Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform - Hardcover

Bernstein, David E.

Hardcover

ISBN 10: 0226043533 ISBN 13: 9780226043531

Verlag: University of Chicago Press, 2011

Inhaltsangabe

In this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of Lochner v. New York. This 1905 decision invalidated state laws limiting work hours and became the leading case contending that novel economic regulations were unconstitutional. Sure to be controversial, Rehabilitating Lochner argues that the decision was well grounded in precedent—and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents.
 

Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, Rehabilitating Lochner argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since.

Über diesen Titel

Über die Autorin bzw. den Autor

 

David E. Bernstein is Foundation Professor at the George Mason University School of Law and the author of several books, including, most recently, You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws.

Auszug. © Genehmigter Nachdruck. Alle Rechte vorbehalten.

REHABILITATING LOCHNER

Defending Individual Rights against Progressive ReformBy DAVID E. BERNSTEIN

THE UNIVERSITY OF CHICAGO PRESS

Copyright © 2011 David E. Bernstein
All right reserved.
ISBN: 978-0-226-04353-1

Contents

Acknowledgments..............................................................................viiIntroduction.................................................................................11. The Rise of Liberty of Contract...........................................................82. The Lochner Case..........................................................................233. Progressive Sociological Jurisprudence....................................................404. Sex Discrimination and Liberty of Contract................................................565. Liberty of Contract and Segregation Laws..................................................736. The Decline of Liberty of Contract, and the Rise of "Civil Liberties".....................907. Lochner in Modern Times...................................................................108Conclusion...................................................................................125Notes........................................................................................131Index........................................................................................187

Chapter One

The Rise of Liberty of Contract

Legal scholars across the political spectrum have long agreed that Lochner v. New York and other cases applying the liberty of contract doctrine to invalidate legislation were serious mistakes. This is hardly unusual. Many constitutional doctrines adopted by the Supreme Court have come and gone over the last two hundred–plus years. But the ferocity and tenacity of the liberty of contract doctrine's detractors is unique. For more than one hundred years, critics have argued that Lochner and its progeny did not involve ordinary constitutional errors, but were egregious examples of willful judicial malfeasance.

One common criticism is that the Court's use of the Fourteenth Amendment's Due Process Clause to protect substantive rights, including liberty of contract, was absurd as a matter of textual interpretation. John Hart Ely famously quipped that "substantive due process" is a contradiction in terms, akin to "green pastel redness." This line of attack has persisted even though it is anachronistic; the pre–New Deal Supreme Court's approach to interpreting the Due Process Clause did not recognize the modern categories of "substantive" and "procedural" due process.

The liberty of contract doctrine's academic foes have also asserted that it sprang ex nihilo out of Supreme Court justices' minds in the 1890s with the intent to favor the interests of big business and suppress the working class. The Lochner Court's justices are said to have been motivated by pernicious Social Darwinist ideology, and to have believed that "the strong could and should exploit the weak so that only the fittest survived."

The true story of the development of a substantive interpretation of the Due Process Clause, and of Supreme Court's subsequent adoption of the liberty of contract doctrine, is a far cry from this traditional morality tale of a malevolent Supreme Court serving as a handmaiden of large-scale capital. This chapter synthesizes and elaborates on existing revisionist scholarship. I draw two major conclusions. First, the idea that the guarantee of "due process of law" regulates the substance of legislation as well as judicial procedure arose from the long-standing Anglo-American principle that the government has inherently limited powers and the individual citizen has inherent rights. Second, the liberty of contract doctrine, while controversial even in its own heyday, evolved from long-standing American intellectual traditions that held that the government had no authority to enforce arbitrary "class legislation" or to violate the fundamental natural rights of the American people.

THE DEVELOPMENT OF A SUBSTANTIVE INTERPRETATION OF "DUE PROCESS OF LAW"

Before the Civil War

In the early nineteenth century, leading American legal theorists recognized that the united States federal government was a government of limited and enumerated powers, restrained by a written Constitution. Some jurists also thought that the exercise of federal power was limited by unenumerated first principles. Unlike the federal government, which could exercise only the powers delegated to it under the united States Constitution, states were thought to have inherent sovereign powers inherited from the British Parliament. State legislatures' power, therefore, could be restrained only by express federal or state constitutional provisions that limited their authority. Litigants opposing exercises of state power naturally turned to these provisions to support their positions.

Many state constitutions banned their governments from taking people's liberty or property without "due process of law," or except according to the "law of the land"—concepts that dated back to the Magna Carta. These concepts became associated with the idea that legislatures acted beyond their inherent powers when they passed laws that amounted to arbitrary deprivations of liberty or property rights.

Starting in the 1830s, a series of state court judicial opinions established that certain types of acts passed by legislatures could not be valid legislation, which naturally led to the conclusion that enforcing them could not be due process of law. Courts asserted that inherently invalid acts included legislation that purported to exercise judicial powers, such as by granting new trials; legislation that applied partially or unequally; and legislation that took or taxed private property for private purposes.

By the late 1850s, significant judicial authority held that enforcing the principle of due process of law required judges to carefully scrutinize the purpose of legislation and the means employed to achieve legislative ends. The development of this broad conception of due process of law was uneven, accepted explicitly by only some American jurisdictions, and applied mainly to the protection of vested property rights. Nevertheless, by 1857 numerous state constitutional law decisions held that due process or analogous constitutional provisions forbade legislatures from unjustly interfering with property rights.

Chief Justice Roger Taney's invocation of due process of law to protect substantive property rights in his infamous 1857 Supreme Court opinion in Scott v. Sandford thus had a considerable pedigree. Taney argued that the Fifth Amendment's Due Process Clause barred the federal government from banning slavery in the territories, because such a ban amounted to taking without due process of law the property of Southern slaveowners who traveled to those territories.

Robert Bork has claimed that Scott marked "the first appearance in American constitutional law of the concept of [what later came to be known as] `substantive due process.'" As we have seen, however, the role of due process in protecting substantive property rights was widely accepted before Scott. In addition to the state court opinions referenced above, five years before Scott the Supreme Court had stated, albeit in nonbinding dicta, that Congress would violate the Due Process Clause if it enacted legislation that deprived an...

Details zur Ausgabe

• Verlag: University of Chicago Press
• Erscheinungsdatum: 2011
• Sprache: Englisch
• ISBN 10: 0226043533
• ISBN 13: 9780226043531
• Einband: Gebundene Ausgabe
• Anzahl der Seiten: 194
• Kontakt zum Hersteller: The University of Chicago Press; https://press.uchicago.edu/index.html; ; 5801 S. Ellis Avenue; Chicago; IL; 60637; USA
• Verantwortliche Person: Buchbär; info@buchbaer.de; ; Weberstr. 67; Osnabrück; 49084; Deutschland