Plessy versus Lochner: The Berea College Case

Abstract

Plessy versus Lochner: The Berea College Case DAVID E. BERNSTEIN1 Legal scholars and historians have often claimed to find intellectual affinities between the U.S. Supreme Court’s notorious opinions in Plessy v. Ferguson2 and Lochner v. New York.2 In Plessy, the Court upheld a law requiring private railroads to enforce segregation, while in Lochner the Court invalidated a maximum hours law for bakers. Bruce Ackerman asserts that Plessy had its intellectual roots “in the laissez-faire theories expressed one decade later in cases like Lochner.In support of his thesis, Ackerman relies on the Plessy Court’s statement that if the two races are to mingle, it must be “the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals.”5 Brook Thomas also blames the Plessy ruling on laissez-faire ideology. He argues that lais­ sez-faire theory led the Court to seek to encourage the “natural” forces of segregation.6 Owen Fiss, meanwhile, contends that the Supreme Court upheld the segregation statute at issue in Plessy because it “codified and strengthened existing social practices.” The Court objected to the statute at issue in Loch­ ner, meanwhile, because that law “tried to re­ verse social practices that were driven by mar­ ket competition.”7 Cass Sunstein makes the similar argument that Lochner and Plessy are consistent in that both “relied on a conception of neutrality taking existing distributions as the starting point for analysis.”8 Derrick Bell finds that the decisions are congruous because they both “protected existing property and political arrangements, while ignoring the dis­ advantages to the powerless caught in those relationships: the exploited whites (in Loch­ ner) and the segregated blacks (in Plessy).”9 Recently, several commentators have per­ suasively challenged the purported affinities between Plessy and Lochner. Michael Klarman , for example, asserts that “[t]he outcome in Plessy is mainly attributable to the virulent racism ofthe Gilded Age, not to the era’s skep­ ticism of activist government.”10 Richard Epstein, meanwhile, makes the bolder revi­ 94 JOURNAL OF SUPREME COURT HISTORY sionist argument that the holdings and reason­ ing ofPlessy and Lochner are at odds. Accord­ ing to Epstein, “[t]he statute sustained in Plessy was flatly inconsistent with lais­ sez-faire principles.... By no stretch do Plessy and Lochner represent different applications of a common jurisprudence. Plessy repre­ sented the expansionist view of the police power that Lochner repudiated.”11 Mark Tushnet also argues that Plessy and Lochner were jurisprudentially at odds, because Plessy was a statist opinion while Lochner reflected a far more libertarian viewpoint.12 Finally, I have argued that Lochner repre­ sented a triumph of “traditional” jurispru­ dence. This jurisprudence required courts to enforce the limitations on government power enshrined by the Constitution’s Framers and ratifiers, regardless of public opinion, short­ lived enthusiasms, and social science evi­ dence.13 By contrast, Plessy relied at least in part on racist social science, public opinion fa­ voring segregation, and a negation ofthe Four­ teenth Amendment’s clear distinction between state and private action. Consistent with Ep­ stein and Tushnet’s observations, I also note that Plessy reflected a view that the results of unregulated market processes are somehow unnatural and should therefore be corrected by state action, a view not reflected in Lochner.14 Just three years after it decided Lochner, the Supreme Court confronted the conflict be­ tween libertarian and traditionalist Lochnerism and statist and sociological Plessyism in Berea College v. Kentucky.15 Berea College involved a private, integrated college’s consti­ tutional challenge to a Kentucky law requiring segregation in private schools. If Lochner and Plessy were intellectually entwined, one would expect that the state would have relied on both opinions to support the constitutional­ ity of the segregation law, while the college would try to assert that neither opinion ap­ plied. Instead, Berea College challenged the law on constitutional grounds, relying on Lochner and allied doctrines in arguing that the law violated the rights of liberty and prop­ erty guaranteed by the Fourteenth Amend­ ment. Kentucky, meanwhile, relied on Plessy and the purported public interest in preventing miscegenation—supported by contemporary social science evidence—in defending the law...