A tale of two lochners: The untold history of substantive due process and the idea of fundamental rights

California Law Review

Volumn 97, Issue 3, 2009, Pages 750-800

  Nourse, Victoria F ^a  

^a EMORY UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 70349561113     PISSN: 00081221     EISSN: None     Source Type: Journal    
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References (504)

1. 198 U. S. 45 (1905).
2. Compare John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 939-40 (1973)
3. with Richard A. Epstein, The Mistakes of 1937, 11 Geo. Mason U. L. Rev., Winter 1988, at 5, 13-15.
4. Opponents in the great Lochner battles share this view.
5. See, e.g., David E. Bernstein, Lochner Era Revisionism Revised, 92 Geo. L. J. 1, 12 (2003) ("[T]he basic motivation for Lochnerian jurisprudence was the Justices' belief that Americans had fundamental unenumerated constitutional rights.")
6. Barry Friedman, The History of the Counter-majoritarian Difficulty, Part Three: The Lesson of Lochner, 76 N. Y. U. L. Rev. 1383, 1404 (2001) ("[T]he tool for judicial usurpation was the (mis) reading into the Constitution of rights not clearly set out there, such as the liberty of contract.").
7. Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 42 (1972)
8. Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 Law and Hist. Rev. 249 (1987) ("Lochner ⋯ is still shorthand in constitutional law for the worst sins of subjective judicial activism.").
9. By "presentist, " I mean the anachronistic injection of present-day ideas and perspectives into depictions and interpretations of the past. The formal definition of right I am using is taken from David Luban, The Warren Court and the Concept of a Right, in Rights 7 n. 13 (Robin West ed., 2001). Luban writes that "to call something a right is to assert that it is a value of such great importance that it deserves especially stringent legal protection. " Id. When I refer throughout the piece to a "strong" right, this is the meaning I am using.
10. My claim is limited to the Due Process Clause of the Fourteenth Amendment. It is entirely possible that other rights claims could have been viewed differently. Criminal procedure rights as applied to the federal government, for example, may not have followed the pattern I suggest here.
11. See Morgan Cloud, The Fourth Amendment During the Lochner Era: Privacy, Property and Liberty in Constitutional Theory, 48 Stan. L. Rev. 555, 576 (1996) (arguing that the 1886 Boyd case invoked the language of indefeasible and thus strong rights). In state cases, however, one can find Progressive Era precedent in which the police power trumped even criminal procedure rights. For example, the defendant's right to be free from unreasonable search and seizure was trumped if the property seized was subject to the police power (if the property was harmful or an instrumentality of crime).
12. See, e.g., Adams v. New York, 192 U. S. 585 (1904). One need not resolve that controversy to address the principal question in this article. The Fourteenth Amendment provides that the state may deprive individuals of their rights if done so in accordance with "due process of law." Although at the time, the Court spent little time on textual language, see infra text accompanying note 61, today it is possible to see the "due process" limitation as the source of claims that rights under the Fourteenth Amendment might be trumped by the police power in ways that might not apply to Bill of Rights provisions applied to the federal government.
13. "Fatal in fact" is the term once used by Gerald Gunther to refer to constitutional review akin to strict scrutiny-"'strict' in theory and fatal in fact." Gunther, supra note 4, at 8.
14. One of the persistent problems in the historiography of this period, as Robert Gordon has noted, is the gap between the theory of a "laissez- faire" court and the progressive practice which elicited vast amounts of legislation. Robert W. Gordon, The Constitution of Liberal Order at the Troubled Beginnings of the Modern State, 58 U. Miami L. Rev. 373 (2003).
15. See Washington v. Glucksberg, 521 U. S. 702, 703 (1997).
16. The older view reflected a larger theory that has been lost. At the time, people widely believed that individual rights existed prior to the Constitution, were not given up in the creation of the Constitution, and thus did not need to be enumerated. Therefore, they thought that the limits on federal power (e.g., the commerce power) were as important protectors of rights as the Due Process Clause or specific texts in the Bill of Rights.
17. See, e.g., Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910, at 109 (1993) ("[T]he federal government was a government of limited powers.... The Constitution enumerated and assigned various powers to the central government ⋯ and the initial task for the Court was to ascertain whether [the challenged action] fell within" that power.)
18. Nor am I committing to the perspective of those legal historians who suggest that Lochner reflected a benign legal doctrine searching for equality and neutrality.
19. See Barry Cushman, Rethinking the New Deal: The Structure of a Constitutional Revolution (1998)
20. Howard Gillman, The Constitution Besieged (1993)
21. G. Edward White, The Constitution and the New Deal (2000).
22. See Lochner v. New York, 198 U. S. 45, 75-76 (1905) (Holmes, J., dissenting) (discussing Social Statics)
23. Fiss, supra note 10 (laissez-faire contract theory)
24. Cass R. Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873, 878 (1987) (status quo bias).
25. See infra note 256 and accompanying text.
26. Ely, supra note 2, at 939-40;
27. Epstein, supra note 2, at 13-15.
28. Externalist histories aim to explain law by invoking external events, such as changes in society or politics or technology, while internalist explanations focus on legal doctrine. For more on this distinction, see Cushman, supra note 11, at Introduction.
29. The Lochner era is generally considered the period from 1890 until 1937, an assumption that I reject in this article. Some have suggested that there are, in fact, three separate Lochner periods. David E. Bernstein, Lochner's Legacy's Legacy, 82 Tex. L. Rev. 1, 10 (2003).
30. Here, my focus is on the period from 1900 until World War I, which follows general historical practice
31. see John Milton Cooper, Jr., Pivotal Decades: The United States 1900-1920 (1990), rather than the various claims made by legal scholars about the Lochner era. Typically, Lochner critics and students include the period from as early as 1880-1900 in their claims, but legal commentators of the early twentieth century used "laissez-faire" to refer to the nineteenth, not the twentieth, century.
32. See, e.g., Lucius Polk McGehee, Due Process of Law Under the Federal Constitution 362 (1906) ("Enlightened public opinion, as reflected by our legislatures and courts, has receded from the strict doctrine of laissez-faire, and we cannot say that a further abandonment of that position may not be advisable."). For a critique of laissez-faire theory
33. see Roscoe Pound, Liberty of Contract, 18 Yale L. J. 454, 478 (1909) ("After 1900, the pendulum had clearly begun to swing the other way."). I do note at the outset that this periodization excludes the Taft court's revival of Lochner in its 1923 decision in Adkins v. Children's Hospital, 261 U. S. 525 (1923). That revival changed and considerably strengthened the notion of right regnant before World War I, in a subset of cases involving price and wage controls.
34. Gordon, supra note 8, at 395;
35. see infra note 248.
36. Cooper, supra note 16, at 97 (railroad regulation), 150-51 (antitrust)
37. William E. Forbath, Law and the Shaping of the American Labor Movement (1991) (labor injunctions)
38. Victoria F. Nourse, In Reckless Hands: Skinner v. Oklahoma and the Near-Triumph of American Eugenics ch. 7 (2008) (eugenics)
39. Charles Warren, Supreme Court in United States History 452 (1923) (listing railroad and other commercial federal legislation including regulation of telegraph, telephone and cable companies)
40. id. at 459 (food and drug regulation)
41. Gordon, supra note 8, at 373 (regulation imposing gender subordination, racial segregation, and restricting political speech)
42. Note, Limitations on State Police Power under the "Due Process"and "Equal Protection" Clauses, 22 Colum. L. Rev. 252, 326 (1922) (fight films and stolen cars).
43. Law students are often treated to the claim that during the Lochner era "over two hundred" statutes were struck down.
44. See, e.g., Geoffrey R. Stone et al., Constitutional Law 724 (4th ed. 2001) ("the Court invalidated approximately 200 economic regulations").
45. One source for this misconception may be Appendix I to Felix Frankfurter, Mr. Holmes and the Supreme Court 97-137 (1938). That appendix includes cases that begin in the year 1877 and end in 1938. The vast majority of cases cited are not, however, considered modern substantive due process cases. They include procedural due process cases, jurisdiction and service of process cases, equal protection cases, and First Amendment cases. The majority of the cases are rate review, tax, and utility cases. Based on the book's one-line descriptions, I counted 108 utility rate or tax cases, twenty-nine equal protection cases, and twenty-five procedural due process cases (including cases about service of process, jurisdiction, presumptions, confessions, among them Pennoyer v. Neff, 95 U. S. 714 (1877)). There were also several antitrust and first amendment cases and a few classic takings cases. Based on this review, I would estimate that there are less than thirty cases on the list that we think of as truly "substantive" due process cases-and the list extends over a sixty-one-year period.
46. This finding is consistent with more detailed empirical studies of the period. For example, in 1913, Charles Warren found that of 560 cases invoking the Due Process Clause, in "only two cases (other than the Lochner Case) " had the Court struck down "social justice" legislation. Charles Warren, The Progressiveness of the United States Supreme Court, 13 Colum. L. Rev. 294, 295 (1913).
47. A "later Warren study, based on the years 1889-1918, found that of the 422 Supreme Court cases involving Fourteenth Amendment due process or equal protection challenges during that period, in only 53 did the Court strike down the challenged regulation. Of the 53, only 14 concerned legislation affecting the general rights of individuals." Michael J. Phillips, The Progressiveness of the Lochner Court, 75 Denv. U. L. Rev. 453, 454 n. 8 (1998).
48. More modern empirical studies state that "the Lochner Court rejected considerably more substantive due process claims than it granted." Id. at 489;
49. see also studies cited infra note 22.
50. One way of resolving this tension between the textbook story and empirical studies is to understand that these figures count different kinds of cases over different periods of time (including the Taft court, as does Phillips, for example, surely increases the numbers of regulations struck down). More importantly, the "two hundred" figure likely includes a large number of decisions that look, to modern eyes, far different from today's fundamental rights cases. For example, the Supreme Court in this era reviewed the reasonableness of utility rates under the Due Process Clause. The Court heard a vast number of these cases.
51. See Christopher Wolfe, The Rise of Modern Judicial Review 151 (1986) (noting that the Court of this era was a "kind of Super-Railroad-Rate- Commission").
