In this provocative book, the libertarian legal historian David E. Bernstein recounts a critical moment in the drafting history of Brown v. Board of Education (1954) in which, at the urging of Hugo Black, the opinion's author, Chief Justice Earl Warren, removed references to key pre-New Deal, “Lochner era” substantive due process cases (including Meyer v. Nebraska [1923] and Pierce v. Society of Sisters [1925]) as grounds for the Court's ruling (87). The incident encapsulates a central contention of this book: in the celebrated, post-New Deal liberal rights revolution involving both civil liberties and civil rights, the Supreme Court drew extensively upon the legal principles and practices of the much-maligned (and, supposedly, conservative) pre-New Deal Court. As it was doing so and subsequently, moreover, both the Court and its backers in politics, the judiciary, and academia, systematically expunged the debt from the records of legal development as part of the construction of an overarching narrative of the origins and trajectory of civil rights, civil liberties, and the modern administrative state.
Only later, in the triumphal flush of mid-1960s Great Society liberalism, did these roots slip out in an official Court opinion, in Griswold v. Connecticut (1965)—although Justice William O. Douglas (a Franklin Roosevelt appointee) alluded to “penumbras formed by emanations” from the Bill of Rights instead of the due process clause in deciding the case. This provoked a response by—yet again—Hugo Black, who accused Douglas of obscuring the true grounds for the decision. This doctrinal dust-up trained a spotlight on the “Lochner Era,” a term virtually invented as epithet in Griswold's aftermath by constitutional law professors Gerald Gunther, Laurence Tribe, and John Hart Ely, who inscribed the case (and the era it was said to define) alongside Dred Scott v. Sanford (1857) as a pillar of the contemporary “anticanon” of American constitutional law (7, 116–117).
Although Bernstein concludes the book with an absorbing account of Lochner v. New York's (1905) post-history as scourge, symbol, and signifier, most of the book focuses on the pre-New Deal Court itself, in its own time. In his “rehabilitation” of the case (which, he pointedly emphasizes, is neither an effort to “defend” nor to “restore” the decision's actual legal doctrine) (125), Bernstein seeks to demonstrate the ways in which the real Lochner decision was both typical and atypical of its times. One way in which it was atypical was in voiding (ostensibly) progressive labor regulation aimed at improving working conditions. As others before Bernstein have demonstrated — to apparently little effect — the Court in this period put its stamp of approval on many more regulatory initiatives than it struck down. One way in which it was typical was in drawing upon traditional discourses of limited government and natural rights. Lochner was indeed oppositional in resisting the new frameworks for understanding law being advanced by progressives and sociological jurisprudes (to which Bernstein devotes a chapter). Acting against the notion that majorities should govern, tout court, and that rights were (as Bentham put it) “nonsense upon stilts” (both Felix Frankfurter and Louis Brandeis at one point, we are reminded, advocated repeal of the Fourteenth Amendment), the “conservative” Old Court was willing to void legislation that it believed involved unseemly rent-seeking and “class legislation” (as opposed to the advancement of the collective public good), and sex and race discrimination that violated baseline constitutional standards. Bernstein contends that the natural rights jurisprudence of this era often yielded better results for women and blacks than did the progressive approach, which harbored influential strains of (maternalist) sexism and (bald-faced) racism. These jurisprudential commitments provided the unacknowledged starting point for the Warren Court. Although it is not suggested explicitly (despite the book being published in a series sponsored by The Cato Institute), they might also provide a theoretically consistent grounding for a more aggressive judicial policing of the rights violated by the regulatory octopus of the modern administrative state.
This fresh and invigorating book is tightly argued in taut and well-wrought prose. It is dense with the insight available to those who spurn the conventional categories and perspectives which, as concerns the Lochner Court, have been so encrusted—Bernstein rightly notes, by liberals and conservatives alike—as to harden into cliché. The book is not simply an armchair re-interpretion of Lochner and its “era.” Despite its brevity, it adduces a raft of original source research in contemporaneous newspapers, law reviews, and reports of interest groups to advance its case. Unlike many libertarian scholars (who operate in ideological ghettoes), Bernstein fully engages with most of the important relevant scholarship, whatever its provenance, and endeavors to meet it directly. He opens up new avenues for historical research, and suggests fundamentally new ways of understanding crucial aspects of American constitutional history.
Rehabilitating Lochner reminds us yet again that the past is another country. That “they do things differently there” is an inconvenient truth for many constitutional law professors, who are celebrated to the extent they can map the past's mad dimensions orthogonally onto the present to mark an ineluctable path forward. Here, Bernstein gratifies in a different way: by expertly complicating the deceptively simple.
