Amar’s latest book, The Unwritten Constitution, I hesitated at first to comment on his recent post discussing Lochner v. New York—the subject of David E. Bernstein’s book and a case I discuss at length in my own book, The Right to Earn A Living. But in light of the exchange between him and Prof. Bernstein, I think a few further points are in order.
Amar endorses the Progressive consensus that Lochner is part of the “anti-canon,” of Supreme Court decisions that are “exemplars of how not to interpret the Constitution.” Nobody disputes that the case is seen that way by many—but wrongly so, I contend. According to Amar, the Lochner Court was “overeager to invalidate progressive legislation.” Bernstein has shown that that’s untrue. But Amar also contends that “[n]othing in the written Constitution expressly prohibited maximum-hour laws, and it is hard to make a winning argument that the Constitution implicitly did so.” Notice that “hard to” and “winning” are hedge words. In fact, the Supreme Court was persuaded, and I am persuaded, that the Constitution does implicitly prohibit maximum-hour laws. Even those who are not so persuaded must acknowledge the logical validity of the following syllogism, which sums up the Lochner decision:
A) The Constitution’s prohibition on states depriving people of “liberty” without “due process of law” bars states from depriving people of any freedom, including the freedom to make their own economic choices, arbitrarily. This means that states may deprive people of such freedoms only for legitimate public reasons (which is what “due process of law” means).
B) The New York bakeshop act, which limited the liberty of workers and employers to choose the hours of employment for themselves, did not advance a legitimate public reason—it did not protect the general public, did not protect workers, and did not advance any other public interest.
C) Therefore the New York bakeshop act is unconstitutional.
Lochner has been misrepresented in legal texts since the day it was decided—by Justice Holmes, for example, who falsely claimed that the decision rested upon an “economic theory,” which it did not. The Lochner decision was a routine application of the due process of law theory that dated back at least three centuries by that time. Again, even one who disagrees with the truth of these premises must concede that this is a valid logical argument; one which the Lochner Court found persuasive, and one that rested on a substantial body of constitutional and legal thought up to that time.
The Court’s root objection to such laws was that they were designed to redistribute wealth from employers to laborers.
While true, this characterization is too broad to be accurate. The Court’s objection to such laws was actually that they restricted liberty without advancing a legitimate public interest, since they neither protected bakers against unsafe or unhealthful conditions, nor protected the general public from harms. “The State…has power to prevent the individual from making certain kinds of contracts” the Court said, but “there is a limit.” There must be some limit because “[o]therwise the Fourteenth Amendment would have no efficacy and the legislatures of the States would have unbounded power[…. They could just] say that any piece of legislation was enacted to conserve the morals, the health or the safety of the people [and then…] such legislation would be valid.” Therefore “[i]n every case…the question necessarily arises: is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary or arbitrary interference with the right of the individual to his personal liberty…?” The Court went on to show that the law did not protect the public, did not protect workers, and did not advance any other genuine public interest, but was a “mere meddlesome interference with the rights of the individual.” The justices did conclude that mere redistribution—that is, the taking away of freedom from one group simply because other groups didn’t like them and wanted to take away their economic freedom—was not a legitimate state interest. This is a proposition the Court continues to embrace today. But Amar’s single sentence caricature brushes away these details and leaves us with very little understanding of the case.
Amar believes that redistribution itself was an acceptable government interest because
[T]he Thirteenth Amendment itself — which redistributed slave property from masters to slaves with no compensation
was an act of redistribution. Consider how extreme this argument is: because the Constitution abolished slavery, states can also dictate any other economic choice that an individual may make, because now it’s open season on wealth redistribution? To paraphrase something Amar said elsewhere, no first year law student could ever get away with an argument like that.
First, the Thirteenth Amendment was not written to redistribute wealth, but on the contrary to restore it to where it rightfully belonged—that is, to restore to the slaves the self-ownership and the right of self-determination that had been taken from them by the institution of slavery. The New York law, by contrast, took away that right of self-determination and freedom of choice for bakers. As the Court observed in an earlier case that struck down a restriction on economic freedom, “the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”
Second, the Thirteenth Amendment, like the Fourteenth and Fifteenth Amendments, were designed to take power away from states—not to give it to states. Yet Amar’s criticism of Lochner was that unduly restricted the power of states, which in Lochner was at least arguably being abused to restrict a disfavored minority.
Third, the very fact that the Thirteenth Amendment was an amendment to the Constitution indicates that the framers of that Amendment did not believe that government had inherent power to redistribute wealth in whatever way it saw fit. On the contrary, the Lincoln Administration saw the seizure of slaves was justified only as a war measure—as confiscation of enemy property—not as a general government policy. And the Thirteenth Amendment had to be added to the Constitution in order to allow the liberation of slaves. Even if one interprets this Amendment as wealth redistribution, which I do not, the passage of the Amendment shows that other forms of wealth redistribution were not authorized.
Amar buttresses his reliance on the Thirteenth Amendment with reliance on another Amendment:
[T]he Court implausibly continued to follow a strongly anti-redistributionist line even after the American people in 1913 openly embraced the propriety of redistributive policies via an Income Tax Amendment that envisioned a strongly progressive—that is, redistributive—tax structure.
But, like the Thirteenth Amendment, the Income Tax Amendment (a) expanded federal, not state power, (b) certainly did not alter the content of the “privileges or immunities” or the “libert[ies]” protected by the Fourteenth Amendment—which, under precedents dating back at least to the days of Elizabeth I, had always protected the right of an individual to work for a living without arbitrary government interference—and (c) indicates that except for an Income Tax, no power to redistribute wealth was being adopted. The Sixteenth Amendment certainly does not indicate that states may redistribute wealth in whatever way they wish; nor does it indicate a general social acceptance of the notion that government is just in the business of wealth redistribution inherently. Quite the contrary: such a notion would have rendered that Amendment unnecessary.
Maybe Amar addresses these questions in greater depth elsewhere in his book. Again, I have not read it—and Prof. Amar seems extremely impatient with people commenting on his book before reading it (even though he invited them to do so). But in the passages he posted on the Volokh Conspiracy, his argument about Lochner is untenable.
Akhil Amar’s skill at overlapping different constitutional provisions and exploring their parallels is enlightening and extremely interesting. I have learned a tremendous amount from his books, and recommend them above almost any other work in constitutional scholarship. But the problem with the big picture is that you lose detail, or read into the record factors that are not there. That seems to have happened here.