52. Phillips's empirical study shows that the rate cases along with other kinds of cases involving railroads and utilities, taxes and business entry restrictions-cases that many today would not associate with fundamental rights-constituted a significant number of statutes struck down. Phillips, supra, at 466, 468, 470, 473, 484 (discussing how the Court struck down forty-two utility orders, five laws on railroad damages, eight tax rules, and seven entry restrictions under substantive due process)
53. see also id. at 488-89 (finding that if one eliminates these kind of decisions and sticks to "general police matters, regulation of business and trade, and employment law, " the ratio of decisions upholding the law to decisions striking it down "exceeds five to one") (emphasis added). As Phillips notes, over 40 percent of the decisions in his sample involved price-fixing or rate-making. Id. at 498.
54. Legal historians generally believe that the "outside" of society (the "externalist" approach) has shaped the "inside" of law (the "internalist" approach). But if this history is correct, we can see how this causal relationship may actually operate in reverse: how the "inside" of law and even legal theory affects how lawyers (and even historians) view the "outside" of history.
55. See Robert W. Gordon, Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography, 10 Law and Soc'y Rev. 9, 11-12 (1975) [hereinafter Gordon, J. Willard Hurst] (distinguishing the internal and external views)
56. see also Robert W. Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57 (1984) (explicating this distinction in the context of the challenge of critical legal studies).
57. The classic exponent of the externalist view was Willard Hurst, Law and the Conditions of Freedom (1956).
58. See infra Part IV for further discussion on this point.
59. For an overview of the debate between the standard view and those historians who seek to revise that view ("the revisionists")
60. see Bernstein, supra note 3 (arguing that the standard story is outmoded)
61. Paul Kens, Lochner v. New York, Tradition or Change in Constitutional Law, 1 N. Y. U. J. L. and Liberty 404 (2005) (summarizing the revisionism)
62. Gary D. Rowe, Lochner Revisionism Revisited, 24 Law and Soc. Inquiry 221, 222 (1999) (calling revisionist reinterpretations of Lochner a "seismic interpretive shift"). Revisionism hails from a variety of works by historians examining the Gilded Age.
63. See Stephen A. Siegel, The Revision Thickens, 20 Law and Hist. Rev. 631 (2002).
64. Paul Kens, Judicial Power and Reform Politics: The Anatomy of Lochner v. New York 4 (1990) ("Historians have pointed out that more regulatory statutes ⋯ were upheld than were overruled during the first thirty years of this century.")
65. Friedman, supra note 3, at 1386 n. 9 (stating that "[m]ost of the recent revisionist effort focuses on dispelling the notion that the Supreme Court represented a mere appendage of corporate America")
66. Stephen A. Siegel, Let Us Now Praise Infamous Men, 73 Tex. L. Rev. 661, 686 (1995) (stating that "old historiography" presents Lochner court justices "as advocates of business enterprise" while the "new presents them all as protectors of liberty")
67. see also Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 Law and Hist. Rev. 293, 293, 311 (1985) (challenging the "orthodox view" that "the major value of the Court... was the protection of the business community against government" and arguing that the purpose of the decisions was not to protect the property of the "rich from the ravages of the poor, " but to "preserve liberty")
68. Bernstein, supra note 16 (rejecting the view that the Supreme Court struck down common law rules favoring business)
69. Phillips, supra note 19 (arguing that the Court upheld far more business regulation than it struck down)
70. Melvin I. Urofsky, Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era, 1983 Sup. Ct. Hist. Soc'y Y. B. 53 (1983) (same).
71. G. Edward White, Revisiting Substantive Due Process and Holmes's Lochner Dissent, 63 Brook. L. Rev. 87, 88-89 (1997) (arguing that the concept of substantive due process is anachronistic, as it was not used by courts). In fact, the question whether due process was a substantive or procedural limitation was debated by law review commentators.
72. See, e.g., Hugh Evander Willis, Due Process of Law Under the United States Constitution, 74 U. Pa. L. Rev. 331, 332 (1926) (asking the question whether due process applies to "substantive law or only to legal procedure"). Professors White and Ely are correct that it was not a judicial term of art until much later.
73. See James W. Ely, Jr., The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Comment. 319 (1999)
74. see also White, supra, at 88-89.
75. See, e.g., Ely, supra note 23, at 318 (criticizing the "long-outdated Progressive historiographical view of the courts at the turn of the century as bastions of laissez-faire"). For the claim that the Court sought liberty
76. see Fiss, supra note 10, at 18-19. For the claim that it sought to enforce equality through the idea of class legislation
77. see Gillman, supra note 11, at 1. For work attacking the notion that laissez-faire judges were motivated by self-interest
78. see Charles W. McCurdy, The Roots of "Liberty of Contract" Reconsidered: Major Premises in the Law of Employment, 1867-1937, 1984 Sup. Ct. Hist. Y. B. 20, 24 (1984).
79. See also Loren Beth, The Development of the American Constitution 1877-1917 (1971) (rejecting notion that court actually implemented laissez-faire views)
80. Alan Jones, Thomas M. Cooley and "Laissez-Faire Constitutionalism": A Reconsideration, 53 J. Am. Hist. 751 (1967) (examining assumption that American constitutional law focused on property rights). On the changing historiography of this period
81. see Felice Batlan, A Reevaluation of the New York Court of Appeals: The Home, the Market, and Labor, 1885-1905, 27 Law and Soc. Inquiry 489, 490-91 (2002).
82. By counter-revisionist, I refer to those who have rejected attempts to rehabilitate Lochner as sound non-politicized doctrine.
83. See Friedman, supra note 3;
84. Paul Kens, Lochner v. New York: Rehabilitated and Revised, but Still Reviled, 1995 J. Sup. Ct. Hist. 31, 32.
85. For an explanation of the historical development noted in the text, see Nourse, supra note 18, at ch. 7.
86. Roe v. Wade, 410 U. S. 113 (1973)
87. Griswold v. Connecticut, 381 U. S. 479 (1965). The skeptic will say that Lochner must have something to say about these decisions because of the socalled countermajoritarian difficulty, but that assumes the very strong notion of right I dispute here. For a discussion of this point, see infra Part IV. D.
88. See Nourse, supra note 18, at ch. 7;
89. see also Richard A. Primus, The American Language of Rights (1999) (dating this development later, but agreeing with its premise).
90. Bob Gordon once termed Willard Hurst's work in law as focused on "democratic detail" and it is in that spirit that I approach this discussion, looking not at how the mandarin academics described the law, but how the lowly practitioner might
91. see it. Gordon, J. Willard Hurst, supra note 20, at 51.
92. Hudson County Water Co. v. McCarter, 209 U. S. 349, 355 (1908).
93. See, e.g., Bernstein, supra note 3;
94. Epstein, supra note 2.
95. Bernstein, supra note 16, at 3-4.
96. Ely, supra note 2, at 939-40;
97. see also John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 14-21 (1980) (criticizing the Lochner-era Court's departure from the Constitution's text).
98. Robert H. Bork, The Tempting of America 36-49 (1990) (arguing that the Court had no authority under the Constitution to invalidate economic legislation under the Due Process Clause).
99. Epstein, supra note 2, at 13-15 (arguing that the Court was wrong to abandon Lochner during the New Deal period)
100. see also Bernard H. Siegan, Economic Liberties and the Constitution 110-21 (1st ed. 1980) (defending Lochner)
101. Michael J. Phillips, Entry Restrictions in the Lochner Court, 4 Geo. Mason L. Rev. 405, 454-55 (1996) (embracing Lochnerian decisions prohibiting monopolization of certain occupations)
102. Note, Resurrecting Economic Rights: The Doctrine of Economic Due Process Reconsidered, 103 Harv. L. Rev. 1363, 1364 (1990) (calling for a revival of Lochnerian jurisprudence).
103. See generally James W. Ely, Jr., Melville W. Fuller, 1998 J. Sup. Ct. Hist. 35, 41-46 (defending Lochner and other controversial Fuller Court decisions as forward-looking and consistent with contemporary public opinion and political economy).
104. Friedman, supra note 3.
105. See, e.g., Bernstein, supra note 3, at 12 ("[T]he basic motivation for Lochnerian jurisprudence was the Justices' belief that Americans had fundamental unenumerated constitutional rights.")
106. Friedman, supra note 3, at 1403 ("[T]he tool for judicial usurpation was the (mis) reading into the Constitution of rights not clearly set out there, such as the liberty of contract...."). Barry Friedman, relying on Richard Fallon, id. at 1416, argues that right and power are logically entailed by each other. But this assumes the very idea of right-the modern notion of right-that I am calling into question. Right and power are only logically correlated in a world where there is a strong notion of right-where right connotes strict scrutiny. If claims of right can be defeated in the vast majority of cases by the common welfare, then this apparently "logical" equation fails. The strength of the right does not depend upon the number of times it is claimed or even the number of times that it succeeds but in its relation to the public welfare; when lawyers talk about strong rights today, they mean rights that provoke "strict scrutiny, " not rights that provoke something like rational basis. Friedman and Fallon's views reflect the general "liberal" theory of right asserted in modern jurisprudence, a view that tends to view rights in negative and absolutist terms, rather than positive or public terms. As Robin West has asserted, however, "[t]he notion of a positive right ⋯ is by no means oxymoronic." Robin West, Introduction: Revitalizing Rights, in Rights xix (Robin West ed., 2001). The idea of right has not remained fixed in constitutional doctrine or theory over the past two hundred years.
107. See Harry N. Scheiber, Public Rights and the Rule of Law in American Legal History, 71 Calif. L. Rev. 217, 219 (1984) (emphasizing the "positive notions of public rights" that pervaded nineteenth century constitutional law: "American courts have been concerned, historically, to forge a set of precepts that⋯ would take account of what the public ⋯ has a right to claim of its government."). As Wesley Hohfeld famously noted, "the word 'right' is used ⋯ indiscriminately to denote any sort of legal advantage, whether claim, privilege, power, or immunity." Wesley Newcomb Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning, 26 Yale L. J. 710, 717 (1917).
