Rehabilitating Lochner


Author: Timothy Sandefur

Yesterday’s mail brought David E. Bernstein’s new book, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. This is the latest in what has now become a string of books on the importance of constitutional protections for economic liberty. In addition to my Right to Earn A Living, recent weeks have brought David Mayer’s Liberty of Contract, and Clint Bolick’s Deathgrip, as well. If two make a trend, this should make a watershed or a juggernaut or something.

Bernstein is the nation’s leading authority on the Lochner case, and his concise book is the first serious effort to put the case in its legal and historical context, and understand it rather than to caricature it for partisan reasons. The only other single volume about Lochner that I’m aware of is Paul Kens’ 1998 treatment, which as I explain in my book, is profoundly flawed. Nor does Bernstein try, as I and others do, to promote what he calls a “full throated defense of libertarian constitutional jurisprudence.” Instead, Rehabilitating Lochner is a fair and carefully researched description of the history of the case, its consequences, and mostly of the bizarre relationship that Progressives, both past and present, have to the case. It might initially seem odd that Bernstein devotes only about two pages to the action decision itself, but that’s because the case is much more important as a symbol than for its actual legal doctrine, which was basically a straightforward application of longstanding precedent protecting individual rights against arbitrary government action. But because Lochner was decided in 1905, when the Progressive era was in full swing, it became the target of attacks by partisans who sought greater government control over individual decisions. Thus it became “the key emblematic illustration” used by intellectuals who came from different philosophical backgrounds. “The long-standing myth of a wildly activist, reactionary Supreme Court imposing a grossly unpopular laissez-faire ideology on the American people on behalf of large corporate interests—with little concern for precedent, constitutional text, or individual or minority rights—is far removed from historical reality.” This myth was invented to justify a political campaign for greater government control over economic decisions. But at the same time, today’s liberals make arguments that are found almost word-for-word in the Lochner decision itself when they demand greater protection for personal liberty like privacy or speech.

Bernstein’s book is an important contribution to understanding not only the Lochner decision itself, but the political and jurisprudential storms that have surrounded it for a century. I recommend it highly. And, while we’re at it, I recommend his other books, too: Only One Place of Redress, a particularly outstanding work on the importance of economic liberty to racial minorities, and You Can’t Say That! about the violation of free speech rights and other civil liberties posed by anti-discrimination laws.