Un-’Loch’-ing Liberty

by Don Boudreaux on September 8, 2011

in Books, Civil Society, History, Law, Nanny State, Regulation

Here’s a letter to the Washington Post:

George Will eloquently summarizes the lesson of my GMU colleague David Bernstein’s powerful book Rehabilitating Lochner (“Lochner and Liberty,” Sept. 8).  David’s book centers on the 1905 U.S. Supreme Court decision that properly affirmed, in accord with the Ninth amendment, what Mr. Will accurately describes as “an unenumerated right of individuals, the liberty of contract.”

For this reason, Lochner has indeed been “the liberals’ least favorite decision.”

But many conservatives – including Chief Justice Roberts and Justice Scalia – routinely join “Progressives” in bashing Lochner.  No less a conservative icon than Robert Bork derides Lochner as being “the symbol, indeed the quintessence, of judicial usurpation of power.”*

This overreaction by conservatives to Warren Court hyperactivity injudiciously expels the Ninth and Tenth amendments from the Constitution and, consequently, elevates majoritarian politics to a role in Americans’ lives that would appall the very framers whose constitutional design conservatives claim to champion.

Donald J. Boudreaux

* Robert Bork, The Tempting of America (New York: Free Press, 1991), p. 44.

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Michael September 8, 2011 at 10:21 am

I’m loathe to admit it, but I agree with Bork. The decision was every bit as arbitrary as the law it struck down. The appeal to the sanctity of the contract was a canard. The court, as Homes pointed out in his dissent, no more believed in that sanctity here than they did in the case usury and Sunday shopping.

What should we fear more? The power of the legislature, with its high turnover (relative to the Supreme Court) or the power of nine individuals appointed for life who suffer little consequences for their decisions?

Don Boudreaux September 8, 2011 at 10:34 am

Are you saying that the Ninth amendment should be ignored?

Michael September 8, 2011 at 10:56 am

Not at all. But neither should we ignore the Tenth Amendment or the dangers of judicial activism.

Had court based its decision on principle I’d agree with it, but the decision was NOT based on principle. I have no desire to subject myself to the whims of nine men who have no fear of repudiation.

Don Boudreaux September 8, 2011 at 11:01 am

Have you read David Bernstein’s book?

David goes into this matter far more deeply than I ever could. I’ll content myself here to saying that a judiciary that strikes DOWN legislation is hardly a body to which people are subject to.

Michael September 8, 2011 at 11:49 am

I don’t recall having read it. When I have a moment I’ll check it out–my To-Read list is already quite long.

Invisible Backhand September 8, 2011 at 10:53 am

Some background:

“In 1895, the New York Legislature unanimously enacted the Bakeshop Act, which regulated sanitary conditions in bakeries and also prohibited individuals from working in bakeries for more than ten hours per day or sixty hours per week. In 1899, Joseph Lochner, owner of Lochner’s Home Bakery in Utica, was indicted on a charge that he violated the one hundred and tenth section of article 8, chapter 415, of the Laws of 1897, in that he wrongfully and unlawfully required and permitted an employee working for him to work more than sixty hours in one week and was fined $25. For a second offense in 1901, he drew a fine of $50 from the Oneida County Court.

Lochner chose to appeal his second conviction. ”


Don Boudreaux September 8, 2011 at 11:41 am

Thank you. This information, and much more, is in David Bernstein’s book.

vikingvista September 8, 2011 at 2:02 pm

So Lochner was a hero of civil disobedience.

BTW, “required” in reference to an employer request means quite a different thing than “required” in reference to a government demand. The softness of one hardly justifies the hardness of the other.

SweetLiberty September 8, 2011 at 11:14 am

The rest of the Constitution is generally ignored, so why bother over this Amendment? Government limited to enumerated powers my arse. Government is whatever Obama and Co. says it is, as are our “rights”.

You have the right to be groped at the airport. You have the right to be forced to pay for health insurance. You have the right to pay for failing public education. You have the right to be protected from trading freely across borders. You have the right to have your paycheck slashed to support the Social Security Ponzi scheme. You have the right…

Wow, it’s exhausting listing all our rights! Thank goodness the 9th Amendment is there to protect our unenumerated rights! Does anyone really think – despite court decisions – that we’ve won this battle?

Methinks1776 September 8, 2011 at 12:59 pm

You can shorten that to “you have an obligation to submit”.

From the moment the constitution came into existence, government has been trying to find ways around restrictions placed on it. Pretty much the same way we all try to find ways around the restrictions placed on us.

It’s always been us against them. The founders understood that and gave us the right to bear arms.

vikingvista September 8, 2011 at 2:14 pm

Jefferson was correct in his assertions in the DoI. But Americans were well armed and not about to disarm at the time the Founders supposedly gave them that right in the CotUS.