108. Sunstein, supra note 12, at 878.
109. White, supra note 23, at 104-05;
110. see also Gillman, supra note 11. In this Article, I leave to the side the question of class legislation, which is treated elsewhere.
111. See V. F. Nourse and Sarah Maguire, The Lost History of Governance and Equal Protection, 58 Duke L. J. 955 (2009) (rejecting Howard Gillman and others' claims that class legislation explains the Lochner-era cases associated with substantive due process).
112. Bruce Ackerman, We the People: Transformations 269 (1998).
113. Fiss, supra note 10, at 1888-1910.
114. David A. Strauss, Why Was Lochner Wrong?, 70 U. Chi. L. Rev. 373, 375 (2003).
115. I do agree that the revisionists have done us a service in eliminating certain explanations that are clearly overbroad. For example, David Bernstein is correct that the Court was not always hostile to changes in all common law doctrine, even if the theory of the police power is in fact thoroughly imbued with and dependent upon the common law.
116. See Bernstein, supra note 16, at 3-4. Bernstein and others are also correct that the Court's doctrine cannot be irretrievably described as anti-redistributive. As Charles Warren showed at the time, the Lochner Court did not attempt to enforce anything like a night-watchman state, and empirical and historical studies from the right and the left have since supported that proposition.
117. See supra note 19;
118. Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 Harv. L. Rev. 943, 944-45 (1927)
119. Urofsky, supra note 22;
120. Melvin I. Urofsky, State Courts and Protective Legislation During the Progressive Era: A Revaluation, 72 J. Am. Hist. 63, 64 (1985)
121. see also Gordon, supra note 8;
122. Beth, supra note 24, at 190.
123. It does not follow from my attack on the conventional notion of the "rights" discourse that other doctrine of this era might not be labeled as conservative or laissez-faire. The doctrinal basis for such a claim, however, must be much broader than rights and substantive due process. As Owen Fiss's history shows, on a constellation of legal claims, from decisions about tax to ones about antitrust and, perhaps most importantly, to the Commerce Clause, the Court struggled with the great issues of industrialization in ways that today appear decidedly illiberal. Fiss, supra note 10.
124. See, e.g., United States v. Carolene Prods. Co., 304 U. S. 144 (1938) (upholding economic regulation under a minimal standard of review)
125. id. at 153 n. 4 (suggesting a more intensive review for cases involving speech, religion, and race).
126. Nourse, supra note 18, at ch. 9;
127. see also Primus, supra note 28 (dating this development later, but agreeing at least in part with its premise).
128. McGehee, supra note 16, at 201.
129. Ernst Freund, The Police Power 15 (1904) ("It thus becomes a requirement of the constitution that every statute should be the exercise of some recognised power justified by the reason and purpose of government. In order to ascertain whether legislation is constitutional or not, we must analyse the powers of government and define the nature of each.").
130. Walter Wheeler Cook, What Is the Police Power?, 7 Colum. L. Rev. 322, 332 (1907).
131. Freund, supra note 48, at iii.
132. Lochner v. New York, 198 U. S. 45, 56 (1905) (emphasis added).
133. Id.
134. Fiss, supra note 10, at 85 (arguing that almost all of the most important cases of the day, including Lochner, did not depend upon an "exercise of clause-parsing")
135. see also infra notes 61, 62 and accompanying text.
136. McGehee, supra note 16, at 301.
137. Knoxville Iron Co. v. Harbison, 183 U. S. 13, 20 (1901) (quoting judgment below on the "first right of a State")
138. id. at 22 (holding that the right to contract is not absolute). As I have emphasized, due process included an equality component at the time.
139. The notion of a public right was not unusual: the police power was sometimes described as the "paramount right" of the state.
140. McGehee, supra note 16, at 201 (noting that all rights are "subject to the paramount right of the state" to act for the common welfare).
141. As Dean Pound would put it, the problem was not rights simpliciter, it was an individualist conception of justice that exaggerated "private right at the expense of public right." Pound, supra note 16, at 457.
142. See generally Scheiber, supra note 37, at 217 (emphasizing the importance of the notion of "public rights" in legal history).
143. W. P. Prentice, Police Powers Arising Under the Law of Overruling Necessity 4 (1894).
144. Id. at 301.
145. David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 884-91 (1996) (defending an idea of constitutionalism that is less focused on the text or structure of the Constitution than the Court's own precedents, a common law form of decisionmaking).
146. Fiss, supra note 10, at 85.
147. Id.
148. see also id. at 182 ("In their era, the process of constitutional interpretation was not... one of parsing the language of some particular provision of the Constitution ⋯ [N]o special effort was made to distinguish one particular clause of [the Fourteenth] amendment from another. Lochner was written in a similar spirit.... The Due Process Clause was identified ⋯ but there was no pretense ⋯ that the result flowed from an interpretation of the 'the word liberty'.... The result flowed instead from a general conception of state authority. Holmes's proffered substitute was equally general and equally without roots in the words of the Constitution. ").
149. Gilded Age constitutional theory held no particular regard for the text.
150. See, e.g., Christopher Tiedeman, The Unwritten Constitution of the United States: A Philosophical Inquiry into the Fundamentals of American Constitutional Law 155 (1890) (urging courts not to rely upon "plain, exact, and explicit" constitutional texts but constitutional "generalities")
151. id. at 151 (arguing that a judge "need not concern himself so much with the intentions of the framers of the Constitution or a statute, " but instead should "find out what the possessors of political power now mean by the written word."). This view was applied, by some, to the text and enumerated rights themselves. Francis Newton Thorpe, A Constitutional History of the American People 64 (1898) (stating that the rights guaranteed in the Constitution's Bill of Rights were but generalities and "administrative measures" which were largely superfluous to the people's actions and understandings of their rights); Lucius Polk McGehee, Due Process of Law under the Federal Constitution 43 (1906) (stating that even enumerated rights were not important because of their text but were "preexisting and fundamental, not created by nor dependent on the Constitution"); Kunal M. Parker, Context in History and Law: A Study of the Late Nineteenth-Century American Jurisprudence of Custom, 24 Law and Hist. Rev. 473, 512 (2006) (noting Tiedeman's "refreshingly cavalier attitude toward the integrity of textual language").
152. This anti-textualism applied to the Fourteenth Amendment itself: "The object of the Fourteenth Amendment, as has been declared in repeated decisions, is not to confer the rights enumerated in its first section directly on any one, but to guarantee all citizens or persons against being deprived of those rights by State action. The enumerated rights are recognized as preexisting and fundamental, not created by nor dependent on the Constitution...." McGehee, supra note 16, at 43 (emphasis added).
153. Id. at 139.
154. Even those scholars who, in the 1920s, sought to support substantive elements of due process did not depend so much on unenumerated rights as on expanding various parts of the substantive due process case law, such as the "public purpose" limitation on the regulation of business.
155. See Rodney L. Mott, Due Process of Law ch. 22 (1926).
156. See Antonin Scalia et al., A Matter of Interpretation: Federal Courts and the Law (1997).
157. Manigault v. Springs, 199 U. S. 473 (1905).
158. See McGehee, supra note 16, at 300 (citing Manigault as a classic police power case of the period).
159. Manigault, 199 U. S. at 480 (emphasis added).
160. Id.
161. Id.
162. Freund, supra note 48, at 19 (distinguishing between rights that were common and thus "fundamental, " and those which may be breached by the state "as it pleases" without "observing the limitations ⋯ of the police power").
163. Crowley v. Christensen, 137 U. S. 86, 89 (1890).
164. Lawrence M. Friedman, Freedom of Contract and Occupational Licensing 1890-1910: A Legal and Social Study, 53 Calif. L. Rev. 487, 492 (1965) (noting Field's reputation as a "stern prophet of individualism").
165. Crowley, 137 U. S. at 89 (1890) (upholding regulation of liquors)
166. see also Marts v. City of Oxford, 32 F.2d 134 (8th Cir. 1929) (quoting same principle in upholding regulation of oil).
167. Gundling v. City of Chi., 177 U. S. 183 (1900).
168. Id. at 188.
169. Id.
170. Id. This discourse pervaded state law as well.
171. See, e.g., Williams v. State, 108 S. W. 838, 840 (Ark. 1908) ("It is a principle which underlies every reasonable exercise of the police power that private rights must yield to the common welfare.")
172. Am. Express Co. v. S. Ind. Express Co., 78 N. E. 1021, 1028 (Ind. 1906) ("It has never been denied that in the exercise of the police power property rights may be sacrificed, natural privileges curtailed, and liberty restricted or taken away, " said the court. "As the public peace, safety, and well-being are the very end and object of free government, legislation which is necessary for the protection and furtherance of this object cannot be defeated on the ground that it interferes with the common-law rights of some of the citizens, or even deprives them of such rights."); State v. Heinemann, 49 N. W. 818 (Wis. 1891) ("All courts agree that the police power of the state extends to all regulations affecting the lives, limbs, health, comfort, good order, morals, peace, and safety of society, and hence may be exercised on many subjects and in numerous ways.").
173. Even one of the most famous property rights cases followed this logic. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), is today studied as a "takings" case, and yet, when read in full it follows the pattern as identified in the text. The opinion aims to determine whether the "police power" has been satisfied, id. at 413, and applies standard police power analytics, such as a comparison with a "public nuisance." Id. It concludes that the "destruction" of the plaintiffs property rights were justified by no "public interest." Id. at 414.
174. Some critics claim that, in the Lochner era, courts were hostile to statutes aiming to change the common law.
175. See Sunstein, supra note 12, at 878. As far as results are concerned, these critics overclaim, as the Court upheld a variety of statutes abrogating common law rules, most notably worker's compensation schemes.
176. See Bernstein, supra note 16, at 3-4 (arguing against Professor Sunstein's claim that the court was anti-common law)
177. see also Ray A. Brown, Police Power: Legislation for Health and Safety, 42 Harv. L. Rev. 866, 889-94 (1929) (detailing the cases in which the Supreme Court had altered "common law rules of liability")
178. id. at 890 ("In no line of cases, however, has the United States Supreme Court displayed greater liberality than in the litigation respecting workmen's compensation legislation. "). Nevertheless, the very idea of the police power depended upon the common law notion of nuisance; so, in that sense, it is true that the court's jurisprudence was pro-common law.
