New York UniversitySchool of Law

Public Law and Legal Theory Working Paper SeriesWorking Paper 24

Fall 2000

The History of the Countermajoritarian DifficultyPart Three: The Lesson of Lochner

Barry Friedman

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THE HISTORY OF THE COUNTERMAJORITARIAN DIFFICULTY,

PART THREE: THE LESSON OF LOCHNER

BARRY FRIEDMAN Professor of Law New York University School of Law 40 Washington Square South New York, New York 10012-1099 Phone: (212) 998-6293 Fax: (212) 995-4030 E-mail: barry.friedman@nyu.edu Copyright 2000 by Barry Friedman

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I. INTRODUCTION* This paper advances the claim that the legitimacy of judicial review necessarily turns in

large part on the extent to which the decisions of constitutional judges are perceived as socially

correct. Its backdrop is the Lochner era, which conventional wisdom takes as one of the worst

chapters in the history of judicial review. Counterpoint to the conventional story about judicial

review is provided by recent revisionist scholarship that seeks to legitimize Lochner era

jurisprudence on the ground that those decisions rested on an established jurisprudential or

doctrinal basis. This paper argues that revisionist scholarship about the Lochner era serves only

to prove the central point: even if there was a jurisprudential foundation for the decisions of that

period, judicial review was contested nonetheless, precisely because the decisions were seen to

be law, but . . . not justice.1

From the 1890s until the middle of the 1920s, courts in the United States were

subjected to sustained and often harsh criticism largely because of judicial neutering of legislation

perceived by many as improving social conditions, regulating big business, and otherwise

ameliorating the negative impact of rapid industrialization.2 The era carries the name Lochner

* I am deeply indebted to the many people who offered help with this project: Matt Adler, David Bernstein, Marius Bolten, Steve Burbank, Chuck Cameron, Michael Dorf, Beth Garrett, Sally Gordon, Mark Graber, Susan Herman, Thomas Hilbink, Katherine Huffman, Laura Kalman, Paul Kens, Michael Klarman, Larry Kramer, Bill La Piana, Henry Monaghan, Bill Nelson, Julie Novkov, Rick Pildes, Robert Post, Robert Pushaw, Jim Rogers, Gary Rowe, Larry Sager, Melvin Urofsky, G. Edward White, and Steve Winter, Lewis Yelin all read one draft -- or more -- and offered extremely valuable comments. Special mention is due Howard Gillman, whose assistance went far beyond the call of duty. I am grateful, as always, to my research assistants -- Liz Blackwell, Rebecca Hale, Anna Johnson, Steve McNutt, Jack Preis, Rob Strayer, Jeremy Saks -- for their spelunking and commitment. Lisa Mihajlovic offered untiring support. Once again, the Vanderbilt University Law School librarians have outdone themselves, as has Jay Shuman, at New York University School of Law. The research was supported by grants from the Vanderbilt Research Council, several of the Deans research funds at Vanderbilt Law School, as well as the Filomen DAgostino and Max E. Greenberg Research Fund at NYU. The project was improved because of comments received during presentations at the Law and Society Annual meeting in Toronto in 1995, a workshop at Brooklyn Law School in 1999, a workshop at Fordham Law School in January of 2000, and an appearance at NYUs Legal History Colloquium in February of 2000. 1 The Income Tax Decision, Atlanta Constitution, April 9, 1895, at 4. 2 Also controversial was judicial use of the injunction to quell labor strikes. See infra nn. ___-___ and accompanying text.

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in recognition of the Supreme Courts infamous decision striking down a New York law

regulating the maximum hours worked by bakers.3 Commentators regularly attacked seemingly

unaccountable judges throughout this entire thirty-year period for interfering with the popular

will.4 The conventional story about the counter-majoritarian difficulty5 finds firm root in this

eras soil.

The paradigmatic nature of the Populist/Progressive periods attacks on the courts

would be reason enough to justify studying the period,6 but pressing importance is provided by

the extraordinary revisionism the era presently is undergoing.7 Scholars of many disciplines are

taking resolute and deliberate aim at the long-standing or received wisdom of the

conventional story.8 Understandings of the period long accepted as gospel now are called

3 Lochner v. New York, 198 U.S. 45 (1905). 4 There was a lull in criticism during World War I. See infra note 46 and accompanying text. 5 Alexander Bickel labeled the problem of reconciling judicial review with democratic government the counter-majoritarian difficulty. See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 1 (1962). This problem has been at the heart of constitutional scholarship for at least the latter half of this century. See Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U.L. Rev. 333, 334 n.1 (1998) (citing sources). 6 This paper is part of a much broader project examining the genesis of the academys obsession with reconciling judicial review and democracy, the problem of the countermajoritarian difficulty. The Lochner era is the paradigmatic example of widespread public attacks on the courts framed in terms of judges interfering with popular democracy. 7 The vast and expanding body of revisionist literature is adequately documented in James A. Thompson, Swimming in the Air: Melville W. Fuller and the Supreme Court 1888-1910, 27 Cumb. L. Rev. 139, 140 n.6 (1996-1997) (reviewing James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller, 1888-1910 (1995)). Most of the recent revisionist effort focuses on dispelling the notion that the Court represented a mere appendage of corporate America. See, e.g., Paul Kens, Judicial Power and Reform Politics: The Anatomy of Lochner v. New York 4 (1990) [hereinafter Kens, Judicial Power] (Historians have pointed out that more regulatory statutes and labor laws were upheld than were overruled during the first thirty years of this century.); Paul Kens, Lochner v. New York : Rehabilitated and Revised, but Still Reviled, 1995 J. Sup. Ct. Hist. 31, 32 [hereinafter Kens, Rehabilitated and Revised] (notes how some revisionists contend that the Supreme Courts decisions during this period were about as progressive as reformers could have hoped, how another group argues that the Courts emphasis on economic liberty is consistent with our Constitutional tradition, and how a third group theorizes that the Courts decisions were consistent with long-standing American traditions inspired by Jacksonian democracy and free labor ideals); Stephen A. Siegel, Let Us Now Praise Infamous Men, 73 Tex. L. Rev. 661, 686 (1995) (reviewing 8 Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States (Stanley N. Katz ed., 1993)) ([O]ld historiography presented them [the Fuller Court] as advocates of business enterprise while the new presents them all as protectors of liberty.) For a small sampling of key revisionist works, see Bernard H. Siegan, Economic Liberties and the Constitution (1980) [hereinafter Siegan, Economic Liberties]. 8See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers

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mythology9 and decisions once seen as the height of judicial impropriety now are considered

to be legitimate interpretation of original meaning.10 In what surely will be news to most of the

broader legal world, one scholar recently claimed that the revisionists have render[ed] the

traditional view of Lochner a relic.11

Not so very long ago the conventional understanding of this time was clear. When

contemporary commentators decry the abuse of judicial power or the evils of judicial activism

the historical examples that most readily come to mind are drawn from Supreme Court decision

making around the turn of the century, a period often referred to as the Lochner era.12

Courts that appear to be substituting their own view of desirable social policy for that of elected

officials are said to Lochnerize.13 Michael Les Benedict, a prominent revisionist, sums up the

traditional message of the era succinctly: Nothing can so damn a decision as to compare it to

Juris prudence 2 (1993) (describing long-standing common wisdom about the era which charged that the Supreme Court began to aggressively disregard the proper boundaries of their authority in order to search out and destroy social legislation that was inconsistent with their personal belief in laissez-faire economics and social Darwinism). 9 See G. Edward White, Revisiting Substantive Due Process and Holmess Lochner Dissent, 63 Brook. L. Rev. 87, 88 (1997) [hereinafter White, Holmess Lochner Dissent] (discussing mythology that the Lochner decision represented the Courts willful substitution of its own view on political economy typically designated as an outmoded gospel of laissez faire for the views of the New York legislature). 10 See, e.g., Bernard H. Siegan, Rehabilitating Lochner, 22 San Diego L. Rev. 453, 454 (1985) (stating that [t]he evidence is very persuasive that Lochner was a legitimate interpretation of original meaning and that [f]ull rehabilitation may be in order). 11 Gary D. Rowe, Lochner Revisionism Revisited, 24 L. & Soc. Inquiry 221, 241 (1999). 12 Gillman, supra note __, at 1. Owen Fiss recently concluded that the Fuller Court, which ran throughout much of this period, ranks among the worst. 8 Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States 3 (Stanley N. Katz ed., 1993). See also James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller, 1888-1910, at 1 (1995) [hereinafter Ely, The Chief Justiceship] (states that [h]istorians have been all too prone to mimic the image, fixed by the Progressives, of a bench single-mindedly devoted to safeguarding corporate interests). For a somewhat less sympathetic look at the Fuller Court, see Herbert Hovenkamp, The Cultural Crises of the Fuller Court, 104 Yale L. J. 2309, 2310 (reviewing 8 Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States 3 (Stanley N. Katz ed., 1993)) (1995) (claiming that the Fuller Court joined its prejudices and suspicions of regulation with an expansive and ill-considered conception of judicial power that enabled the Justices to strike down all manner of legislation by employing highly creative interpretations of the Constitution). 13 Gillman, supra note __, at 4; see also, e.g., 2 Bruce Ackerman, We the People: Transformations 269 (1998) [hereinafter Ackerman, Transformations] ([M]odern judges are more disturbed by the charge of Lochnering than the charge of ignoring the intentions of the Federalists and Republicans who wrote the formal text.).

