Resurrecting Lochner


Besides a fabulous name, Rufus Peckham is remembered in American jurisprudence for penning one of the most notorious decisions in the era between Reconstruction and the New Deal. Lochner v. New York invalided state laws regulating maximum hour laws. Something called “liberty of contract” existed in what William O. Douglas would later (in)famously call the penumbras and emanations of the Fourteenth Amendment: SCOTUS assumed for the purposes of law that labor and management as equal partners could negotiate without governmental interference. Besides, bakers have it better than most, according to Peckham: “The average bakery of the present day is well ventilated, comfortable both summer and winter, and always sweet smelling.” Justice Oliver Wendell Holmes, Jr., not known for protecting those unblessed by destiny and birth, threw up his hands and wrote the most famous dissent in Supreme Court history: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”

Many citizens still have trouble recognizing that an employee and its employer do not bargain on equal term. There is some truth to this dictum. If I don’t like my employer’s starting salary and job responsibilities, the employer is under no obligation to change them for my sake. However, the employer is required to follow minimum wage laws, maintain a drug free workplace, offer overtime and bathroom breaks, observe occupational safety standards, and so on. Until the New Deal, however, American businesses observed the Latin phrase known as caveat emptor — buyer beware. Worker beware.

Brian Beutler explains how young lawyers, unmoored from thirty years of post-Warren Court conservatism, define themselves as radicals. I’ve heard whispers about a Lochner revival since the publication of David E. Bernstein’s Rehabilitating Lochner, which I haven’t read. It continues:

To anyone who lived through Bush v. Gore it might seem strange that a judiciary as conservative as the Rehnquist and Roberts Courts would rule for the government so regularly. But the dominant strain of conservative legal thought for the last half-century has largely been shaped by the right’s backlash to the social revolution stemming from the 1960s and the Warren and Burger Courts’ use of the Constitution to further progressive ends like desegregation and access to abortion. For conservatives, the main villain of the last 50 years has been creeping liberal judicial activism and a willingness to overturn legislative action. Conservative legal scholars and jurists like Robert Bork held that judges should refrain from projecting personal or political values into their judicial opinions. This principle became a cornerstone of traditional conservative legal thought, but it effectively created a presumption that democratically enacted laws are constitutional…

Lawyer Clark Nelly has other plans:

“Ten to 15 years ago, conservatives who were in positions of influence—educating young lawyers, or in a position to hire them to politically desirable positions—were unified by what you might call Borkian restraint, or knee-jerk deference,” Neily said. “What has really changed in the last four or five years is a real skepticism, particularly but not exclusively among young law students, toward this kind of acquiescence to whatever government does.”

The election of a black president named Barack Hussein Obama has not acted as a restraint on their efforts. The election of a Hillary Rodham Clinton or Jeb (!) Bush wouldn’t either, according to one of the firebrands:

Conservatives, Barnett said, “have to decide, ‘Well, why am I furious? What am I furious at? … They put John Roberts on the court. I didn’t put him on the court. Bill Clinton didn’t put him on the court. George Bush put him on the court, and he was considered by the Ted Cruzes of this world as a superstar, and then look what he does. There’s something wrong with this picture.”

There’s something wrong with this picture.

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