All the Founders gave Americans that Americans didn’t already have, was an irrevocable centralized monopoly authority whose power had only one direction to ratchet–up.

People look at the bill of rights and admire the protections our wise Founders bestowed upon us. Such people forget just who those insisting on the Bill of Rights were trying to protect us against–they were meant to protect us from the institutions created by the rest of the CotUS. And even that turned out to be little more than a speed bump.

The antifederalists have been vindicated.

Methinks1776 September 8, 2011 at 4:22 pm

I don’t particularly like the term “gave us the right”, on second thought. “Attempted to protect” seems more accurate.

The Founders attempted to protect certain rights. Yes, it was just a speed bump, but where else was there even a speed bump? If nothing else, those rights changed the course of American culture. IMO, positively.

vikingvista September 8, 2011 at 6:02 pm

You’re forgetting that the Founders created the very threat they ostensibly wanted to defend against. The Bill of Rights wasn’t meant to protect Americans from the British. It was meant to protect Americans from the Constitution itself. Americans were already free. The Enlightenment ideas of liberty were already there. Those who correctly foresaw the threat to liberty that the Constitution embodied, insisted on the Bill of Rights when their opposition to the Constitution failed.

Now if America was transitioning at the time from a tyranny, I would agree with you. But it wasn’t. It was transitioning from a freer condition to a less free one. Given what Americans had achieved, the CotUS was an unfortunate setback.

Methinks1776 September 8, 2011 at 6:53 pm

You’re forgetting that the Founders created the very threat they ostensibly wanted to defend against.

I’m not forgetting that. However, as usual, you make a good point. I hadn’t thought of it that way.

BZ September 8, 2011 at 4:13 pm

>> The founders understood that and gave us the right to bear arms.

I hope you found something to knock on when you said that.

Economic Freedom September 8, 2011 at 5:22 pm

The founders understood that and gave us the right to bear arms.


geoih September 8, 2011 at 11:19 am

I think the general aversion of the legal profession to Lochner and the 9th Amendment are perfect examples of why libertarians should not put any more stock in the judiciary to protect liberty than the legislature or the executive.

Let’s face it, since the New Deal, the courts have been far more interested in protecting the state, than protecting individuals (e.g., “state interest”, what the hell does that even mean?).

vikingvista September 8, 2011 at 2:24 pm

Even many libertarians don’t appreciate the irony of creating a monolithic power to protect liberty.

ccresci September 8, 2011 at 11:19 am

A “strict constructionist” like Bork would deride Lochner as trampling on the rights of the States as the power to set work rules is not granted to the Federal government. However, the right to contract with another voluntary party is inalienable. There are more checks on the power of government than are written in the Constitution because we have the Declaration of Independence.

vikingvista September 8, 2011 at 2:34 pm

“There are more checks on the power of government than are written in the Constitution because we have the Declaration of Independence.”

Very good point. The DoI is not the law of the land. Sadly, a great many people selectively choose to not recognize any supralegal authority. They argue ethical points from legalisms whenever it suits them (though they contradict this view every time they make a value judgement on any institution’s laws).

Greg Webb September 8, 2011 at 4:48 pm

Vik, you said, “The DoI is not the law of the land.” And, you are right in saying this. But, the Declaration of Independence reveals the policy reasons for the Founding Fathers creation of the Constitution. In that respect, the Declaration, along with the Federalist Papers, explains and gives better meaning to the words composing the Constitution.

vikingvista September 8, 2011 at 6:16 pm

As do a great many philosophical treatises from that time and earlier. But that obvious authority–the principles used to justify the state’s laws–is denied by the hypocrisy of appeals to legality. People who deny the existence of theft, murder, slavery, extortion, etc. as committed by agents of a state in accordance with that state’s laws, are denying themselves the capacity to judge laws or to even understand how laws are created. It is hypocrisy, because without exception, such people also see fit to at time criticise some of the state’s laws, or even to advocate for new ones. They do so using the same source of authority that they deny others in their legalistic responses to principled arguments.

George Leef September 8, 2011 at 6:47 pm

Is Lochner an instance of judicial overreaching? I think not. Article 1, Section 10 precludes states from passing laws that impair the obligation of contracts. Punishing an employer for not rewriting his contracts to comport with a statute, especially one that reeks of special interest pleading, looks like it falls under that language. The drafters of the Constitution certainly were not indifferent to contractual freedom. Then there is the 14th Amendment’s language that prohibits any state from abridging the “privileges or immunities” of citizens. In the Slaughterhouse Cases in 1873, the Supreme Court destroyed the intended power of that prohibition by ruling that it only meant the privileges or immunities of being a citizen of the United States, allowing state governments to whittle away economic freedom for their own citizens — in that case, a monopoly on slaughtering cattle in New Orleans given to a favored (white-owned) company. The Court in Lochner used a different route to reach its decision, but it should have simply overruled Slaughterhouse.

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