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Lochner and its ilk.14

No more. Today scholars on both sides of the ideological divide seem to be coalescing

around a far more sympathetic vision of Lochner-era judicial decisionmaking. Rather than

seeing the Lochner era judges as imposing their own views and biases when invalidating

popularly enacted legislation on constitutional grounds, revisionist scholars now assert that a firm

jurisprudential basis for the Lochner era decisions existed in nineteenth century legal thought.

By drawing into question the correctness of the conventional account, revisionists

necessary force us to reconsider conventional wisdom about the proper role of constitutional

judges. Under the conventional account, Lochner stood as an object lesson for judicial

restraint and deference to legislative outcomes. But according to recent revisionism, the

Lochner era judges were acting lawfully (i.e. within the established doctrinal framework), and

their decisions thus were justified without reference to the turmoil they caused in the broader

public. Many revisionists seem to draw from their account a license for more aggressive judicial

review, although they differ in how that power should be exercised.15

The question underlying this paper is whether -- if there is a lesson to be learned from

the exercise of judicial power during the Lochner era -- that lesson best is derived from the

revisionists claim of doctrinal fidelity, or from the conventional storys focus on the angry

reaction the judges decisions in fact evoked, no matter what the jurisprudential basis for those

decisions. Revisionists maintain the conventional account is winners history told by former

14 Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins Of Laissez-Faire Constitutionalism, 3 L. & Hist. Rev. 293, 295 (1985). Accord 1 Bruce Ackerman, We the People: Foundations 40 (1991) [hereinafter Ackerman, Foundations] (For a modern judge, one of the worst insults is that she is reenacting the sin originally committed by the pre-New Deal Court in cases like Lochner v. New York .). 15 See infra notes __-___ and accompanying text for a discussion of normative conclusions that follow from revisionist scholarship.

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Progressives in the wake of the transformation of constitutional law in the 1940s.16 But this

paper establishes that the critical contours of the conventional story are correct. This does not

mean that judges in fact made up legal doctrines and decided cases to further laissez-faire

preferences or class biases. Rather, it is that many segments of the public saw things that way.

Observers at the time believed that courts were manipulating doctrine in ways without historical

precedent in order to further the preferences of certain elites against the legislation that many

others struggled to get enacted. There was widespread skepticism at the time about the

pedigree of the ostensible rights held out to trump the work of popular assemblies. It was

prominent in the thinking of the time to believe that courts were inappropriately setting

themselves up against the popular will.

Because judges were attacked, even if their decisions were precedented, revisionism

may make a contribution to constitutional history, but it adds little at the level of constitutional

theory. There can be but slight insight in the revisionists discovery17 of a jurisprudential basis

for Lochner era decisions: after all, it would be shocking to say the least if there were not some

precedential basis for the decisions of courts spanning what is really a period of over thirty

years. The more historically-minded revisionists do succeed in reminding us about the precise

nature of those jurisprudential threads. But, if judicial independence and the legitimacy of

judicial review are the issues and these must be the issues ultimately then the fact that some

precedential basis for the decisions existed is not news, and the nature of that jurisprudence tells

16 See infra notes __-__ and accompanying text. 17 A number of revisionist scholars approached their tasks in terms of unearthing the previously hidden doctrinal bases of Lochner era decisionmaking. See White, supra note __, at 88 ([w]hen I turned to the relevant sources, I found that neither of the [jurisprudential] mythologies bore much resemblance to the actual relationship between the Lochner Courts decisions and their subsequent repudiation); Melvin I. Urofsky, Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era, 1983 Y.B. 54, 55 (The results of these new investigations require a wholesale rethinking of the problems of judicial response to social reform.).

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us little about whether those decisions will be seen as legitimate and whether judicial

independence will be respected. Even if it is possible to make the argument that Lochner era

judges were acting within an established doctrinal framework, they were not perceived as doing

so.18

Indeed, there is a perverse negative correlation between the success of the revisionists

venture as a matter of history and its impact at the level of theory. Revisionists or some of

them claim to have a contribution to make to the endless debate about the legitimacy of

judicial review. They justify Lochner era decisions as exercises of fidelity to existing doctrine.

But the clearer the existence of a firm doctrinal basis for contested Lochner era decisions, the

more imperative it becomes to explain the hue and cry that attended those decisions. Obviously

doctrinal fidelity did not serve to legitimate the work of courts at the time in the minds of many; it

is unclear why the rediscovery of such strains should persuade us today. Because it is simply a

fact that Lochner era judges were attacked vociferously for their decisions, it behooves

revisionists to explain what identifying those doctrinal threads teaches us about judicial review.

The central point of this paper is that the legitimacy of law is in significant part a function

18 A subsequent article, on the New Deal Court-packing plan, explores the boundaries of judicial autonomy when judicial decisions consistently are contrary to popular preferences. See Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four: Laws Politics, 148 U. Pa. L. Rev. 971 (2000). In 1937, in the face of a threat to pack the Supreme Court, the Justices apparently did an about face, changing the face of constitutional law for at least the next sixty years. New Deal scholarship also offers the conventional external account arguing that the Justices decisions were influenced by the attack on the Court and an internal or legalist argument that the decisions in 1937 were the product of established doctrinal threads. Compare Joseph Alsop and Turner Catledge, The 168 Days (1938) (showing how the Court-packing plan changed the jurisprudence of the Court); and William Leuchtenburg, The Supreme Court Reborn 216 (1995) (noting that in the midst of the controversy over President Roosevelts Court-packing message, the Court began to execute an astonishing about-face) with Richard D. Friedman, The Transformation in Senate Response to Supreme Court nominations: From Reconstruction to the Taft Administration and Beyond, 5 Cardozo L. Rev. 1 (1983) (arguing that Court nominees should not be opposed on ideological grounds and noting that the Court-packing plan was strongly opposed because it also threatened to alter the courts membership for political purposes) and Barry Cushman, Rethinking the New Deal Court, 80 Va. L. Rev. 201, 249-50 (1994) (arguing that the conventional external theory is wrong and that instead the fate of New Deal legislation can be traced to statutory drafting with scant attention to . . . existing constitutional law, poor strategic selection of test cases and ill-conceived legal arguments).

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of its perceived correctness among the body politic. The public rarely knows, and undoubtedly

little cares, if there is a pre-existing doctrinal basis for judicial decisions. Opinion regarding

judicial review is as likely to be formed solely upon whether the decisions of courts are seen as

socially right, or just, or appropriate. This is not to say that public passion should determine the

outcome of judicial cases. If fault be found with the conventional story, it is in encouraging an

understanding of judicial review that sets it against democracy and requires deferential

judging. But the solution, as this article makes clear, is hardly a narrative about constitutional

history that fails to credit the reality, and impact, of public opinion upon the courts.

The proper lesson of Lochner is that, whether or not it is possible to identify a

jurisprudential basis for judicial decisions, when the broader public does not believe them to be

socially correct the work of judges will be seen as illegitimate. There will be attacks on judges,

and ultimately on the institution of judicial review. People will say, as they did throughout the

Lochner era, that the judiciary [is] . . . destroying government by law and substituting

therefore a government of judges.19

Revisionism regarding the Lochner era thus runs the risk of submerging an

understanding of our history that is profound and has been long enduring. It is well to remember

that the conventional story not only has persisted for many years but also has dominated notions

of the proper scope of judicial review for half of this century. Whether the lesson of judicial

restraint at the heart of the conventional story is in fact an appropriate one is something each

generation must work out for itself. But, the conventional story did not become received

19 Christopher L. Tomlins, The State and the Unions: Labor Relations, Law and the Organized Labor Movement in America, 1880-1960, at 66 (quoting AFL election circular dated October 12, 1908, sent to all AFL members and published in newspapers throughout the country); see also Child Labor and the Constitution, Nation, May 31, 1922, at 639 (explaining that problems arose when courts given power of judicial review because reconciliation of progress with the rigidity of a written constitution is a matter of politics and not of law).

