The Lochner court, myth and reality: substantive due process from the 1890s to the 1930s
by Michael J. Phillips
Praeger [bullet] 2001 [bullet] 224 pages [bullet] $72.95 hardcover
Lochner v. New York is an often-mentioned but misunderstood 1905 Supreme Court decision that lends its name to this excellent analysis of constitutional jurisprudence by Michael J. Phillips. Phillips, professor emeritus of business administration at Indiana University, has written probably the best book by a non-lawyer on any aspect of constitutional law, and the best survey of the Lochner line of cases by anyone. This book is a penetrating revisionist history of a key period in our legal history.
Briefly, in Lochner the Supreme Court struck down a New York statute that limited the number of hours bakers could work. The majority held that the freedom to contract for as much work as a man chose was within the "liberty" protected by the Fourteenth Amendment and that paternalistic health and safety rationales advanced by the government did not save the statute. The decision elicited a furious dissent from Justice Oliver Wendell Holmes, who argued that the Court was usurping state prerogatives. "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics," Holmes grumbled. Lochner wasn't the first time the Court had declared unconstitutional statutes that interfered with liberty and property, but that name has been applied to a line of cases in which the Court, employing an approach later dubbed "substantive due process," defended individual rights against government encroachment. That philosophy came to an end during the New Deal, when the Court, with an augmented number of "liberals," upheld coercive New Deal programs. Ever since, law students have heard that Lochnerism was a terrible mistake. Justices like Holmes and Louis Brandeis have been elevated to constitutional deities, while the defenders of individual rights have been pilloried.
Phillips correctly notes that there is a lot of myth in the standard account of the Lochner period. His study of the Court's decisions leads him to conclude that there was nothing like the uniform obstruction of "progressive" legislation that most people believe occurred during that era. Interventionist legislation sometimes lost, but some times it was upheld. Thus the Court doesn't deserve as much blame-or credit-as it is customarily given, depending on your point of view.
More important, Phillips's analysis of the particular decisions leads him to conclude that "some of the cases in which [the Court] did strike down governmental action were more justified than is generally believed." He demonstrates that the statutes in question were largely the sort of counterproductive special-interest legislation that we have come to expect from legislatures. …