179. 219 U. S. 549, 567 (1911).
180. Id. (quoting Frisbie v. United States, 157 U. S. 160, 165-66 (1895)).
181. Williams v. State, 108 S. W. 838 (Ark. 1908).
182. William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Gilded Age, 1985 Wis. L. Rev. 767, 769 (late nineteenth-century judges who struck down state labor laws and the labor reformers who promoted them acted on behalf of a principle borrowed from antislavery advocates, known as "free labor"). The view that men had a right to carry on a calling persisted through the beginning of the twentieth century.
183. See, e.g., McGehee, supra note 16, at 141 ("Labor is the primary foundation of all wealth. The property which each one has in his own labor is the common heritage. And, as an incident to the right to acquire other property, the liberty to enter into contracts by which labor may be employed in such way as the laborer shall deem most beneficial, and of others to employ such labor, is necessarily included in the constitutional guaranty.").
184. Williams v. Arkansas, 217 U. S. 79, 90 (1910).
185. Lochner v. New York, 198 U. S. 45, 53 (1905).
186. Id. (citation omitted) (emphasis added).
187. Jacobson v. Massachusetts, 197 U. S. 11 (1905)
188. Knoxville Iron Co. v. Harbison, 183 U. S. 13 (1901)
189. Petit v. Minnesota, 177 U. S. 164 (1900)
190. Holden v. Hardy, 169 U. S. 366 (1898).
191. Lochner, 198 U. S. at 56 (emphasis added).
192. See Morton Horwitz, The Transformation of American Law 1870-1960, at 15 (1992) ("The process of generalization and abstraction in late-nineteenth-century law was identified with the goal of rendering private law more scientific and less political.").
193. See, e.g., Andrew A. Bruce, The Individualism of the Constitution, 62 Cent. L. J. 377, 382 (1906) ("They seem to think that interference is necessary in order that the public shall not be driven to the extreme of demanding state socialism.")
194. W. A. Counts, Laissez Faire in the United States, 68 Cent. L. J. 118, 118 (1909) (quoting opponents of labor laws: "To place the working classes under special protection against the aggression of capital⋯ is to change the government from a government of freemen, to a paternal government or a despotism, which is the same thing.").
195. The fear of "class" helps to explain the plausibility of Howard Gillman's thesis that "class legislation" strongly influenced the development of the Due Process Clause, but this idea cannot explain all of due process jurisprudence and makes no provision for the ways in which class legislation approximated equal protection doctrine. Gillman, supra note 11, at 1; cf. Nourse and Maguire, supra note 39.
196. Roosevelt Advises Students, L. A. Times, June 15, 1906, at 11 (class against class).
197. Lochner v. New York, 198 U. S. 45, 57 (1905) (emphasis added).
198. Id. at 65-74 (Harlan, J., dissenting).
199. Coppage v. Kansas, 236 U. S. 1 (1915)
200. Adair v. United States, 208 U. S. 161 (1908). If there is a case that adopts language which is close to a strong right, it is Adkins v. Children's Hospital, 261 U. S. 525 (1923) (striking down the minimum wage for women), a case that emerged when the Taft Court veered right after World War I. See discussion supra note 16 (discussing how Adkins transformed Lochnef).
201. Muller v. Oregon, 208 U. S. 412, 423 (1908).
202. See Alpheus Thomas Mason, Brandeis: A Free Man's Life 249-50 (1946) ("In the Muller brief only two scant pages were given to conventional legal arguments. Over one hundred pages were devoted to the new kind of evidence drawn from hundreds of reports ⋯ proving that long hours are as a matter of fact dangerous to women's health, safety, and morals, that short hours result in social and economic benefits.").
203. Muller v. Oregon, 208 U. S. 412, 421 (1908).
204. The Lochner language frequently quoted today by constitutionalists is the following: "The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor." Lochner, 198 U. S. at 57-58. Even if taken as a general statement of the rule (which it was not at the time), this at most amounts to a nod toward a rational-basis-plus standard akin to that applied in City of Cleburne v. Cleburne Living Center, 473 U. S. 432 (1985). This standard is not strict scrutiny, which requires something more than a "legitimate end, " but at least a "compelling state interest." Id. at 440-42.
205. Bunting v. Oregon, 243 U. S. 426 (1917).
206. See Francis. W. Bird, The Evolution of Due Process of Law in the Decisions of the United States Supreme Court, 13 Colum. L. Rev. 37, 49 (1913) ("The Lochner Case has been severely criticized, weakened very decidedly by the case sustaining the Oregon Statute limiting the hours of labor for women; and is consequently of doubtful authority.")
207. Charles Kellogg Burdick, The Meaning of "Police Power", 214 N. Am. Rev. 158, 162 (1921) ("[I]n 1917, the Lochner case was in effect overruled, though not mentioned, when the Oregon ten-hour law was upheld on the ground that excessive work by any person, in any field, is injurious to the individual....")
208. Collins Denny, Jr., The Growth and Development of the Police Power of the State, 20 Mich. L. Rev. 173, 209 (1921) ("But in the case of Bunting v. Oregon the Lochner case, except for unusual violations of liberty, was overthrown. ").
209. Brown, supra note 81, at 877.
210. Id. at 884 n. 76.
211. See Coppage v. Kansas, 236 U. S. 1 (1915)
212. Adair v. United States, 208 U. S. 161 (1908).
213. There were other cases of far greater significance to labor at the time, such as the Danbury Hatters Case, Loewe v. Lawlor, 208 U. S. 274 (1908)
214. which barred secondary boycotts, and Traux v. Corrigan, 257 U. S. 312 (1921), which upheld thousands of labor injunctions issued by the lower courts. But constitutionalists today do not associate these cases with Lochner because they were not decided primarily on grounds of right. For the significance of these cases to the labor movement, see Forbath, supra note 18;
215. William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 (1994).
216. See also discussion infra Part III (discussing the impact).
217. In Adair, 208 U. S. 161, the question was whether Congress could outlaw the yellow dog contract for interstate carriers. Adair opens with a lengthy discussion of right, one more insistent in some ways than Lochner itself, suggesting to a casual reader unfamiliar with the police power that this is the end of the case. Of course, it cannot be under the given rules of the police power. Adair complicates the police power by the fact that it was a federal case (the federal government had no reserved police power), which explains why the Adair Court spent so much time on the Commerce Clause. If the right had been sufficient in itself, however, none of the discussion of power would have been necessary. Coppage, 236 U. S. at 15, followed Adair on the question of right and then acknowledged that, although the state had the undoubted police power to prohibit coercion and misrepresentation in contracts ("[w]e do not mean to say, therefore, that a State may not properly exert its police power to prevent coercion on the part of employers towards employe[e]s, or vice versa"), the actual facts of the case involved no coercion. Again, that analysis would have been unnecessary if the right announced at the opening of the decision had been enough to decide the case. In dissent, Justice Day argued that Kansas did in fact have the police power to regulate: "nothing is better settled by the repeated decisions of this court than that the right of contract is not absolute and unyielding, but is subject to limitation and restraint in the interest of the public health, safety, and welfare, and such limitations may be declared in legislation of the State." Id. at 28 (Day, J., dissenting).
218. Adair, 208 U. S. at 172.
219. Id.
220. Schmidinger v. City of Chi., 226 U. S. 578, 587 (1913).
221. 236 U. S. 338, 349 (1915).
222. 248 U. S. 372, 375 (1919).
223. Charles K. Burdick, The Law of the American Constitution § 197, at 473 (1922).
224. Id. § 196, at 469.
225. Id. § 196, at 470 (quoting Chi. and Alton R. R. Co. v. Tranbarger, 238 U. S. 67, 76 (1915)) (emphasis added). The bar's professional materials reflected similar views well into the 1930s.
226. See 11 Am. Jur. Constitutional Law, § 267, at 1006-07 (1937) ("[I]t is settled that the possession and enjoyment of all rights are subject to the police power.... Consequently, both persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, welfare, and prosperity of the people of the state." (footnote omitted))
227. id. at § 268, at 1009 ("No rule in constitutional law is better settled than the principle that all property is held subject to the right of the state reasonably to regulate its use under the police power....")
228. id. at § 264, at 1000 ("Rights and privileges arising from contracts are subject to regulations for the protection of the public health, the public morals, and the public safety, in the same sense and to the same extent as all property....")
229. see also Hugh Evander Willis, Constitutional Law of the United States 643 (1936) ("The great powers of government⋯ are the police power, the power of eminent domain, and the power of taxation. Whenever there is a proper exercise of these powers, personal liberty is rightly delimited.... Property for long years made a direct appeal to due process, but its direct appeal for the most part failed.")
230. id. at 707 ("[I]f the social control is a proper exercise of the police power⋯ there is no violation of due process as a matter of substance.")
231. id. at 715 ("[P]ersonal liberty is never protected by the due process clause as a matter of substance against the police power....").
232. There is no question, for example, that after apparently increasing progressivism by the end of the war, the Court made a significant turn toward the right during the period from 1920 to 1930. This occurred, in part, because of a change in the membership of the Court.
233. See Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 Wm. and Mary L. Rev. 1, 2 (2006) ("The Taft Court was... dominated by conservative Justices.")
234. James A. Henretta, Charles Evan Hughes and the Strange Death of Liberal America, 24 Law and Hist. Rev. 115, 118 (2006) (noting the "conservative outlook of the Taft court of the 1920s").
235. See, e.g., McGehee, supra note 16, at 345 ("Although freedom and the liberty to contract are fundamental rights within the guaranties of the Constitution, they may be limited by the State in the exercise of the police power in the interest of public safety, health, or morals, or, under certain conditions, in the exercise of the legislative power merely."). Cases like Meyer v. Nebraska, 262 U. S. 390 (1923), and Pierce v. Society of Sisters, 268 U. S. 510 (1925), decided in the 1920s, are sometimes thought to have begun the move toward a strong rights jurisprudence. This, however, is a misreading of both cases, each of which follows the same rule that a right or liberty may be trumped by the public welfare. Id. at 534. Meyer unquestionably enumerates a long list of "liberties, " but these were "reserved rights" of the day, all of which could be subject to the police power. Without a claim of public harm, no reason to invoke the police power existed. This is precisely what the Meyer Court held: "Mere knowledge of the German language cannot reasonably be regarded as harmful." Meyer, 262 U. S. at 400. So, too, Pierce relies upon Meyer and the fact that the law impairs the school's property rights without a showing, again, that the parochial schools harm the "common welfare."