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wisdom by accident. Conventional wisdom may be unwarranted, but it is hard to see that

revisionism really undermines it.

It is an especially auspicious time to consider the lesson of Lochner.20 The Supreme

Court has attracted a great deal of attention of late for its aggressive use of the power of judicial

review. Particularly noteworthy is the number of times recently the Court has invalidated

congressional enactments, some of them even of economic legislation.21 In response to this

activity, commentators (and dissenting Justices) are quick to holler Lochner and raise the

supposed lessons of that era and the New Deal.22 The revisionist story would suggest that in

order to determine whether these recent decisions are correct, we should look to see if they

have jurisprudential antecedents. The conventional story, on the other hand, would have us

look further, to determine if those decisions are the correct ones given the social and economic

milieu in which they are rendered.

Part II of this paper sets the stage for an analysis of the revisionists claims. First the

conventional story is summarized and some of the relevant history briefly recounted. Next, the

revisionist effort is described. This description makes clear that an endeavor legitimately begun

as an historical enterprise has been adopted to more normative ends. There may be some truth

to the historical claim about what was in the doctrine, although one can question its importance

20 See Rowe, supra note __, at 223 ([A]voiding Lochners error remains the central obsession, the (oftentimes articulate) major premise, of contemporary constitutional law.). 21 See United States v. Lopez, 514 U.S. 549 (1995) (invalidating Gun-Free School Zones Act on Commerce Clause grounds); Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) (holding that Coal Industry Retiree Health Benefit Act is an unconstitutional taking). Cf. Alden v. Maine, 119 S.Ct. 2240 (1999) (allowing states to assert sovereign immunity to avoid complying with federal statutes). 22 The Alden dissenting Justices compared the majoritys opinion to Lochner because the majoritys conception of state sovereign immunity was as historically and constitutionally innacurate as the Lochner Courts reliance on laissez-faire economics. See Alden, 199 S.Ct. at 2294-95 (Souter, J., dissenting). The claim is a familiar one to make. See Mary Cornelia Porter, Lochner and Company: Revisionism Revisited, in Liberty, Property, and Government: Constitutional Interpretation Before the New Deal 11, 14 (Ellen Frankel Paul & Howard Dickman eds. 1989) (describing similar trades of taunts of Lochnerism during the Burger Court).

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in light of the fact that it would be astounding to most students of the Supreme Court to find any

decision or body of decisions completely lacking in jurisprudential basis. Law simply does not

work that way. But unlike mere historical claims, which rest only on the affirmative case about

what was in the doctrine, the success of the revisionists normative case necessarily requires that

revisionism also succeed in displacing the conventional story.

Part III then carefully analyzes the revisionists claims, suggesting the many difficulties

with their effort. The revisionists appear to call into question virtually every aspect of the

conventional story, from the notion that judges were finding rights in the Constitution that were

not there, to the conclusion that the judges own biases were deciding the cases. Yet, historical

evidence makes perfectly plain that, no matter what the judges were doing in some doctrinal

sense, they were attacked at that time in precisely the terms of the conventional story. Thus,

even if the revisionists case were airtight, it cannot displace the conventional story. Whether or

not Lochner era decisions had a firm jurisprudential basis, the courts nonetheless faced harsh

attacks on precisely the grounds offered by the conventional story and denied by the

revisionists. In fact, the stronger the revisionists historical claim of doctrinal fidelity, the weaker

any normative argument about the proper scope of judicial review.

It is precisely because the Lochner era judges engaged in formalist legal reasoning,

without attention to the felt necessities of the time, that they earned the contempt of their

contemporaries, and of generations to come. Part IV explains that the primary error of the

revisionists thus is their heavy attention to jurisprudential antecedents, and on the doctrine, to

justify the work of judges. If history has taught us anything, it is that doctrinal analysis alone will

not suffice to justify judicial review. In order to produce law, judges unquestionably must

meet certain basic requirements of doctrinal adherence and consistency. But surely, in our post-

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Realist world, we understand how undemanding in some sense this basic requirement can be,

how little it is that the revisionists or some of them at least have proven.

The important lesson of this era, once again, is that the legitimacy of law and the

independence of judges also requires a certain basic public acceptance of judicial decisions.

That is the proper lesson of Lochner. Indeed, what Part IV ultimately explains is that the

conventional story itself is too simple. As a measure of legitimacy and independence the lesson

of struggles in the Populist-Progressive era better is learned from the conventional than the

revisionist account. But the fact is, the judges survived those struggles. Why they did so, and

why they might do so at any given time ought properly to be the object of our attention.

II. THE REVISIONIST ENDEAVOR

The conventional story of the Lochner era has been told and retold, with profound

impact.23 As Owen Fiss, author of the Holmes Devise volume on the Fuller Court explained,

[b]y all accounts, the Court over which Melville Weston Fuller presided, from 1888 to 1910,

ranks among the worst.24 It probably is saying enough to note that Lochner often is paired

with Dred Scott as an example of judicial overreaching, and as an argument for judicial

restraint.25 In the minds of those who tell the conventional story, the modern-day

23 See G. Edward White, The Constitution and the New Deal, at II, 1 (unpublished manuscript, on file with author) [hereinafter White, Constitution] (There is a story about substantive process in early twentieth-century cases involving economic activity that is so familiar, and has been so widely accepted, that a group of cases, typically extending from Lochner v. New York in 1905 to West Coast Hotel v. Parrish in 1937, are habitually designated substantive due process cases in contemporary constitutional casebooks, with only the briefest explanation of what substantive due process means). For examples of the conventional story being told, see Aviam Soifer & H.C. Macgill, The Younger Doctrine: Reconstructing Reconstruction, 55 Tex. L. Rev. 1141, 1154 (1977); Henry Paul Monaghan, Of Liberty and Property, 62 Cornell L. Rev. 405, 412-13 (1977). 24 Fiss, supra note ___ at 3. 25 See Kens, Judicial Power, supra note __, at 2 (pairing Lochner with Dred Scott and Brown v. Board of Educ. as one of the most controversial Supreme Court decisions in American history); Michael J. Perry, Abortion, the Public Morals , and the Police Power: The Ethical Function of Substantive Due Process, 23 UCLA L. Rev. 689, 729 (1976) (noting that Dred Scott and Lochner are evidence that the Supreme Court is fallible). See also Siegan, Economic Liberties, supra note __, at 23 (stating that Lochner is one of the most condemned cases in United States history and has been used to symbolize judicial dereliction and abuse).

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countermajoritarian difficulty (the problem of reconciling judicial review with democracy) was

born during the Lochner era.

This Part describes the revisionist endeavor. Section A canvases briefly the largely-

familiar events of the Lochner era. Section B then explains the revisionist response to those

events, discusses some of the normative implications of the revisionist endeavor, and in doing so

sets the stage for an extended examination of whether the revisionist challenge to the

conventional wisdom about Lochner era judging can succeed.

A. History

Although the era commonly is referred to by its most notorious judicial decision,

Lochner, it more appropriately is called the Populist-Progressive era. Lochner was decided in

1905, yet the real furor over the courts began in earnest some fifteen years earlier, in 1890, and

lasted until at least the middle of the 1920s.26 Criticism throughout was fueled by the fact that

courts constantly ran afoul of the two great political movements of the time: Populism and

Progressivism.27 These two movements spelled out an agenda that attracted enough adherents

Lochner achieved another infamous pairing in the Joint Opinion of Justices OConnor, Kennedy and Souter in Planned Parenthood v. Casey, 505 U.S. 833 (1992). Lochners mate there was Plessy v. Ferguson. 26Many would say it continued through 1937. See Gillman, supra note __, at 201 (noting that the constitutional principles underlying the Lochner era were usurped by the constitutional revolution of 1937). But see Barry Friedman, The New Deal and the Separation of Law and Politics (unpublished manuscript, on file with author) (arguing the Populist-Progressive and New Deal periods were distinct in character). 27 Populism and Progressivism were very different movements, but it is their similarities that play the greatest role in this story. See J.M. Balkin, Populism and Progressivism as Constitutional Categories, 104 Yale L. J. 1935, 1945 (1995) (reviewing Cass R. Sunstein, Democracy and the Problem of Free Speech (1993)) ([a]lthough populism and progressivism share a desire for reform, they diverge most significantly in their attitudes towards the beliefs, attitudes, and actions of the mass of ordinary citizens.).

