Actually, the decision flowed from bedrock American doctrine: The individual possesses inalienable rights — here, liberty of contract — that cannot be legislated away for casual or disreputable reasons. Hence progressives’ frequent denunciations of “individualism” — allowing individual rights, particularly those of property and contract, to impede the administrative state’s regulation of society, immune from judicial review.
Bernstein recounts how liberty of contract was invoked — sometimes successfully, usually not — against legislatures that declared women unsuited to practice law or limited women to working fewer hours than men. Labor unions representing male bartenders produced Michigan’s law banning female bartenders.
George Will
Will writes a twice-a-week column on politics and domestic affairs.
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Other laws favored by progressives defended family men from “destructive” competition with female workers who, by working outside the home, “weakened the race.” A feminist correctly argued, on Lochner’s natural rights grounds, that restricting women’s liberty of contract regarding hours of work “amounts to confiscation of whatever amount would have been earned during the forbidden hours.” In 1926, Georgia’s Supreme Court cited Lochner’s affirmation of liberty of contract to overturn a law prohibiting black barbers from cutting white children’s hair.
Lochner was successfully invoked against laws enforcing residential segregation by race but unsuccessfully against laws banning miscegenation. Many progressives supported such laws as enabling government to regulate racial friction. And after the triumph of progressive jurisprudence during the New Deal, courts capitulated to legislatures in the name of democratic deference to what Holmes called the “dominant opinion.” It became mostly futile to invoke Lochner’s logic — that individual rights often trump government’s powers to boss people around.
Long execrated by most law professors, Lochner is the liberals’ least favorite decision because its premises pose a threat to their aspiration, which is to provide an emancipation proclamation for regulatory government. The rehabilitation of Lochner is another step in the disarmament of such thinking.
georgewill@washpost.com
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