236. Miller v. Schoene, 276 U. S. 272, 279-80 (1928) ("[W]here the public interest is involved preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.").
237. Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 387 (1926). The zoning "ordinance now under review, " Justice Sutherland wrote, "and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare." Id.
238. Novel rights claims also fell to this rationale. In Justice Holmes's 1927 opinion in Buck v. Bell, 274 U. S. 200 (1927), Carrie Buck's lawyers argued that she had a right to bodily integrity that could not be infringed by the state, which wanted to forcibly sterilize her. Justice Holmes's five-paragraph opinion rejected the rights claim with the back of the hand, suggesting it was obviously wrong to say that in no circumstance could the state sterilize. Nourse, supra note 18, at 29-30. In doing so, he implied that a strong claim of right was ridiculous, presumably because he knew that any right was subject to the police power. The rest of the opinion did not rehearse the well established police power rule, but simply applied it, explaining that there were sound reasons in public health and welfare to sterilize-"[t]hree generations of imbeciles" were enough. Buck, 274 U. S. at 207. As Lawrence Friedman explains, Buck was considered a progressive decision for its day precisely because it followed the general police power rationale. Accord Willis, supra note 116, at 754;
239. see also Nourse, supra note 18, at ch. 6.
240. Gitlow v. New York, 268 U. S. 652, 666-67 (1925).
241. 274 U. S. 357, 371 (1927).
242. Id.
243. 278 U. S. 63, 72 (1928).
244. Id.
245. Brown, supra note 81, at 878.
246. This was increasingly the case involving price regulation in the 1920s.
247. See, e.g., Ribnik v. McBride, 277 U. S. 350 (1928)
248. Williams v. Standard Oil Co., 278 U. S. 235 (1928)
249. Tyson and Brother v. Banton, 273 U. S. 418 (1927).
250. See, e.g., Evans Clark, Industry Is Setting Up Its Own Government: American Capital and Labor Interests Find a New Way to Avoid Disastrous Strikes and Lockouts, N. Y. Times, Mar. 21, 1926, at XX5; Labor Chief Urges Industrial Peace, N. Y. Times, Jan. 2, 1928, at 17; Labor Chief Plans Fight in Congress, N. Y. Times, Jan. 18, 1928, at 40; John B. Andrews, Labor and Capital, N. Y. Times, Jan. 1, 1925, at 33; John B. Andrews, Labor and Capital, N. Y. Times, Jan. 1, 1927, at 9.
251. Compare Powell v. Pennsylvania, 127 U. S. 678 (1888) (margarine), with Weaver v. Palmer Bros. Co., 270 U. S. 402 (1926) (shoddy mattresses).
252. Compare Jay Bums Baking Co. v. Bryan, 264 U. S. 504 (1924), with Schmidinger v. City of Chicago, 226 U. S. 578 (1913).
253. Rate cases, which were very high in number, tend to skew the numbers of those who assert the Lochner Court struck down a large number of statutes.
254. See Phillips, supra note 19 (discussing these cases).
255. Friedman, supra note 3, at 1405-13 arguing that a number of the Court's cases appeared inconsistent
256. see, e.g., cases cited supra notes 129-130.
257. Roosevelt Answers Cry of Revolution, N. Y. Times, Feb. 27, 1912, at 1, 3 (emphasis added).
258. See, e.g., Bernstein, supra note 3, at 12 ("[T]he basic motivation for Lochnema jurisprudence was the Justices' belief that Americans had fundamental unenumerated constitutional rights....")
259. Friedman, supra note 3, at 1403 ("[T]he tool for judicial usurpation was the (mis) reading into the constitution of rights not clearly set out there, such as the liberty of contract....").
260. The Federalist No. 51 (James Madison); Victoria Nourse, Toward a "Due Foundation "for the Separation of Powers: The Federalist Papers as Political Narrative, 74 Tex. L. Rev. 447 (1996)
261. Victoria Nourse, The Vertical Separation of Powers, 49 Duke L. J. 749 (1999) [hereinafter Nourse, Vertical Separation].
262. See, e.g., Roosevelt Cries War to Knife on Both Old Parties, Chi. Daily Trib., Feb. 13, 1913, at 1 ("We recognize that property has its rights, but they are only incident to, they come second to, the rights of humanity. We hold that the resources of the earth were placed for the use of man in the mass; that they are to be developed for the common welfare of all, and that they are not to be seized by a few for the purposes of oppression of the many or even with disregard of the rights of the many.").
263. Hammer v. Dagenhart, 247 U. S. 251 (1918) (striking down as unconstitutional a federal law aimed at limiting child labor despite the fact that there was a massive, sentiment in favor of child labor restriction; it was not until the New Deal that federal power to regulate child labor was achieved).
264. Coppage v. Kansas, 236 U. S. 1 (1915)
265. Adair v. United States, 208 U. S. 161 (1908).
266. The labor injunction, upheld in Truax v. Corrigan, 257 U. S. 312 (1921), was one of the central tools business used to thwart union action. Forbath, supra note 18 (labor injunctions).
267. Andrew K. Black III, Wages and Hours Laws in the Courts, 5 U. Pitt. L. Rev. 223, 225-229 (1939) (describing the litigation history of hours laws).
268. Michael McGerr, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870-1920, at 15 (2003). By the end of the World War I, progressivism had become embedded in mainstream politics. Given the onslaught, and relative popularity of Theodore Roosevelt's Progressive Party, Woodrow Wilson had adopted the status of a reformer. Id. at 280. After the war, Warren Harding called himself a "rational progressive, " and Herbert Hoover described his creed as "progressive individualism." Id. at 320.
269. James Chace, 1912: Wilson, Roosevelt, Raft and Debs-The Election that Changed the Country 51 (2004).
270. Id. at 196.
271. McGerr, supra note 141, at 126.
272. See Nourse, supra note 18, at ch. 6.
273. See, e.g., Should Wilson Encourage Union-Labor Anarchy, L. A. Times, Nov. 15, 1914, at V13 (anarchy associated with unionism)
274. The Ten Hour Decision, N. Y. Trib., Apr. 19, 1905, at 4 (editorial on Lochner opening with the line: "The Supreme Court draws the line sharply between sanitation and socialism.").
275. Denounces Labor Unions, N. Y. Times, Jan. 18, 1902, at 2 (statement of George P. Baer, President of the Philadelphia and Reading Railway, regarding labor unions)
276. see also McGerr, supra note 141, at 119;
277. see, e.g., The Ten-Hour Decision, N. Y. Times, Apr. 28, 1905, at 8 (describing labor as "professional agitators"). This was in part a legacy from the Gilded Age, which "offered a litany of class conflict: the great railroad strike of 1877, the strike against Jay Gould's Missouri-Pacific Railroad in 1886, the Haymarket Bombing in Chicago the same year, the Homestead strike of 1892, the Pullman strike of 1894, and countless other battles." McGerr, supra note 141, at 126;
278. see also Malcolm H. Lauchheimer, Imminent Constitutional Shams, Forum 91 (Jan. 1917) ("[T]he courts, which have been compelled to advance as far towards socialism as the minimum wage....").
279. William Howard Taft, Taft Writes About Wilson, N. Y. Times, Oct. 3, 1920, at 4 (reprinting Yale Review article).
280. See Forbath, supra note 85.
281. See, e.g., Right of Contract, Dallas Morning News, Apr. 18, 1905, at 2;
282. Hour Bakery Law Invalid, The Sun (N. Y.), Apr. 18, 1905, at 4;
283. Labor Not Restricted, N. Y. Trib., Apr. 18, 1905, at 1.
284. Court Overturns The Ten Hour Law, N. Y. Trib., Apr. 18, 1905, at 4;
285. Defying the Supreme Court, The Sun (N. Y.), Apr. 19, 1905, at 6;
286. Important Decision, Pensacola J. (Pensacola, Fla.), Apr. 18, 1905, at 1;
287. New York 10-Hour Law is Unconstitutional, N. Y. Times, Apr. 18, 1905, at 1;
288. Editorial, Mount-Vernon Signal (Mt. Vernon, Ky.), Apr. 21, 1905, at 2 (the Supreme Court delivered a "knockout blow" to the labor unions' effort to obtain an eight hour bill from Congress). A number of papers simply quoted large parts of the opinion.
289. See Bakery Law Invalid, Wash. Post, Apr. 18, 1905, at 11;
290. Law Can't Limit A Working Day, Chi. Daily Trib., Apr. 18, 1905, at 1;
291. Ten-Hour Law Killed by Court, Boston Daily Globe, Apr. 18, 1905, at 3. Others reported the decision along with other Court decisions.
292. See U. S. Supreme Court, Wall St. J., Apr. 18, 1905, at 2.
293. Stands by the Constitution, L. A. Times, May 14, 1905 at VI10.
294. In Which the Right of Contract Is Upheld, Dallas Morning News, Apr. 20, 1905, at 6.
295. The Ten Hour Decision, supra note 146, at 4.
296. Id.
297. In Which the Right of Contract is Upheld, supra note 153, at 6. Given this, it is not surprising that some of the very early legal commentary supported this view. See, e.g., Validity of State Regulation of Hours of Labor, 60 Cent. L. J. 401, 401-02 (1905) (Lochner established "a new rule of construction or limitation of the police power.... [L]abor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities?") -
298. See Ross, supra note 106, at 41 ("Although proponents of social reform continued to grumble about the judiciary during the decade from 1897 to 1906, criticism was muted and received little national attention. ").
299. An Important Decision, Salt Lake Herald, Apr. 23, 1905, § 2, at 4. Those emphasizing the dissenting opinions tended to focus on Justice Harlan's dissent, not Holmes's.