Populism grew out of agrarian and labor reform movements responding to industrialization and to corporate control of vital aspects of trade such as the railroads. The Populists, disenchanted with the consequences of economic development . . . hoped to preserve an agrarian social order in the face of an industrializing economy. Ely, supra note ___, at 66. See generally Richard Hofstadter, The Progressive Movement, 1900-1915 (1963). The movement was highly romantic, and often backward looking. See id. at 62 ([t]he utopia of the Populists was in the past, not the future.); but see Lawrence Goodwyn, Democratic Promise: The Populist Movement in America XVii (1976) (viewing the purpose of Populism as being much more substantial -- structural reform of the American economic system.). It probably reached its zenith in 1892, the year Colonel James B. Weaver won over a million votes running as a third-party candidate, and

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to permit them to call themselves (whether rightly or wrongly) a majority of the people.28 At

the top of the agenda were several issues that would provide the battleground with judicial

authority: the desire to control monopolistic trade practices,29 improve the working conditions

and wages of common laborers,30 and enact social legislation including reform of child labor

rules, and health and safety laws.31 It was the judicial response to such social legislation that

many scholars see it collapsing after the Populists chose as their standard-bearer in the 1896 election the Democratic candidate William Jennings Bryan. The election of McKinley in 1896 with the largest margin of any winning presidential candidate since 1872 devastated the Populists, leaving them stunned and disheartened. See Robert H. Wiebe, The Search for Order, 1877-1920, at 105 (1967) [hereinafter Wiebe, Search for Order] (after the 1896 election, [p]opulism was dead.); Goodwyn, supra, at 514 (the spirit of Populism expired in the autumn of 1896). Historians of Populism tend to divide into two main groupings: those who romanticize the period and those who are far more critical in their assessments. For an example of the former type of interpretation, see id. (claims that Populism constituted a strange democratic interlude within an era of self-consolidating capitalism that has characterized the mainstream of American politics ever since the Civil War.) For alternative interpretations of the Populist movement, see Stanley Parsons et al, The Role of Cooperatives in the Development of the Movement Culture of Populism, 69 J. Am. Hist. 866, 884 (rejects notion of marginal farmers attacking a political and economic system that was skewed against them and instead portrays Populist rhetoric as part of the American political tradition from which all Americans partook); James Turner, Understanding the Populists, 67 J. Am. Hist. 354, 372 (interprets the Populist movement as not simply a farmers revolt against penury and oppression but rather a reflection of the tension generated between an expanding nation and a frontier that pulled many citizens into relatively isolated life.).

Whereas Populism largely was a rural movement, Progressivism generally found its root in urban centers. See Arthur S. Link and Richard S. McCormick, Progressivism (1983) (points out that Political progressivism originated in the cities); Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. 133 (1955) (comparing Populism and Progressivism, he notes that the latter was characterized by a fresh, more intimate and sympathetic concern with urban problems.). Nonetheless, there were agrarian allies of Progressivism. See Wiebe, Search for Order, supra, at 166 (mentions that [t]he two initial centers of progressive reform were the large cities of the East and Midwest and the predominantly agrarian states of the Midwest and portions of the South.). By the time Progressivism reached its height it is fair to say that much of American politics could be said to be progressive. Id. at 217. Commentators frequently observe that in the 1912 election, the platforms of all three major political parties could be said to be progressive. Wiebe writes that all three leaders accepted the legitimacy of power residing in voluntary, cooperative groups, they assumed the responsibility of the national government for guidance and they conceived of that guidance in bureaucratic terms. Id. 28 It is not necessary that those attacking the judiciary actually constitute a majority, or a majority on every relevant issue, simply that they are numerous enough as to advance the claim with some plausibility. See Friedman, Supremacy, supra note ___, at 350-51. 29 See infra nn. __-__ (discussing controversy over antitrust decisions of the Supreme Court). 30 See William E. Forbath, Law and the Shaping of the American Labor Movement 37 (1989) (state that [t]he labor movement of the 1880s and early 1890s embraced what was, by contemporary standards, a bold program for government regulation of the wage contract and working conditions.); Melvin I. Urofsky, State Courts and Protective Legislation during the Progressive Era: A Reevaluation, 72 J. Am. Hist. 63, 72 (1985) (The struggle to reduce the number of working hours constituted one of the major reforms of the period and was part of a larger campaign for shorter hours dating back to the early nineteenth century.). 31 See Link, supra note ___, at 47 (characterizes federal child-labor legislation as the single most popular social reform of the time.). Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy 221 (1992) (suggests that Theodore Roosevelts 1912 campaign proposal for recall of judges was offered in reaction to judicial hostility towards workers compensation statutes.) In examining

13

fed attacks on the courts, and gave rise to the conventional story.

Courts were already under siege well before the turn of the century. Criticism of the

Supreme Court began in earnest early in the 1890s in response to the "anti-Granger" decisions,

particularly Chicago, etc. Rwy. Co. v. Minnesota.32 Then, In one memorable year, 1895, the

Court delivered three blows in rapid succession: near emasculation of the Sherman Antitrust

Act, invalidation of the Federal Income Tax Act, and broad authorization to break up strikes.

The income tax,33 antitrust,34 and labor injunction35 decisions led to sharp attacks on judicial

state court decisions during this period, Melvin Urofsky attempts to dispel any notion that the courts represented an obstacle to the implementation of the Progressive social legislative agenda. In attempting to enact their program, Progressives, although occasionally delayed in the courts, were not blocked there. Urofsky, supra note ___, at 64. 32 134 U.S. 418 (1890). In 1877 in Munn v. Illinois the Supreme Court had upheld state authority to regulate rates charged by private businesses, so long as that private property was dedicated to public use. Munn, and accompanying decisions, generally affirmed the Granger laws permitting state regulation of rates in the face of due process objections. Then, in Chicago etc. Rwy. Co. v. Minnesota, 134 U.S. 418 (1890), the Court held that the reasonableness of rates set by state commissions were subject to judicial due process scrutiny. Although the issues in the cases were different (Munn addressing the questions of whether the Constitution permitted rote regulation at all, and Chicago, etc. Rwy. Co. addressing whether a specific rate was reasonable and thus Constitutional), the Chicago, etc. dissent stated that the decision practically overrules Munn. Id. at 461. As Edwin S. Corwin wrote of the decision: Its appearance marks a complete volte-face on the part of the Court that fourteen years before pronounced the decision in Munn v. Illinois. Edwin S. Corwin, The Supreme Court and the Fourteenth Amendment, 7 Mich. L. Rev. 643, 660 (1909) [hereinafter Corwin, Fourteenth Amendment]. 33Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429 (1895). It was the Income Tax Case in 1895 that aroused the greatest fury of this early period. Not everyone was opposed to the decision striking down the tax. "The income tax is dead. It is a case of Hallelujah" reported the Washington Post. The Last of the Income Tax, Wash. Post, May 21, 1895, at 6. Some rejoiced in the downfall of what was seen as a populist, or even socialist, initiative. Defenders of the Court insisted that the Constitution embodied the will of the people. "All the judges have to do is ascertain from the instrument what is the will of the people and if they find that it has been perverted by the act under consideration, they cannot do otherwise than to so declare." J.C. Rosenberger, The Supreme Court of the United States as Expounder of the Constitution, 30 Am. L. Rev. 55, 57 (1896); see also Lafon Allen, The Income Tax Decision: An Answer to Gov. Pennoyer, 29 Am. L. Rev. 847, 849 (1895) (asserting that the court is the instrument that the people chose to limit Congress). See Democratic Doctrine Destroys the Populist Income Tax, N. Y. Times, May 21, 1895, at 4; No Other Hearing, Evening Star, May 21, 1895, at 1 (quoting opinion of Russell Sage that the ruling marks the beginning of the downfall of populism and extreme sectionalism). Nonetheless, a subsequent analysis of press and review coverage concluded [t]he critics of the income tax decisions outnumbered and outweighed the defenders. Sidney Ratner, American Taxation: Its History as a Social Force in Democracy 214 (1st ed., 1942). "No case of recent times has occasioned so much discussion and notoriety as that of [the Income Tax Case]." Francis R. Jones, Pollock v. Farmers' Loan and Trust Company, 9 Harv. L. Rev. 198, 198 (1895) (reviewing the income tax case, Pollack v. Farmers Loan and Trust Company, 157 U.S. 429). Taft, when President, commented that [n]othing has ever injured the prestige of the Supreme Court more. This is a quote of Tafts, provided by Bruce Ackerman in Bruce Ackerman, Taxation and the Constitution, 99 Colum. L. Rev. 1, 5 (1999), as quoted in a private letter by one of Tafts close aides. For a discussion of how the debate over what is a direct tax takes on importance today in light of recent tax reform proposals see id.; see also Erik M. Jensen, The Apportionment of Direct Taxes: Are Consumption Taxes Constitutional?, 97 Colum. L. Rev. 2234 (1997).

