Legal Commentary

Life Imitates Rehabilitating Lochner

By David Bernstein

Rehabilitating Lochner, Conclusion:

The longstanding myth of a wildly activist, reactionary Supreme Court imposing a grossly unpopular laissez-faire ideology on the American people on behalf of large corporate interests?with little concern for precedent, constitutional text, or individual or minority rights?is far removed from historical reality.
The academics who invented the prevalent mythology likely sought, consciously or not, to justify their preferred political outcomes. They promoted the notion that the liberty of contract cases had no origins in American tradition or in American constitutional thought, and were instead simply stalking horses for the economic elite?s interests. This allowed advocates of the revolutionary New Deal and post-New Deal changes in constitutional interpretation to lump all the decisions of the pre-New Deal Supreme Court together.
Scores of books and articles state or imply that there is no significant difference between the ?Lochner era? commerce clause cases, due process cases, non-delegation cases, and so on. Rather, they purportedly were all different manifestations of the Court?s reactionary ?laissez-faire? jurisprudence. Conflating these doctrines allowed legal scholars?and, for that matter, Supreme Court Justices?to elide debate over the meaning of the relevant constitutional provisions, and to reject out of hand the notion that the Old Court may have interpreted some of them correctly as a matter of text and history.
In short, supporters of the post-New Deal constitutional order?lawyers, historians, and political scientists?promoted the traditional Lochner story to shore up that order against residual, or future, opposition.

Commentary on today?s Obamacare decision:

Frank Pasquale, Concurring Opinions: ?If the Supreme Court affirms it, we are well on our way to a new Lochner era.?

Nick Baumann, Mother Jones: ?Drastically limiting the scope of the Constitution?s commerce clause (as Hudson would do) is the slippery slope to the libertarian paradise. Almost every meaningful action the federal government takes with regard to the economy rests on the commerce clause. In the past, the Supreme Court has read that clause to be incredibly constrained. During the Lochner era (1897?1937), the court routinely struck down federal laws regulating working hours, child labor, and minimum wages as inappropriate interventions in individuals? ?right of contract.?? [Editor: By the way, just about every word of the last sentence is false.]

H/T Josh Blackman

UPDATE: A Daily Kos diarist manages to repeat and add to Baumann?s errors:

As Mother Jones points out, this sort of libertarianism run amok has cropped up in the past, during the so-called Lochner era, when the conservative Supreme Court would routinely rule against FDR?s New Deal legislation on minimum wage, working hours, and child labor as a horrific violation of the sacrosanct ?right of contract?. For as we all know, twelve-year old children should have an inviolable right to work 80 hours a week in the coal mines!

Full post as published by The Volokh Conspiracy on December 13, 2010 (boomark / email).