300. See, e.g., Ten Hour Law Killed by Court, Boston Daily Globe, Apr. 18, 1905, at 3 (headline: "Let State Alone, " Says Harlan); Law Can't Limit Workday, supra note 151.
301. See, e.g., 85, 000 Bakers May Strike, N. Y. Times, Apr. 18, 1905, at 1; Law Can't Limit Workday, supra note 151.
302. Paul Kens, Lochner v. New York: Economic Regulation on Trial 144 (1998).
303. Id. at 145. For a general view of Theodore Roosevelt and the courts during this period, without specific focus on Lochner, see Ross, supra note 106, at 130-54.
304. Chace, supra note 142, at 15.
305. A Review of the World, 49 Current Literature No. 4 (Oct. 1910)
306. see also Theodore Roosevelt, Colonel Roosevelt on the Big Stick and the Square Deal, Idaho Daily Statesman, Feb. 1, 1914, at 2 (continuing his criticisms of the judiciary even though he lost his bid for reelection).
307. Roosevelt's articles critiquing the Court began shortly after his presidency ended. See, e.g., Theodore Roosevelt, A Judicial Experience, in Outlook Editorials 13, 20 (1909) (not mentioning Lochner by name but criticizing the judiciary's embrace of freedom of contract)
308. see also William Travers Jerome, Ought Judges to Know Life, Outlook (N. Y., N. Y.), Mar. 27, 1909, at 665.
309. Mr. Roosevelt's Attack on the Courts, N. Y. Times, Aug. 31, 1910, at 8. The speech was reported widely.
310. See, e.g., Mr. Roosevelt Attacks Federal Supreme Court, N. Y. Herald Aug. 30, 1910, at 4; Mr. Roosevelt's Speeches, N. Y. Times, Aug. 30, 1910, at 2 (reprinting Denver speech)
311. Shots Are Sent at High Court by Roosevelt, Atlanta Const., Aug. 30, 1910, at 1.
312. United States v. E. C Knight, 156 U. S. 1 (1895).
313. A Review of the World, supra note 163 (quoting Roosevelt's Denver speech). As the article notes, the "neutral zone" metaphor came from William Jennings Bryan, who had used a similar metaphor, "twilight zone, " in his 1896 presidential campaign. Id.
314. Id. This view was remarkably prescient of the complaint that Franklin D. Roosevelt would make during the New Deal when the Supreme Court struck down state and national attempts to regulate wages. This speech was reported widely across the nation. See, e.g., Roosevelt Attacks the Supreme Court United States in Denver Speech, Macon Daily Telegraph (Macon, Ga.), Aug. 30, 1910, at 2.
315. Roosevelt Attach the Supreme Court United States in Denver Speech, supra note 168, at 2.
316. Id.
317. Clean Bakeshops Can Be Had, N. Y. Times, Nov. 11, 1910, at 8.
318. Id.
319. Theodore Roosevelt, Nationalism and the Judiciary, Outlook (N. Y., N. Y.), Mar. 18, 1911, at 574.
320. Bar Denounces Mr. Roosevelt's Court Attack, N. Y. Herald, Aug. 31, 1910, at 1.
321. Mr. Roosevelt's Attack on the Courts, supra note 165, at 8;
322. see also Attack on Supreme Court by Mr. Roosevelt Stirs Editors, N. Y. Herald, Sept. 1, 1910, at 4. The New York Times editorial page did not let the issue go, referring to it twice more in urging that the "unsanitary" conditions in bakeshops could be cured by a law that focused only on sanitation.
323. See The Bakeshop Bill, N. Y. Times, Mar. 18, 1911, at 12;
324. Clean Bakeshops Can Be Had, supra note 171, at 8.
325. Attack of Roosevelt Answered by Parker, Atlanta Const., Sept. 1, 1910, at 4;
326. see also Mr. Parker Meets Attack on Courts by Mr. Roosevelt, N. Y. Herald, Sept. 1, 1910, at 1; Parker in Court's Defense, Wash. Post, Sept. 1, 1910, at 11;
327. Parker Defends Judges, N. Y. Times, Sept. 1, 1910, at 2.
328. A Review of the World, supra note 163.
329. See, e.g., Berger Angered; Coup a Failure, Chi. Daily Trib., Nov. 16, 1910, at 2 (reporting that when Missouri's Governor Hadley embraced Roosevelt's critique of the courts, the crowd at the American Federation of Labor convention cheered).
330. A Review of the World, supra note 163.
331. Roosevelt Praises Some Acts of Taft, N. Y. Times, Sept. 18, 1910, at 1 (reporting Syracuse speech).
332. Id. Roosevelt appears to have continued to refer to the "Bakeshop Case" as he toured New York. See, e.g., Roosevelt Quotes Gaynor, N. Y. Times, Oct. 30, 1910, at 4 (Roosevelt quotes an opinion in which Gaynor describes liberty as the liberty to work to death)
333. The Judge and the Rabbit, N. Y. Times, Sept. 18, 1910, at 12.
334. Roosevelt Challenged Enemies to Make Their Fight in the Open, Grand Forks Daily Herald (N. D.), Sept. 18, 1910, at 1;
335. see also Foes are Dared to Make Fight by Roosevelt, The Atlanta Constitution, Sep. 18, 1910, at B3.
336. Foes are Dared to Make Fight by Roosevelt, supra note 182, at B3. Roosevelt made similar claims in other places in New York.
337. See, e.g., Not in King Business, Wash. Post, Oct. 18, 1910, at 1 (Roosevelt criticizes courts and refers to the so-called "Bakeshop Case.").
338. People's Rule Theme of Col. Roosevelt, Dallas Morning News, Mar. 21, 1912, at 1 (review of constitutional decisions). The state recall proposal was exceedingly controversial. Willard Hurst once wrote that this position was "opportunistic." William Ross writes that "it gave [Roosevelt] an issue on which he could out-La Follette La Follette." Ross, supra note 106, at 138-39. Senator La Follette tried to mobilize the progressive side of the Republican Party for his 1912 presidential campaign. Id. There is no doubt that the judiciary was an easy political target and was likely to get Roosevelt a number of working-class votes. On the other hand, the fact that his criticism both pre-and post-dated the 1912 campaign, and reached back to his days in the New York legislature, when the New York Court of Appeals struck down attempts to regulate the cigar industry, may suggest that Roosevelt was a popular constitutionalist at heart.
339. See id. at 139-40. Roosevelt would claim that he was fighting the Socialists, and indeed elimination of judicial review was part of the Socialist platform in the 1912 campaign. Id. at 141, 151.
340. The Judge and the Rabbit, supra note 181, at 12.
341. T. R. Criticizes Court Again, Wash. Post, Aug. 3, 1911, at 3 (discussing the "bakeshop case")
342. T. R. for Court Curb, Wash. Post, Oct. 21, 1911, at 1 (using the "bakeshop case" again as an example). Roosevelt's criticisms of other decisions, such as a New York state decision against worker's compensation legislation, ultimately came back to Lochner. Extension of Popular Power, Bankers' Mag., June 11, 1911, at 712 (quoting Roosevelt: "It is out of the question that the courts should be permitted permanently to shackle our hands as they would shackle them by decisions as this, as... the decision in the bakeshop cases shackled them."). For other references to the Bakeshop Case during the campaign
343. see Theodore Roosevelt, Judges and Progress, Outlook (N. Y., N. Y.), Jan. 6, 1912, at 40;
344. Theodore Roosevelt, The Right of the People to Rule, Outlook (N. Y., N. Y.), Mar. 23, 1912, at 618;
345. see also Maud Malone Stops Roosevelt, N. Y. Times, Mar. 26, 1912, at 1 (Bakeshop Case)
346. Roosevelt Answers Cry of Revolution, supra note 133, at 1 (Bakeshop Case)
347. Roosevelt Assails Political Enemies, N. Y. Times, Aug. 18, 1912, at 1 (Bakeshop Case)
348. Roosevelt Hits At Taft Again, N. Y. Times, Mar. 21, 1912, at 1 (Bakeshop Case)
349. T. R. Tears Into Taft, Wash. Post, May 21, 1912, at 1 (Bakeshop Case)
350. Will Support Nominee, Declares Roosevelt, Boston Daily Globe, Feb. 27, 1912, at 1 (Bakeshop Case). This provoked responses from some, like Harlan's son, who claimed to disavow Roosevelt's reliance on his father.
351. See its T. R.'s Doctrine, Wash. Post, July 11, 1912, at 3 (Bakeshop Case).
352. See T. R. Tears into Taft, supra note 186, at 1.
353. Id.
354. Id at 4.
355. Id.
356. People's Rule Theme of Col. Roosevelt, supra note 184, at 1.
357. William Howard Taft, Speech of William Howard Taft Accepting the Republican Nomination for the President of the United States (Aug. 1, 1912), S. Doc. No. 62-902, at 11 (1912).
358. All Taft Wants Is A Square Deal, N. Y. Times, Mar. 20, 1912, at 4 (honey-fugled)
359. see also Ross, supra note 106, at 149 (supreme issue of the campaign).
360. Roosevelt Cries War to Knife on Both Old Parties, supra note 136, at 1 (referring to Bakeshop Case)
361. Roosevelt Warns of Judicial Perils, N. Y. Times, Nov. 8, 1913, at 6 (same).
362. Warren, supra note 19, at 295;
363. see also Charles Warren, A Bulwark to the State Police Power-The United States Supreme Court, 13 Colum. L. Rev. 667 (1913) [hereinafter Warren, Bulwark].
364. Warren, Bulwark, supra note 195, at 667;
365. see also The Federal Supreme Court, Atlanta Const., Apr. 12, 1913, at 4;
366. Jerome Michael, The Supreme Court A National Bulwark, Atlanta Const., Apr. 12, 1913, at 4.
367. Warren, Bulwark, supra note 195, at 668.
368. A Progressive Court, N. Y. Times, Apr. 7, 1913, at 8.
369. Tom Fitch, Our Genuinely Progressive Supreme Court, L. A. Times, Apr. 18, 1913, at II-6;
370. see also The Federal Supreme Court, supra note 196, at 4; Michael, supra note 196, at 4.