14

authority.36

The second great period of turmoil can be traced roughly to 1905, and the decision in

Lochner v. New York,37 stretching forward until the onset of World War I. The period from

1906-12 likely was historys most vocal regarding the inconsistency of judicial review with

democratic principles. During this period state and federal courts regularly struck down

social legislation or continued to interfere with direct action in labor unions to obtain remedies

for workers.38 In addition, after sustaining the constitutionality of the antitrust laws generally, the

Supreme Court decided two cases involving the oil and tobacco trusts that promised to give far

greater rein to monopolizing combinations.39 Often the state courts were seen as greater culprits

than the federal courts, and the lower federal courts as more problematic than the Supreme

Court.40

34 Champion v. Ames, 188 U.S. 321 (1903). 35 In re Debs, 158 U.S. 564 (1895). See Charles Noble Gregory, Government by Injunction, 11 Harv. L. Rev. 487 (1898) (detailing the history of the doctrine and its emergence in American courts). Much of the legal commentary was on the merits, whether defending or attacking the courts. For a defense of labor injunctions, see, e.g., W.A. Woods, Injunction in the Federal Courts, 6 Yale L. J. 245, 245 (1897) (rejecting the notion that any decision of the Supreme Court touching the subject of injunction, can be said to be founded on or to involve any new doctrine, or any application of established principle which was new); William G. Peterkin, Government by Injunction, 3 Va. L. Reg. 549, 549 (1897) (attributing the public fervor against the injunction cases to a [j]ealousy of the enlargement of the Federal power older than the Constitution itself). For attacks, see, e.g., S.S.P. Patteson, Government by Injunction, 3 Va. L. Reg. 625, 625 (1898) (criticizing the injunction decisions as a departure from the teachings of textbooks, in conflict with all of the recognized ancient precedents, and not warranted by any new State or Federal statute). 36 See [3 preceding notes]. 37Lochner v. New York, 198 U.S. 45 (1905). 38 One part of the revisionist effort challenges the claims of frequency made above. See infra nn. ___-___ and accompanying text, but as explained, infra, frequency is a relative term. Compared to what the courts had done in preceding years, the period of 1890 1925 was busy indeed. Also in 1908 was the decision in Ex Parte Young, in which the Supreme Court held that despite the Eleventh Amendment, federal judges could issue injunctions against state officials to avoid violations of federal law. 209 U.S. 123 (1908). The decision motivated widespread use of three-judge district court. See Michael E. Solimine, The Three-Judge District Court in Voting Rights Litigation, 30 U. Mich. J. L. Ref. 79, 83 (1996) (decision established the power of federal courts to enjoin the actions of state officials when violative of the federal constitution.). 39 Standard Oil Co. v. United States, 221 U.S. 1 (1911). 40 See Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 L. & Hist. Rev. 249, 254 (1987) ([T]he highest state courts generally competed with one another for the starkest application of freedom of contract and truest belief in laissez-faire ideology.). Conversely, Soifer claims that there is much to Charles Warrens claim that the Supreme Court upheld most state legislation of a progressive nature. Id. at 254. See also Andrew Alexander Bruce, The Illinois Ten-Hour Labor Law for Women, 8 Mich. L. Rev. 1, 19 (1909) (until Lochner the tendency of the Supreme Court

15

As a result of these decisions, the role of the judiciary, and the Supreme Court in

particular, became an important campaign issue in two presidential elections. The movement

against courts during much of this period was led by Theodore Roosevelt who, following his

two terms as a Republican president and a sabbatical on safari in Africa, returned to the United

States and served as the Progressive Partys standard-bearer.41 There were serious proposals

to reform or discipline the courts. William Jennings Bryan called for the election of federal

judges,42 and Senator Owen introduced his proposal to elect and recall federal judges, insisting

that to allow popular decisions "to be set aside by any tribunal not responsible to the people, not

elected by the people, not subject to the recall of the people, or of the people's representatives,

is to establish a judicial oligarchy and to overthrow the Republic."43 The Saturday Evening Post

strongly favored the recall, repeatedly mentioning the people's will and the right of the people to

govern.44 That same year numerous books were published either for or against the recall and

discussing the problem in terms of judicial interference with popular will.45

of the United States had for a long period of years been to trust to the discretion of the state courts and of the state legislatures in so far as the internal affairs of the states were concerned, and interstate commerce, or the national prerogative were not affected); Ernst Freund, Limitation of Hours of Labor and the Federal Supreme Court, 17 Green Bag 411, 413 (1905) [hereinafter Freund, Limitation of Hours] ([A]t all times the courts have disclaimed the right or power to condemn a legislative policy on the ground of its being inexpedient, unwise, or even inequitable.). 41 For an account of how Roosevelt recaptured his role as the leader of the Progressive movement, see I.E. Caldenhead, Jr., Theodore Roosevelt, The Paradox of Progressivism 187-203 (1974). 42 William Jennings Bryan, The Peoples Law, S. Doc. No. 63-523, at 14 (2d Sess. 1914) (speech delivered on March 12, 1912 at the Constitutional Convention). Bryan pointed out that the states used a variety of mechanisms for selecting judges, including popular vote for a definite term, and appointment by the Legislature for a definite term. Id. at 14. He saw no reason for judges to be independent of the people. The people are much more apt to deal justly with judges than they are to receive justice at the hands of judges who distrust the intelligence and the good intent of the masses. Id. at 14 (emphasis omitted). 4347 Cong. Rec. S3368 (July 31, 1911) (statement of Sen. Owen). 44Melville Davisson Post, Recall of Judicial Decisions, Saturday Evening Post, Aug. 31, 1912, at 3 ("A democracy is constructed upon the idea that all power is lodged in the electorate . . . "). 45For books calling for the recall of judges, see Theodore Roosevelt, Introduction to William L. Ransom, Majority Rule and the Judiciary 4 (1912) (justifying criticism of Supreme Court decisions by referring to Abraham Lincolns refusal to accept the Supreme Courts decision in the Dred Scott case); id. at 6 (claiming that it is the people, not the judges, who are entitled to say what their constitution means); William L. Ransom, Majority Rule and the Judiciary 36 (1912) (questioning how it could be just "for a few men [to] obstruct the will and the needs of the many," especially where there seems to be no question of "substantial rights"); id. at 78 (insisting that it is not a question of whether or not to change but by what method shall

16

Although commentators generally agree that criticism of the courts enjoyed a lull during

the war years,46 the early 1920's saw a revival of criticism of the courts, a revival which actually

commenced at the end of the previous decade with the Supreme Courts invalidation of the

national child labor law.47 The Child Labor decision "was the spark that ignited new fires that

raged from 1922 to 1924."48 A series of 5-4 decisions "in which the Supreme Court offended

nearly every stripe of liberal opinion"49 added fuel to the fire. From 1921-26 the Court struck

down many state and federal laws accepting due process arguments in fifteen of fifty-three

cases.50 Of particular significance was the 1923 decision in Adkins v. Children's Hospital,51

invalidating the District of Columbia's minimum wage law for women and children. Adkins

raised such a storm of commentary that the New Republic put out a book, The Supreme

Court and Minimum Wage Legislation, collecting the largely very critical commentary by the

Legal Profession on the District of Columbia Case.52 It was during this period that Charles

Warren published his monumental historical defense of the Court, The Supreme Court in

the popular will be reinstated and the courts misapprehension be set aside). For books against changing the judicial system, see Nicholas Murray Butler, Why Should We Change Our Form of Government? 5 (1912) (claiming that it would be an insult to representative government "to appeal over the heads of the peoples chosen representatives to the people themselves"); id. at 11 (denying that the representative form of government fails to reflect public opinion); id. at 25 (calling the initiative "the most preposterous and the most vicious" proposal yet); id. at 28 (fearing the whims of the majority); J. Hampden Dougherty, Power of Federal Judiciary over Legislation 6-7 (1912) (commenting that judicial recall would be "so direct a blow at judicial independence that it can be no cure for any evils in the judicial system"); id. at 111 (noting that "[t]he demand for recall springs . . . not so much from doubt of the integrity of the courts as from dislike of their decisions"). 46 William G. Ross theorizes that several factors muted criticism of the Court during this time, including profound public respect for the judiciary and institutional obstacles that impeded the viability of legislation to curtail judicial power. William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937, at 2 (1994). Robert C. Post argues persuasively that the surge in Court activity (and concomitant popular contempt for the Court) was driven by the Courts desire for a return to normalcy after the administrative buildup of the World War and the threat to laissez-faire it engendered. See Robert C. Post, Defending the Lifeworld: Substantive Due Process in the Taft Court Era, 78 B.U. L. Rev. 1489 (1998). 47Hammer v. Dagenhart, 247 U.S. 251 (1918). Equally controversial was invalidation of a taxing measure aimed at the same evil, see Bailey v. Drexel Furniture co., 259 U.S. 20 (1922). 48Ross, supra note ___ at 169. 49Id. at 174. 50Id. at 180. 51 Adkins v. Childrens Hospital, 261 U.S. 525 (1923).

