The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s

During the so-called “Lochner era,” which lasted from approximately 1905 to 1937, the Supreme Court was relatively sympathetic to claims that government regulations violated liberty of contract purportedly protected by the Fourteenth Amend-ment’s Due Process Clause. Despite sporadic revisionist dissent, since New Deal jurisprudence took hold in the late 1930s the Lochner era has been widely considered by students of the Court to be a disgraceful period in its history.

Indeed, the ghost of Lochner continues to haunt American constitutional law. Supreme Court justices consistently use Lochner as an epithet to hurl at their colleagues when they disapprove of a decision declaring a law unconstitutional. Conservative justices accuse their colleagues of Lochnerizing when abortion restrictions are curtailed, while liberal justices return fire when property regulations are declared unconstitutional under the Takings Clause, and when the Court uses the Commerce Clause to invalidate Congressional edicts. One common criticism of Lochnerian jurisprudence, that constitutional protection of liberty of contract was essentially made up by willfully political or formalistic judges, has been persuasively rebutted by revisionist scholars. These scholars–including political scientists, historians, and law professors–argue that Lochnerian jurists genuinely tried to enforce what they saw as the mandates of the Fourteenth Amendment. Lochnerian judges relied primarily on two long-standing American intellectual traditions that heavily influenced American conceptions of liberty and the proper role of government in the postbellum era when the Fourteenth Amendment was framed: the abolitionist natural rights and “free labor” tradition, and opposition to “class legislation”–legislation that aided politically powerful interest groups at the expense of the public at large. This revisionist viewpoint seems well on its way to becoming the conventional wisdom among legal scholars.

Other criticisms of the Lochner era, which are described below, have proved more enduring. In order to investigate the basis for these criticisms, Phillips did what someone should have done decades ago–he actually read and categorized all two hundred or so cases generally categorized as coming under Lochner’s rubric. Phillips concludes that the Lochner era is shrouded in myth. Myth 1: the Lochner-era Court was practically out of control; it struck down approximately two hundred economic regulations on substantive due process grounds. Phillips concludes that only sixty of these cases fit the standard economic substantive due process model. (The oxymoronic phrase substantive due process is itself an anachronism, not achieving common currency until well after the Lochner era ended.) Many of the other cases generally lumped by scholars under the category of substantive due process would today be decided under the Fifth Amendment’s Takings Clause, which had not yet undergone its modern doctrinal development. Other economically oriented cases were decided under the equal protection clause, while yet other substantive due process cases did not involve economic issues at all. Moreover, the Court upheld far more laws challenged under the due process clause than it invalidated.

Myth 2: Economic substantive due process was a radical innovation supported only by reactionary Justices. According to Phillips, the most progressive justices on the Supreme Court, Brandeis and Holmes, frequently joined the opinions in which their conservative brethren used substantive due process to invalidate economic regulations.

Myth 3: Lochnerian decisions overturned “social legislation” that would have aided the poor and necessitous at the expense of the wealthy and powerful. Phillips demonstrates that the redistributive consequences of the laws that the Supreme Court invalidated were far more complex than the standard myth allows. Indeed, some of those laws clearly would have redistributed wealth upwards by creating monopolies or monopsonies at the expense of consumers, or by restricting entry into an occupation by new workers. Phillips is particularly scathing (and persuasive) in his assessment of Justice Louis Brandeis’s dissent in New State Ice Co. v. Liebmann in 1932. Brandeis objected when his colleagues invalidated an Oklahoma law creating a government-sponsored monopoly in the ice industry, famously arguing that the states, as “laboratories of democracy,” must be allowed to engage in economic experiments. Phillips demonstrates that Brandeis showed a poor grasp of economics in the opinion and was disingenuous in his discussion of the measure’s purpose, invoking Depression-era emergency to defend a statute passed in the middle of the Roaring Twenties.

Myth 4: The Lochner era Court’s reactionary nature is demonstrated by the fact that it limited its concern for “liberty” to “liberty of contract.” Phillips notes that liberty of contract cases were only one application of substantive due process, and not necessarily the most important one. In an era before modern First Amendment and Equal Protection jurisprudence, the Court increasingly invoked “substantive due process” to protect the rights of racial and religious minorities. The Court invalidated on Lochnerian grounds laws requiring housing segregation, laws banning private schools, and other laws that violated civil rights and civil liberties.

Myth 5: The vast majority of the regulations invalidated by Lochnerian decisions served the public interest. Phillips suggests that the consequences of the Court’s decisions have been judged by pro-regulation criteria inherited by historians from Progressive critics of Lochner. Judged from a more objective economic viewpoint, “some of the cases in which it did strike down government action were more justified than is generally believed.” Contrary to libertarian legal scholars such as Richard Epstein and Bernard Siegan, however, Phillips concludes that the Lochner decision itself, invalidating a maximum hours law for New York bakers, was probably incorrectly decided.

Phillips’s revisionism is generally convincing. His debunking of Myth 2 is dubious, however. The fact that Holmes and Brandeis joined many Lochnerian decisions is almost certainly a reflection of a strong norm in favor of unanimous opinions during the Lochner era and does not imply their true assent to these rulings. Even in the few cases in which Holmes and Brandeis used Lochnerian reasoning in opinions they wrote themselves, this more likely reflects their need to build a consensus behind their opinions than their personal viewpoints. Holmes’s and Brandeis’s vigorous dissents in the most important Lochnerian cases, including Holmes’s lone, radical dissent in Lochner itself, better reflect their jurisprudential philosophies.

Broader criticisms can justifiably be leveled at this book. Phillips neglects to attend to some very important issues regarding the Lochner era. For example, many legal scholars suggest a link between the Lochner era’s substantive due process decisions and its equally anti-regulatory decisions reining in the federal govern-ment’s power under the Commerce Clause. Phillips implicitly and without explanation treats these as completely separate lines of cases. Phillips also focuses exclusively on the United States Supreme Court, ignoring the many substantive due process decisions of state and lower federal courts that might shed some light on the nature Lochnerian jurisprudence. Also problematic is Phillips’ treatment of the “Lochner era” as a single era, when historians have shown that the Court grew dramatically more active in invalidating legislation in the 1920s than it had been previously.

Nevertheless, this is an important and interesting book, and one that should be read by anyone with an interest in the Lochner era.

By Michael J. Phillips