371. Fitch, supra note 199, at 116.
372. Roosevelt Cries War to Knife on Both Old Parties, supra note 136, at 1;
373. Roosevelt Warns of Judicial Perils, supra note 194, at 6.
374. See, e.g., Roosevelt Warns of Judicial Perils, supra note 194, at 6.
375. Theodore Roosevelt, The Right of the People to Review Judge-Made Law, 97 Outlook 843, 845 (1911).
376. See, e.g., Colonel Roosevelt on the Big Stick and the Square Deal, supra note 163, at 2. Roosevelt analogized to the Dred Scott decision: "It... [was] necessary to reverse the Dred Scott case in the interest of the people against slavery and privilege; just as later it became necessary to reverse the New York Bakeshop case in the interest of the people against that form of monopolistic privilege which puts human rights below property rights where wage-workers were concerned." Theodore Roosevelt, Chapters of a Possible Autobiography, Boston Daily Globe, Feb. 1, 1914, at SM10.
377. 208 U. S. 412 (1908).
378. Mr. Taft on the Judiciary, Morning Oregonian, June 3, 1914, at 10.
379. Id.
380. Building Up Industrial Liberty, Outlook (N. Y., N. Y.), Apr. 26, 1916, at 939 (discussing Lochner in relation to the Brandeis brief filed in Muller v. Oregon).
381. The Oregon Ten-Hour Law for Men Appealed Again, Outlook (N. Y., N. Y.), Mar. 7, 1917, at 399 (discussing Lochner).
382. I say "appeared to embrace" because fairly salient cases of this period showed that the Court was willing to uphold social reformist legislation. See Wilson v. New, 243 U. S. 332 (1917) (upholding the power of the Interstate Commerce Commission, and a federal statute that mandated an eight-hour day for railroad workers)
383. Hoke v. United States, 227 U. S. 308 (1913) (White Slave Act)
384. Second Employers' Liab. Cases, 223 U. S. 1 (1912) (worker's compensation schemes)
385. Hipolite Egg Co. v. United States, 220 U. S. 45 (1911) (Pure Food and Drug Act). Hostility to labor, meanwhile, continued.
386. See, e.g., Hitchman Coal and Coke Co. v. Mitchell, 245 U. S. 229 (1917).
387. See Burdick, supra note 103, at 162 ("[T]he Lochner case was in effect overruled....")
388. Jackson Harvey Ralston, Shall We Curb the Supreme Court?, 71 Forum 561 (1924).
389. Hammer v. Dagenhart, 247 U. S. 251 (1918)
390. see also Child Labor Law Invalid, Outlook (N. Y., N. Y.), June 12, 1918, at 245, 248 (referring to Bakeshop Case). According to William Ross, the Court's invalidation of child labor laws in Dagenhart was the spark that lit the fires of criticism against the Court in the years 1922-24. Ross, supra note 106, at 169.
391. See, e.g., Bailey v. Drexel Furniture, 259 U. S. 20 (1922) (second child labor case).
392. Ross, supra note 106, at 194.
393. Id. at 218; see also Five to Four Decisions As Menace to Respect for Supreme Court, N. Y. Times, Feb. 18, 1923, at XXI (speech by Idaho Senator William Borah referring to Lochner).
394. 261 U. S. 525 (1923).
395. Id. at 570 (1923) (Holmes, J., dissenting).
396. Does the Constitution Prevent Justice?, Outlook (N. Y., N. Y.), Apr. 18, 1923, at 694. ("It is significant that, in finding the National Minimum Wage Law invalid, the Supreme Court cited a decision which the Chief Justice assumed had been overruled and Mr. Justice Holmes supposed 'would be allowed a deserved repose.' This is the decision in the famous, or, some would say, the notorious Lochner case.").
397. See also The Minimum Wage Decision, 96 Cent. L. J. 147 (1923) (reprinting Holmes's dissenting reference to Lochner as a decision he "had supposed... would be allowed a deserved repose")
398. Ralston, supra note 211, at 561.
399. Law the Servant of Life, 130 Nation 534 (1930) (criticizing the Court and using as an example a law restricting "bakeshops" to ten hours a day).
400. See, e.g, A Review of the World, supra note 163 ("Mr. Roosevelt is no lawyer, and his description of these two court decisions has been promptly attacked as entirely wrong and wholly misconceived.").
401. See Pound, supra note 16;
402. see also Horwitz, supra note 91, at 34 ("Roscoe Pound's powerful article on 'Liberty of Contract'... represented the most important early reaction of legal Progressivism to the Lochner decision and its progeny.").
403. Pound, supra note 16, at 454-55 ("The late President [referring to Roosevelt] has told us that it is because individual judges project their personal, social and economic views into the law.").
404. Id. at 457.
405. Id.
406. Id. at 463 ("Legislation designed to give laborers some measure of practical independence, which, if allowed to operate, would put them in a position of reasonable equality with their masters, is said by courts, because it infringes on a theoretical equality, to be insulting to their manhood and degrading, to put them under guardianship, to create a class of statutory laborers, and to stamp them as imbeciles." (footnote omitted)).
407. See Richard Pildes, Conceptions of Value in Legal Thought, 90 Mich. L. Rev. 1520, 1531 (1992).
408. Pound, supra note 16, at 479 ("In Lochner... the Supreme Court... took the reactionary view, as it had fairly become by this time....").
409. Id. at 481 (discussing Adair and similar cases and stating that the position that the public had no interest in health and safety from preventing strikes was "practically the position from which we found the courts starting twenty years before").
410. Id. at 486.
411. This is not an idiosyncratic reading of the piece; as one commentator explained at the time, "it is fairly certain that Dean Pound and Mr. Justice Holmes were arguing not that liberty of contract ought not be included in the 'liberty' of the Fourteenth Amendment but that the concept was only relative and restricted by the demands of social well being." Brown, supra note 43, at 951.
412. Pound, supra note 16, at 480. Learned Hand also inveighed against the artificiality of the Court's distinctions in Lochner. Agreeing with Harlan's Lochner dissent, Hand argued that the eight-hour law should fall within the state's police power: "[I]f the measure may possibly promote the 'welfare' of the public, then it is valid. There would seem to be so direct a relation between the welfare of a worker and the hours of his work that no doubt could be raised about it " Learned Hand, Due Process and the Eight-Hour Day, 21 Harv. L. Rev. 495, 503 (1908).
413. "When the Progressives took over American constitutional history they pretty well wiped out internal-doctrinal and intellectual-approaches among the historians, leaving these to be cultivated... by political scientists like Corwin and Mcllwain. " Gordon, J. Willard Hurst, supra note 20, at 19.
414. Edward S. Corwin, The Supreme Court and the Fourteenth Amendment, 7 Mich. L. Rev. 643, 646 (1909) [hereinafter Corwin, Fourteenth Amendment];
415. see also Edward S. Corwin, The Basic Doctrine of American Constitutional Law, 12 Mich. L. Rev. 247 (1913)
416. Edward S. Corwin, The "Higher Law" Background of Constitutional Law I, 42 Harv. L. Rev. 49 (1928)
417. Edward S. Corwin, The "Higher Law" Background of Constitutional Law II, 42 Harv. L. Rev. 365 (1929). For other critiques, see Bruce, supra note 92;
418. Jetsam and Flotsam, 69 Cent. L. J. 362 (1909).
419. See Corwin, Fourteenth Amendment, supra note 232, at 643.
420. See, e.g., Felix Frankfurter, The Constitutional Opinions of Justice Holmes, 29 Harv. L. Rev. 683, 690 (1915) (explaining that the Court had "sought to pour into the general words of the Due Process Clause the eighteenth century 'law of nature' philosophy")
421. Walton Hamilton, The Path of Due Process of Law, 48 Ethics 269, 293 (1938) ("A constitutional doctrine contrived to protect the natural rights of men against corporate monopoly was little by little commuted into a formula for safeguarding the domain of business against the regulatory power of the state.")
422. Lowell J. Howe, The Meaning of "Due Process of Law" Prior to the Adoption of the Fourteenth Amendment, 18 Calif. L. Rev. 583, 593 (1930) ("The weakness in the theory... is that, when made a basis for judicial review, it merely substitutes the opinion of the judge for that of the legislator as to what is fundamentally just.").
423. Realism, which had many manifestations, was a movement that emphasized that judicial decisions were influenced by political or social considerations; the realists challenged the notion that doctrinal reasons were complete. See generally Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy 24 (2007) ("The real dispute between the Formalist and the Realist then concerns whether the reasons that determine judicial decision are primarily legal reasons or non-legal reasons.").
424. Brown, supra note 81, at 885.
425. For a review of some of the revisionism, see Bernstein, supra note 16 (summarizing this debate in the legal and historical literature)
426. Friedman, supra note 3; Rowe, supra note 21; White, supra note 23. In the historical literature, this move begins a good deal earlier.
427. See Gillman, supra note 11.
428. See Bernstein, supra note 3, at 12 ("historians have generally adopted Howard Gillman's thesis").
429. See Friedman, supra note 3, at 1402-28.
430. Gillman's argument that class legislation ideals explain the cases we today dub as "substantive due process" fails to take into account that class legislation was a doctrine of equal protection as much as of due process. On Gillman's confusion of equal protection with due process, see Nourse and Maguire, supra note 39.
431. Compare Kens, supra note 160, at 107 (describing Justice Field's view of due process as one which depended upon a "very narrow definition of what that power encompassed"), with Justice Field's statements in Crowley v. Christensen, 137 U. S. 86, 89 (1890) ("[T]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed... essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will.").