17

United States History.53 The attacks on the Court during this period were sufficiently intense

to draw Chief Justice Taft out to respond.54

The most vehement Court critic of the period was LaFollette, who suggested barring

lower federal judges from striking down laws, and permitting override of Supreme Court

decisions by the usual legislative process.55 LaFollette never formally introduced his proposal as

legislation, but a general declaration in favor of limiting judicial tyranny was part of the

Progressive party platform and court-curbing was an issue in the 1924 campaign.56 Although

LaFollette failed to gain the presidency, his campaign demonstrated significant popular support

for his ideas.57 The attack on the Court sparked a huge publicity campaign on behalf of the

Court,58 and Calvin Coolidge repeatedly came to the Court's defense.59

Coolidge ultimately won the election, and thereafter criticism of the Supreme Court

quieted down. But it would begin again soon enough. The next great wave of criticism would

roll right into Franklin Roosevelts 1937 attempt to pack the Supreme Court.

52The Supreme Court and Minimum Wage Legislation (National Consumers' League, ed. 1925). 53Charles Warren, The Supreme Court in United States History (1922). 54 The Supreme Court and Partisan Passion, N.Y. Times, May 31, 1923, at 14. 55 66 Cong. Rec. 9076 (1922). See also William E. Sweet, Curb the Court!, Survey, May 15, 1923, at 217, 217 (recording the hearty support of the Governor of Colorado to restrict the power of the courts to declare laws unconstitutional). 56 See Current Opinion, Nov. 1924, at 556 (LaFolletes attack on the Supreme Court has drawn more fire from his opponents than virtually any other issue in the Presidential Campaign); see also Our Despotic Courts, Nation, Sep. 24, 1924, at 300 (discussing LaFollette proposal); Our Supreme Court Tyrant or Protector?, Literary Digest, Sep. 20, 1924, at 12-13 (same; summarizing much commentary on the issue). 57 Ross, supra note __, at 283 (noting that one-sixth of the voters were willing to support a candidate who favored a major limitation of the Courts power of judicial review). 58 Conservative propaganda supporting the courts and their role in judicial review included Constitution Day celebrations promoting public awareness of the role of the courts in protecting the people from unrestrained democracy that could threaten their personal and economic liberties. Id. at 233. 59 See Coolidge Sees Constitution or Despotism, N.Y. Times, Sep. 26, 1924, at 1 (advocating the maintenance of the integrity of the judicial system that the individual may be secure in his rights); Coolidge States Views on Issues in Last Big Speech, N.Y. Times, Oct. 24, 1924, at 1 (warning that to give Congress power over the Courts would be equal to giving them the power to destroy the States, abolish the Presidential office, close the courts and make the will of the Congress absolute). Coolidge felt this would make the people subject to all the influences which might be exerted on the Congress by the power and wealth of vested interests on one day, and the passing whim of popular passion on another day. Id. The poor and weak would be trampled underfoot. Id. [L]ife and property, and the freedom of religion, speech and the press, would have very little security. Id.

18

B. Revisionism

Revisionists accept the foregoing events as correct: the attention of Lochner

revisionism is directed primarily at the judicial decisions themselves, not the reaction with which

they were met. In a sense revisionists are united in suggesting that all the rest of us have erred in

focusing unduly on historical events and ignoring the doctrine. The revisionists are not a

monolithic lot,60 but their common project rests on a belief that Lochner era decisions had a firm

basis in established jurisprudential understandings. According to revisionists, or most of them,

the judges of this era get a bum rap because no one has paid sufficient attention to the fact that

what the judges were doing was engaging in a principled exercise to apply existing doctrines,

albeit in a world that was changing around them.

Indeed, the revisionists go a step further, and claim that everything we are taught to

believe about this era is winners history.61 Lochner revisionists see the events from 1890 to

1937 as one long ride in which Progressive scholars and politicians battled the courts. When

Progressives prevailed after the Court-packing fight of 1937, they then settled in to write their

version of what happened. According to revisionists, that version, and the lessons we

commonly take from it, evidently only can be maintained if one ignores what judges actually

were doing, in favor of what the Progressive era winners described them as doing.

Revisionists insist Lochner era judges were not engaged as the conventional story

would have it in a exercise of imposing their own class and political preferences on the law.

60 For another review of revisionist perspectives see Mary Cornelia Porter, Lochner and Company: Revisionism Revisited, in Liberty, Property, and Government, supra note __, at 11. 61 See James W. Ely, Jr., Reflections on Buchanan v. Warley, Property Rights, and Race, 51 Vand. L. Rev. 953, 967 (1998)[hereinafter Ely, Reflections on Buchanan] (suggesting that every aspect of [the substantive due process] tale is suspect and that [t]he dire legend of substantive due process was invented by scholars associated with the Progressive movement in order to further their regulatory agenda). See also White, Holmess Lochner Dissent, supra note __, at 123-24 (describing the now conventional account as launched in the late 1930s in order to strip the liberty of contract doctrine from its foundationalist moorings and characterize its proponents as reactionaries resisting modern social

19

The conventional story errs, revisionists explain, in claiming that Gilded Age and Progressive-

era judges read into the Constitution their own probusiness, antilabor biases when, in fact, they

were faithful, heroically so, to the reigning constitutional ideology of limited government and state

neutrality.62 Or, as Bruce Ackerman has argued:

It is anachronistic for the modern myth of rediscovery to portray the Lochner Court as if it were abusing the idea of constitutional interpretation by imposing its idiosyncratic and reactionary views on a polity yearning for the New Deal. Like the courts of the early republic, the Lochner Court was exercising a preservationist function, trying to develop a comprehensive synthesis of the meaning of the Founding and Reconstruction out of the available legal materials.63

Revisionists tell essentially two stories of doctrinal fidelity.64 First, some revisionist

scholars maintain that the Lochner Courts defense of property rights had a firm basis in history,

both as to the nature of the specific rights protected and as to the broader tradition of invoking

the Constitution to limit the powers of political bodies.65 Scholars who advance this thesis (and

some draw from both strains) may be called rights revisionists.

Attracting far more attention is the second strain of revisionism. These scholars defend

Lochner era jurisprudence as consistent with another long-standing tradition of invalidating

legislation designed to relieve inequalities in the industrial marketplace). 62 Rowe, supra note __, at 239. 63 Ackerman, Foundations, supra note __, at 101. 64 Somewhat at the nexus is a more general statement of the legacy of Populist-Progressive era judges as devoted to liberty. This is Owen Fiss thesis in his Holmes Devise volume on the Fuller Court. In a discussion that touches on aspects of the rights and police power theses, Fiss concludes: My claim is that this is a misunderstanding and that the Fuller Court should be understood as an institution devoted to liberty and determined to protect that particular constitutional ideal from the social movements of the day. Fiss, supra note __, at 12. 65 See Samuel R. Olken, Justice George Sutherland and Economic Liberty: Constitutional Conservatism and the Problem of Factions, 6 Wm. & Mary Bill of Rights J. 1, 9 (1997) (Supreme Court Justice George Sutherland reflected a conservative judicial tradition in which judges invoked constitutional limitations to restrain political factions and preserve individual economic liberty); Siegan, supra note ___, at 111 (suggesting that in expanding the due process concept, the Justices stated they were not intruding on the legislative function but were enforcing the constitutional limit on the power of government to diminish the right of contract.); Sunstein, supra note ___, at 1703 (Far from making judicial decisions depend on the reasons for government action, such constraints create a shield of private autonomy that operates regardless of the end the government is trying to achieve); Siegel, supra note ___, at 686 (If the old historiography [of the Fuller Court] presented them all as advocates of business enterprise, the new

20

class or special interest legislation (as opposed to legislation adopted to promote the public

or general welfare).66 Drawing from themes present at the founding, as well as from

antebellum and late nineteenth century jurisprudence, these revisionists argue it was well

established that government only could legislate for public purposes or the public good.

Legislation that benefited just one class was considered invalid. Labor legislation, they argue,

was particularly suspect in light of the free labor principles that evolved from antislavery

arguments of the nineteenth century.67 These latter scholars may be called police power

revisionists, because the heart of their argument is that despite the conventional storys focus on

the Lochner era decisions as improperly creating constitutional economic rights that did not

exist, in fact those decisions primarily were about the limits on the police power, and particularly

about this class legislation prohibition.

