Rehabilitating Lochner: A Study in the Limitations of a Constitutional Revolution

Abstract

George Mason Professor David Bernstein's book, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, places the so-called Era back into its proper context and shows how the longstanding treatment of the case and era as part of a systematic attempt to shape the nation's economy according to laissez-faire theory of economics needs to be reexamined. Lochner does not belong in the anticanon of constitutional law, but should be treated, as Bernstein says, as a normal, albeit controversial, case. Both the Lochner case itself and the era, extending from Allgeyer v. Lousiana in 1897 to Pierce v. Society of Sisters in 1925, were relatively modest as opposed to revolutionary in their character. Bernstein also shows that the principle articulated by the Lochner majority was applied to a number of other areas regarding individual rights, most significantly in the 1917 case Buchanan v. Worley in which an unanimous court struck down a segregation ordinance in Louisville, Kentucky that restricted the sale of property to African-Americans and in so doing, repudiated Plessy v. Ferguson's presumption that segregation laws, including those that infringed on civil rights, were reasonable. Cases involving state laws limiting the working hours of women were frequently upheld against liberty of contract challenges after Lochner, with Lochner majority member Justice McKenna frequently writing and invoking the statistics cited in briefs before the court, often from Louis Brandeis, on the effects of work on women. Cases like Muller v. Oregon and Bunting v. Oregon were more typical, while Lochner and later Adkins v. Childrens' Hospital in 1923, which struck down a minimum wage law for women in the District of Columbia, were outlier cases. Lochnerian moderates like KcMenna dominated the Lochner court and hinged primarily on the distinction between the regulation of hours versus wage fixing laws that tried to set minimum or maximum wages, as well as the special nature of women's work. These moderate Lochnerians believed the Court should engage in meaningful review of regulatory legislation that interfered with the liberty of contract to ensure it was a constitutionally valid use of state police power, but they still were largely deferential to the whims of state regulation. Lochner was a vote for a nominal limit on the seemingly unlimited reach of the police power.