432. Bernstein, supra note 3.
433. See, e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 788 (1994) (criticizing the "property worship" of the Lochner era)
434. Cloud, supra note 6, at 556 (equating Lochner with strong rights).
435. See supra text accompanying notes 18-19.
436. See sources cited supra note 18.
437. Felix Frankfurter, Mr. Justice Holmes and the Constitution, 41 Harv. L. Rev. 121, 128 (1927).
438. See, e.g., McGerr, supra note 141;
439. see also Richard Abrams, Conservatism in a Progressive Era: Massachusetts Politics 1900-1912, at 3 (1964)
440. John Whiteclay Chambers I.I., The Tyranny of Change: America in the Progressive Era, 1900-1917 (1980)
441. Lewis L. Gould, Reform and Regulation: American Politics 1900-1916 (1978)
442. Richard Hofstadter, The Age of Reform (1955)
443. Marc Karson, American Labor Unions and Politics, 1900-1918;
444. William E. Leuchtenburg, The Perils of Prosperity (1958)
445. Arthur S. Link, Woodrow Wilson and the Progressive Era 1910-1917 (1954)
446. George E. Mowry, The Era of Theodore Roosevelt, 1900-1912 (1958)
447. David Sarasohn, The Party of Reform: Democrats in the Progressive Era (1989)
448. Robert H. Wiebe, Businessmen and Reform: A Study of the Progressive Movement (1962)
449. Michael Willrich, City of Courts: Socializing Justice in Progressive Chicago (2003). Though scholars have some deep historiographic differences in approaches toward the Progressive Era
450. see, e.g., Sarasohn, supra, at vii-xvii, few argue that the era embraced a minimal state.
451. Legal historians have, for some time, had great contempt for legal doctrine on the theory that it was simply the epiphenomenal reflection of greater social movements or interests. As Bob Gordon once expressed it: "The internal legal historian stays as much as possible within the box of distinctive-appearing legal things; his sources are legal, and so are the basic matters he wants to describe or explain.... The external historian writes about the interaction between the boxful of legal things and the wider society... and he is usually looking for conclusions about those effects." Gordon, J. Willard Hurst, supra note 20, at 11. The latter claim for an externalist view depends upon a causal assumption that society is prior to law. The questions this history raises are whether there are different, and more complex, relations at issue; how the internal and external operate in parallel; and how visions of the internal can affect our views of the external.
452. See supra note 19.
453. John Bronsteen, Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 Colum. L. Rev. 1516, 1533 (2008) (the focalism illusion holds that people tend to think of a focal event in a vacuum, without considering the progress of other life events; the analogy here is to the tendency of lawyers to focus on a single "great case" to the exclusion of the rest of legal doctrine).
454. Gordon, J. Willard Hurst, supra note 20, at 32.
455. This claim should not be confused with Barry Friedman's counter-revisionist argument that decisions such as Lochner suggest the need for judicial review to attain both social and legal legitimacy. Friedman, supra note 3. Friedman is correct to hint at a different history, but it is not because the strong rights Lochner story was true of the doctrine, as he implies. The counter-revisionist story was constructed by political reaction to the law, not the juridical understanding itself. To conclude that this was the real story of Lochner (as opposed to the more legal story told by Gillman and Bernstein) is to participate in the very debate that one is aiming to study, to simply take the side of law or politics, Warren or Pound.
456. For a good discussion of new legal realism, see Howard Erlanger, Bryant Garth, Jane Larson, Elizabeth Mertz, Victoria Nourse and David Wilkins, Forward, Is It Time for a New Legal Realism?, 2005 Wis. L. Rev. 335.
457. See also Greg Shaffer and Victoria Nourse, Varieties of New Legal Realism: Can A New World Order Prompt A New Legal Theory? 95 Cornell L. Rev. (forthcoming Nov. 2009) (manuscript on file with author).
458. As Mark Tushnet has put it, "[t]he idea of something that is simultaneously law and political is obviously unfamiliar to U. S. constitutional theorists today...." Mark Tushnet, Popular Constitutionalism as Political Law, 81 Chi.-Kent L. Rev. 991, 1005 (2006).
459. Relative to the alternatives, the "labor/socialism" explanation is far more parsimonious. It explains more (with less) than do explanations based on liberty, strong property rights, or a pro-business/anti-regulation bias, all of which should have led to the demise of vast numbers of laws that were in fact upheld. Simply think of the decisions typically associated with the "bad" Lochner era and one will find that these cases all involved unionization, wage, or hour restrictions. See Adkins v. Children's Hosp., 261 U. S. 525 (1923) (minimum wage)
460. Hammer v. Dagenhart, 247 U. S. 51 (1918) (child labor)
461. Coppage v. Kansas, 236 U. S. 1 (1915) (unionization)
462. Adair v. United States, 208 U. S. 161 (1908) (same)
463. Muller v. Oregon, 208 U. S. 412 (1908) (hours restriction). These cases are typically vilified because majorities no longer see regulations of child labor or minimum hours restrictions as anything but benign; to the extent the Court thwarted these majoritarian measures, it reversed itself during the Depression and New Deal era. United States v. Darby, 312 U. S. 100 (1941)
464. W. Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937)
465. Nebbia v. New York, 291 U. S. 502 (1934). My argument is not that the Court was invariably hostile to labor; in fact, the Court upheld important changes in employers' liability laws.
466. See, e.g., Second Employers' Liab. Cases, 223 U. S. 1 (1912). The Court did, however, reject basic labor laws (wage, hour and union membership restrictions) that conservatives associated with socialism. Fear of socialism also explains the Taft Court's hostility to price-fixing in the 1920s, which represents a significant percentage of the cases we now associate with the substantive due process jurisprudence of that period.
467. See, e.g., Ribnik v. McBride, 277 U. S. 350 (1928) (striking down regulation of prices charged by employment agencies)
468. Williams v. Standard Oil, 278 U. S. 235 (1928) (striking down regulation of gas prices)
469. Tyson and Bros. v. Banton, 273. S. 418 (1923) (striking down regulation of resale price of theater tickets).
470. Supra note 3.
471. See, e.g., MeadWestvaco Corp. v. 111. Dep't of Revenue, 128 S. Ct. 1498, 1510 (2008) (Thomas, J., concurring) ("Indeed, divining from the Fourteenth Amendment a right against disproportionate taxation bears a striking resemblance to our long-rejected Lochner-era precedents.")
472. Pruneyard Shopping Ctr. v. Robins, 447 U. S. 74, 93 (1980) ("If accepted, that claim would represent a return to the era of Lochner v. New Yort.... when common law rights were also found immune from revision by State or Federal Government.").
473. Friedman, supra note 3, at 1387-88, 1400 (suggesting that the revisionist account is impelled by a normative agenda).
474. See Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62, 90 n. 23 (1948) (Frankfurter, J.).
475. See Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004)
476. Mark Tushnet, Taking the Constitution Away from the Courts (1999) [hereinafter Tushnet, Taking the Constitution]. There are a variety of positions on popular constitutionalism; some emphasize the dialogic aspects of an inter-branch constitutionalism, and others emphasize social movements.
477. See, e.g., Robert Post and Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 Calif. L. Rev. 1027 (2004) (social movements)
478. Tushnet, supra note 255 (dialogic analysis). My own view is that a form of popular constitutionalism, dualist review, is required by constitutional structure. V. F. Nourse, Toward a New Constitutional Anatomy, 56 Stan. L. Rev. 835 (2000); Nourse, Vertical Separation, supra note 135.
479. Kramer seems to suggest that popular constitutionalism has died, a point that others reject. Compare Kramer, supra note 261, with William E. Forbath, Reflections on the Dark Side, The Progressive Constitutional Imagination, and the Enduring Role of Judicial Finality in Popular Understandings of Popular Self-Rule, 81 Chi.-Kent L. Rev. 967 (2006). I would go further and argue that popular constitutionalism is structurally determined, even if it rarely works to "reverse" any particular decision and even if the public remains, as Forbath rightly notes, wedded to a form of judicial finality.
480. See Nourse, supra note 18, at ch. 7 (recounting in detail the hostility of the public to FDR's court-packing plan despite their deep disagreement with the Court's decisions).
481. Tushnet, Taking the Constitution, supra note 261.
482. Nourse, Vertical Separation, supra note 135, at 781-88.
483. In this sense, I agree with William Forbath that "[p]opular constitutional politics has never been motivated" by the principle of popular constitutionalism so much as the immediate political demands of the hour. Forbath, supra note 262, at 968.
484. United States v. Darby, 312 U. S. 100 31941) (reversing the child labor case-Hammer v. Dagenhart, 247 U. S. 251 (1918))
485. W. Coast Hotel v. Parrish, 300 U. S. 379 (1937) (reversing decision on minimum wage).
486. Under an extreme view of popular constitutionalism, all constitutional decisions should be taken from the Court and given to the people, a procedure that would appear to sanction majoritarian and illiberal decisions from Japanese concentration camps to eugenics to, in the worst case scenario, a decision to one day disband the Congress or dismiss the President. This is what causes concern with the theory.
487. The first person to recognize this was, in my view, Ackerman, supra note 40, at 269. Whatever one thinks of Ackerman's history, he is right that the amendment process is a quite limited means of constitutional change and that its difficulty has forced the use of alternate means: the separation of powers.
488. See generally Scalia, supra note 66 (arguing for a closer historical textual reading)
489. see also Akhil R. Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999) (emphasizing not only textual, but intratextual, analysis).
490. See Eric Hobsbawm and Terence Ranger, The Invention of Tradition (10th ed. 2003).
491. See, e.g., Nourse, supra note 18, at ch. 7;
492. Buck v. Bell, 274 U. S. 200 (1927).
493. See Primus, supra note 28, at 180 ("It is well established that a major change in American conceptions of rights occurred sometime between the 1920s and the 1960s, but many scholars fail to give sufficient emphasis to anti-totalitarianism and especially anti-Nazism when trying to account for that transformation. ").
494. See Nourse, supra note 18, at ch. 7 (explaining this history and how it begins before World War II).
495. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944)
496. Skinner v. Oklahoma, 316 U. S. 535 (1942)
497. United States v. Carolene Prods. Co., 304 U. S. 144 (1938).
498. See Roe v. Wade, 410 U. S. 113 (1973)
499. Griswold v. Connecticut, 381 U. S. 479 (1965).
500. See supra text accompanying notes 61-65.
501. Derrick A. Bell, Jr., Comment, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518, 523 (1980).
502. Planned Parenthood of Se. Pa. v. Casey, 505 U. S. 833, 874 (1992); Roe, 410 U. S. at 153.
503. 539 U. S. 558 (2003).
504. Id. at 578-79.