The Vetting - Lochner Reference Shows Bell's Continuing Influence on Obama

In continuing his attack on the Supreme Court on Tuesday, President Barack Obama made a mistaken reference to the Lochner decision--an error that suggests just how deeply Derrick Bell affected his thinking about the Court and the Constitution.

James Taranto of the Wall Street Journal noted that Obama, facing questions from journalists, had cited the case of Lochner v. New York (1905) as the last time the Supreme Court had overturned an economic law passed by Congress:

Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we're going back to the '30s, pre-New Deal.

Obama was wrong on three counts: Lochner was not decided in the 1930s; it was not the last time an economic law was overturned; and it involved a state law, not a federal one.

But Obama's interpretation of Lochner is an interesting one, and points directly to the influence of Derrick Bell and his radical Critical Race Theory approach to constitutional jurisprudence. 

Law students are typically taught about Lochner as a cautionary tale, a fable about the evils of a conservative judiciary determined to strike down economic legislation, allegedly to protect entrenched interests.

The dissenting opinion of Justice Oliver Wendell Holmes, Jr., is often cited--in particular, his declaration that the Constitution does not enshrine laissez faire economics or "Mr. Herbert Spencer's Social Statics." But law professors often leave out Holmes's full statement, in which he also says the Constitution does not embody economic "paternalism," either.

The true context of Lochner was not a judicial system determined to defend the rich, but one determined to defend the freedom of contract--which, in the post-Civil War era, was felt to be a necessary corrective to laws and decisions that had protected slavery.

The Supreme Court of the New Deal era, after pressure from President Franklin Delano Roosevelt, eventually abandoned Lochner and granted the federal government far greater power to regulate economic activity. 

For left-wing legal pundits, like CNN's Jeffrey Toobin, that switch--following presidential bullying--was enough to establish that "national economic problems require national solutions," and ought to have paved the way for Obamacare.

This was an opinion seconded by Derrick Bell. For Bell, the Lochner case was particularly important. In the same 1984 speech in which he elucidated views on the Warren Court that Obama echoed years later, Bell spoke about the Lochner decision in detail as the last gasp of conservatism -- a conservatism, he does not bother to add, that must die an ignominious death: 

The deep depression of the 1930s brought an end to the Lochner era, a 50 year period when the Supreme Court and much of the country espoused substantive due process and, often enough, summary invalidity for any government measure intended to aid the poor or alleviate the worst abuses of big business. It required the perspective provided by the country's economic troubles for the realization to sink in that the right of contract and the protection of property rights would be meaningless under anarchy...

The Court decided that the error of the Lochner era was its involvement in economic arrangements, and it promptly withdrew Fourteenth Amendment protection from those claiming economic-based discrimination at the hands of the state....

For Bell, the Lochner case was important because it represented the last gasp of conservative jurisprudence. 

It is noteworthy, then, that Obama went straight to Lochner in looking for a Supreme Court precedent overturning an economic law, and that he thought it had been decided more recently than 1905. 

Just as Obama used Bell's legal writings to shape his students' understanding of the Constitution, so they continue to shape his own.


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