Given that the revisionist project has been underway for some time,68 it comes as no

surprise that revisionists differ not only on the substance of the project, but on its normative

presents them all as protectors of liberty.). 66 See Gillman, supra note __, at 7 (states that the courts were adverse, not to all economic regulation, but only to a particular kind of government interference in market relations that promoted only the narrow interests of particular groups or classes rather than the general welfare); Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1703 (1984) (If a measure enacted by the government was not a proper exercise of the police power under common law standards, it was impermissible under the due process clause as a naked preference for one group at the expense of another.). Melissa L. Saunders corroborates the class legislation revisionist effort, but with the goal of revising equal protection law. See Melissa L. Saunders, Equal Protection, Class Legislation, and Colorblindness, 96 Mich. L. Rev. 245 (1997). 67 For an excellent description of the conflict between the formalistic jurisprudence that was used to uphold slavery and the alternative antislavery jurisprudential views, see William E. Nelson, The Impact of the Antislavery Movement Upon Styles of Judicial Reasoning in Nineteenth Century America, 87 Harv. L. Rev. 513 (1974). In the postbellum era, antislavery ideas appeared in many court opinions. See id. at 557. For example, William Howard Taft wrote that the worker had an inalienable right to bestow his labor where he will. Id. (quoting Toledo, A.A. & N.M. Ry. v. Pennsylvania Co., 54 F. 730, 737 (C.C.N.D. Ohio 1893)). See also William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Guilded Age, 1985 Wis. L. Rev. 767, 783 (1985) ([T]he abolitionist talked about the freedom of the Northern worker in terms of self-ownership, that is, simply not being a slave, being free to sell his own labor.); Olken, supra note __, at 26 (stating that the premise that everyone has a fundamental right to her own labor is [d]erived in essence from the common law aversion to special privileges and the Jacksonian notion of equality). 68 Although the revisionist bandwagon (see White, Constitution, supra note __, at vii) has been picking up momentum in recent years, early revisionism can be found in the late 1960s and early 1970s. See Loren Beth, The Development of the American Constitution, 1877 1917 (1971); Alan Jones, Thomas M. Cooley

21

implications as well. Much of the early work, such as that by Loren Beth, Alan Jones, Charles

McCurdy, William Nelson, or Mary Cornelia Porter, claims no end but that of history, i.e., to

recover a lost past, to provide a fuller and more accurate understanding of what was taking

place at the time. Thus one might say, as did McCurdy in his impressive piece on the roots of

the liberty of contract doctrine, that his task was largely descriptive rather than explanatory,

and devoted to recording the habits and thought of action that gave Lochnerism a particular

configuration so that we might understand those habits were deeply imbedded in the

American consciousness well before the liberty of contract entered American constitutional law

in 1886.69 The claims of these early authors might prove on examination to be correct or in

need of their own revision, but the endeavor was what it claimed to be: historical in flavor and

approach.70

Perhaps it was inevitable, however, that the revisionist project would move into

normative hands. Not content simply to recover a more nuanced understanding of what

occurred at the turn of the century, scholars began to draw lessons from the revisionist look at

and Laissez-Faire Constitutionalism: A Reconsideration, 53 J. Am. Hist. 751 (1967). 69 Charles W. McCurdy, The Roots of Liberty of Contract Reconsidered: Major Premises in the Law of Employment, 1867-1937, 1984 Y.B. 20, 24 (1984). See also Mary Cornelia Porter, That Commerce Shall Be Free: A New Look at the Old Laissez-Faire Court, 1976 Sup. Ct. Rev. 135, 145 ([W]ithout judgment as to what the Court should, or should not, have done, it is from this unique Commerce Clause perspective that substantive due process should be understood.). Nelsons important work on the free-labor ideology is devoid of any normative claims. See Nelson, supra note __. 70 Two of the earliest authors cited for being at the forefront of the revisionist effort do not really deserve to be lumped with subsequent revisionism. Alan Jones his tory of Cooleys thought and Loren P. Beths magisterial review of constitutional developments at the turn of the century are wonderfully-done pieces of intellectual history. See Jones, supra note __; Beth, supra note __. But Jones, although claiming to examine the assumption of Progressive historiography that American constitutional law has been anxiously preoccupied with the judicial protection of property rights, Jones, supra, at 752, really focuses only on Cooleys thought, and in doing so may persuade most that Cooley does not deserve to have been adopted as the banner figure of laissez-faire constitutionalism. See, e.g., id. at 762-63 (discussing misunderstanding of Cooleys thought and providing more fine-grained analysis). Similarly, Beth can hardly be called a revisionist historian at all. Although he unquestionably presents the events of constitutional history in a more balanced way than the conventional story might, his book is from start to finish consistent with that storys major premises. See, e.g., Beth, supra, at 143 (discussing discretion in judges hands); id. at 147 (denying any coherent vision to Supreme Court commerce decisions); id. at 185 (describing results in cases as Supreme Courts familiar pattern of favoring employers at the expense of employees).

22

Progressive era jurisprudence. Those lessons, it turns out, call into question what the

conventional story has taught for the last half century.

The most important implications of revisionism have to do with the proper role of

judicial review. Even here, however, there are distinctions to be drawn. The goal of the

revisionist effort in some quarters still is relatively modest: simply to take the sting out of an

apparently widespread belief that constitutional judging is (or was) all judicial will and no

law. Scholars such as Howard Gillman turned revisionist to respond to the attitudinalism,71

which claims that judicial votes reflect essentially nothing more than judicial ideology. Thus,

Gillman hoped

to encourage a renewed appreciation of the extent to which judicial behaviorthat is, writing opinions and making decisionsmay be motivated by a set of interests and concerns that are relatively distinct from the preferences of particular social groups, the policies prescribed by particular economic theories, or the personal social and political loyalties and sympathies of individual judges.72

Similarly, scholars such as Barry Cushman (whose primary project has been the New Deal era)

sought to discount external or behavorial explanations, i.e. that those that claim external

events and pressure on judges explain jurisprudential transformation.73 The project of these

revisionists was to demonstrate that the doctrine in fact played a role during political times, that

fidelity to law could and did decide cases.

But once the findings of the revisionist project reached the hands of other scholars

(principally but not exclusively those in the legal academy), revisionism was taken to have more

71 See Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model (1993). 72 Gillman, supra note __, at 11. 73 Cushman, supra note ___, at __. G. Edward White follows in Cushmans shoes in attacking the behavioralist model of judging, but ultimately he comes to a more normative claim for what should replace it. See White, Constitution, supra note __, at 782 (decrying inability to imagine a world in which legal actors could approach their experience without holding to behavioralist theories of law, judging, and constitutional interpretation.).

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direct normative lessons to teach. Some of those taking a normative bent such as James Ely,

Stephen Siegal or G. Edward White were historical revisionist scholars themselves, in that

they too had done significant historical work recovering understandings of the centurys turn.74

Others simply piggybacked on the historical work that had been done.75

Common to all these latter revisionists is a normative goal of legitimizing judicial review

and freeing it from constraints the conventional understanding was seen to impose.76 For

example, Rebecca Brown relies on revisionism to suggest a strong offensive on behalf of

vigorous liberty protection under the Fourteenth Amendment.77 Similarly, Owen Fiss says:

Lochner stands for both a distinctive body of constitutional doctrine and a distinctive

conception of judicial role: One could reject one facet of Lochner and accept the other . . . we

may wish to criticize its substantive values and yet leave unimpeached its conception of role.78

And Gary Rowe sums up the entire revisionist project: By freeing us from excessive worries

about the legitimacy of judicial review, revisionism promises to direct our attention to more

fruitful and creative jurisprudential endeavors. It makes possible, at long last, constitutional

thinking that need not perform strenuous backflips to distance itself from Lochners error .79

Of course, the liberty that revisionists believe deserves vigorous protection turns out

74 See Ely, The Chief Justiceship, supra note __; James W. Ely, Jr., The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Comm. 315 (1999); Siegal, supra note __; White, Constitution, supra note __. 75 No criticism is intended here, of course: there is no need to reinvent the wheel at every turn. And legal scholars are famous scavengers. See Barry Friedman, The Turn to History, 72 N.Y.U. L. Rev. 928, 958 (1997). Yet, there is real danger in taking historical work and turning it to normative ends, as the lessons of history may be far more complicated or elusive than they appear in legal scholarship. 76 See, e.g., White, Holmess Lochner Dissent, supra note __, at 128 (seeking to strip away the pejorative overtures of the term Lochnerizing in contemporary constitutional jurisprudence); Rowe, supra note __, at 235 (explaining that Fiss, Gillman and Horwitz seek to reopen the settlement of 1937 in order to build a new foundation for our constitutional order that is less skeptical of courts and more friendly to rights). 77 Brown, supra note __, MS at 1. 78 Fiss, supra note ___, at 19. 79 Rowe, supra note __, at 242.

