Liberal certitudes continue to dissolve, the most recent solvent being a robust new defense of a 1905 Supreme Court decision that liberals have long reviled — and misrepresented. To understand why the court correctly decided Lochner v. New York and why this is relevant to current arguments, read David E. Bernstein’s “Rehabilitating Lochner: Defending Individual Rights against Progressive Reform.”
Since the New Deal, courts have stopped defending liberty of contract and other unenumerated rights grounded in America’s natural rights tradition. These are referred to by the Ninth Amendment, which explicitly protects unenumerated rights “retained by the people,” and by the “privileges or immunities” and “liberty” cited in the 14th Amendment. Progressivism, Bernstein argues, is hostile to America’s premise that individuals possess rights that preexist government and are not fully enumerated in the Constitution. This doctrine stands athwart liberalism’s aspiration to erase constitutional limits on government’s regulatory powers.
George Will
Will writes a twice-a-week column on politics and domestic affairs.
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An 1895 New York law limited bakery employees to working 10 hours a day and 60 hours a week. Ostensibly, this was health and safety legislation; actually, it was rent-seeking by large, unionized bakeries and the unions. Corporate bakeries supported the legislation, which burdened their small, family-owned competitors. The bakers union hoped to suppress the small, non-unionized bakeries that depended on flexible work schedules.
One such was owned by Joseph Lochner, who challenged the law, prevailing in the Supreme Court, 5 to 4. The majority said “clean and wholesome bread” does not depend on limiting workers’ hours: Workers are “in no sense wards of the state,” and there is no evidence that baking is an especially unhealthful profession, so the law was an unconstitutional “interference” with an unenumerated right of individuals, the liberty of contract.
The main dissent radiated progressivism’s statism and paternalism: Government may limit working hours lest workers damage their “physical and mental capacity to serve the State, and to provide for those dependent upon them.” In another dissent, ultimately famous and hugely influential, Oliver Wendell Holmes, whose judicial restraint often expressed his dogmatic majoritarianism, defended “the right of a majority to embody their opinions in law.” He said liberty should not be construed “to prevent the natural outcome of a dominant opinion.”
Princeton’s president, Woodrow Wilson, agreed, dismissing “the inalienable rights of the individual” as “nonsense” inimical to government’s ability to efficiently work its progressive will. So much for the idea that one of the Constitution’s primary purposes is the protection of individual rights against majority tyranny.
Progressives celebrated Holmes’s gift to government of almost untrammeled police powers. He said courts should defer to economic regulations because the Constitution does not “embody a particular economic theory.” Thus began liberals’ distortion of Lochner as expressing the court’s commitment to laissez-faire doctrine.
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