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to depend in part upon ones own ideology.80 Scholars on the right seek nothing less than to

rehabilitate Lochner,81 emphasizing the essential correctness of the Lochner Courts

recognition of property rights.82 The world they envision would be a significant shift from post-

New Deal understandings. Other scholars argue the specific Lochner holding itself was wrong

because the Court failed to decide the cases of the era in the context of radically changed

economic conditions, but that the tradition of upholding rights against popular legislation was an

established one.83 These legal liberals have . . . sought to undermine the commonly asserted

80 See Mary Cornelia Porter, Lochner and Company: Revisionism Revisited, in Liberty, Property, and Government, supra note __, at 11, 17 (summarizing some of these positions). Porters piece nicely captures the fact that charges of Lochnerizing and use of revisionist understandings both vary case-to-case depending on ideology. Compare id. at 12-17 (discussing traded charges of Lochnerizing as Courts decisions shift ideologically). 81 See supra notes __, __. 82 See, e.g., Ely, Reflections on Buchanan, supra note ___ at 973 (the intellectual quandary over substantive due process review would be eliminated by again extending meaningful judicial scrutiny to property rights); Richard A. Epstein, The Mistakes of 1937, 11 Geo. Mason U.L. Rev. 5, 7 (1988) (A robust constitution therefore must also sek to entrench individual rights against all levels of the state because we know that if usable property rights are not made permanent and definite, then political actors will have far greater power over the fortunes of their citizens ); Alan J. Meese, Will, Judgment, and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause, 41 Wm. & Mary L. Rev. 3, 11 (1999) (If the Due Process Clause contains a substantive component, the dominant account does not provide a valid explanation for the differential treatment of economic rights and so-called personal rights, such as the right of privacy.); Siegan, Rehabilitating Lochner, supra note ___ at 454 (approving of Lochner as an appropriate function for the Court under the due process clause); cf. White, Constitution, supra note ___, at 788 (seeking to cabin New Deal commitments in time so as not to perpetuate a disabling nostalgia for an idealized model of constitutional governance). But see Gillman, supra note ___, at 11 (while agreeing with conservative polemicists that the judiciary during the Lochner era was being faithful to a well-established constitutional tradition, he also contents that the judiciarys stubborn attachment to what historical participants perceived to be an increasingly anachronistic jurisprudence eventually led to a crisis in American constitutionalism). 83 Professor Olken makes this point when he states that for Lochner era judges, the appropriate limits of local economic regulation emanated from longstanding concerns about the vulnerability of individual rights in a democratic republic . . . [P]assionate commitment to equal operation of the law informed judicial decision making [,] but Justice Sutherland and others mistakenly construed industrial conditions of the past. Olken, supra note ____, at 88. Edward White follows up on this view of Justice Sutherland applying a consistent police power jurisprudence and contrasts it with Justice Hughes opinion in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), where Hughes [suggested] that when economic conditions changed, the calculus of police power due process cases could change as well. White, Holmess Lochner Dissent, supra note ____, at 122. Sutherland, who dissented in West Coast Hotel, equated due process with fundamental principles that do not change over time. See id. Hughes, on the other hand, read liberty in the due process clauses [to mean] . . . regulation which . . . is adopted in the interest of the community. Id. at 123 (quoting West Coast Hotel, 300 U.S. at 393). See also Fiss, supra note ____, at 19-20 (arguing that the Lochner Court sought to protect the constitutional ideal of liberty but the court saw new forms of political and social organization as a threat); Cf. Soifer, supra note ____, 250-52 (criticizing the inconsistent approach of the Supreme Court to protecting the rights of some groups but ignoring others).

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skepticism toward a strong judicial role,84 and support a more activist liberal jurisprudence.85

Owen Fiss explains that one may, with perfect consistency (though not without a touch of

bravado), remain attached to Brown [v. Board of Education] and its robust use of the judicial

power to further the idea of equality, yet be happy that Lochner lies dead and buried.

Finally, the class legislation thesis also serves as a basis for more intrusive judicial

review, in this case of special interest legislation,86 a concern brought to the fore by modern

public choice theory.87 Scholars taking this approach suggest the Lochner era decisions

provide justification for judicial scrutiny of legislation responsive to interest group pressure.88 As

Jonathan Macey recently explained, scholars as diverse as Cass Sunstein, Jerry Mashaw and

Bernard Siegan share the view that the problems posed by interest groups justify more

intrusive judicial review the kind of review afforded by the Fuller Court.89

84 Rowe, supra note __, at 224. 85 See, e.g., Rebecca L. Brown, The Fragmented Liberty Clause, 41 Wm. & Mary L. Rev. 65, 65-90 (urging a strong offensive charge on behalf of vigorous liberty protection under the Fourteenth Amendment and criticizing the Courts current approach which has added only one right, abortion since Griswold); Gillman, supra note __, at 205 (Conservatives have used the lore of Lochner as a weapon in their struggle over the modern Courts use of fundamental rights as a trump on government power. If nothing else I hope this study helps remove that weapon from their hands.). 86 See Sunstein, supra note __, at 1730-32. 87 For a general discussion of how interest groups influence the political process, see Daniel A. Farber & Philip P. Frickey, Law and Public Choice (1991). But see Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 Yale L.J. 31 (1991) (arguing that stricter judicial review that increases the transaction costs of legal change will provide a relative advantage to interest groups). 88 Michael Les Benedict states that the general proposition that the powers of government could not be used for the benefit of . . . one group of citizens at the expense of the rest was a fundamental principle even prior to Lochner. Benedict, supra note ____, at 323. See also Siegan, supra note ____, at 278-82 (discussing special-interest legislation that is often embodied in delegations to agencies as a flaw in the legislative process that should be subject to judicial review). But see Olken, supra note ____, at 88 (arguing that the problem with staunchly avoiding class legislation is that it prevented regulations that were needed to address an evolving economic system). Sunstein points out that the Lochner court found the statute to have pursued impermissible ends what we may call raw interest-group transfers. Cass R. Sunstein, Lochners Legacy, 87 Colum. L. Rev. 873, 878 (1987). Thus, the statute was invalidated as an interest-group transfer, reflecting nothing more than political power. Id. 89 Jonathan R. Macey, Public Choice, Public Opinion, and the Fuller Court, 49 Vand. L. Rev. 373, 383 (1996) (reviewing James W. Ely, The Chief Justiceship of Melville W. Fuller, 1888-1910 (1995)). Cass Sunstein, for one, sees the error of Lochner in the Courts unabashed acceptance of constitutional neutrality as to the results of market and common law ordering, and argue that the overruling of Lochner undermines suppositions about constitutional limitations on the redistributive powers of the modern state. See Sunstein, Lochners Legacy, supra note __, at 875. See also Susan Bandes, The Negative Constitution: A

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III. CONVENTION MEETS REVISION

To the extent the revisionist project is normative and for many revisionists it is its

central message is one of more aggressive judicial review. This message emerges from the

recovered understanding of the Lochner era. According to revisionists, Lochner era judges

were acting faithfully in a long tradition of protecting liberty and avoiding the ill effects of class

or special interest legislation. Once that tradition is recovered, Lochner era judging is

legitimized, and judges may cast off their mantle of restraint woven for the conventional

understanding of Lochner, and actively take the field to protect liberty (however defined) and

scrutinize legislation for improper motives.

Advancing these normative claims, revisionists necessarily call into question every

aspect of the conventional story. For over half this century, the sins of judges during the

Lochner era were clear, as was the perception of the pervasiveness of judicial misconduct.

First, [t]he received wisdom is that Lochner was wrong because it involved judicial activism:

an illegitimate intrusion by the courts into a realm properly reserved to the political branches of

government.90 Second, the tool for judicial usurpation was the (mis)reading into the

Constitution of rights not clearly set out there, such as the liberty of contract, the basis of the

Lochner decision itself.91 Third, the basis for the misreading was explained as a judicial

preference for laissez faire constitutionalism, and a desire to protect monied interests, over

Critique, 88 Mich. L. Rev. 2271 (criticizing the Courts current reading of the due process clause that imposes no affirmative obligations on the Government.) 90 Sunstein, Lochners Legacy, supra note ___ at 874. Accord Gillman, supra note ___, at 3 ([C]ritics cha