During his old-fashioned, “talking filibuster” of John Brennan’s nomination as CIA Director, Sen. Rand Paul (R-KY) called for President Barack Obama “to re-think the Lochner case” en route to strengthening protections of individual rights against, among other things, drone strikes. Obama referred specifically to the Lochner case in 2012, when he tried to argue that the Supreme Court should not attempt to overturn Obamacare.
The Lochner v. New York case of 1905 is one of the most important decisions in the history of the Supreme Court, and has had a profound effect on legal and political thought for more than a century. The Court struck down a New York law limiting the working hours of bakery employees, on the grounds that freedom to contract, while not explicitly in the Constitution, was protected by the Fourteenth Amendment’s due process clause.
The Progressive movement hated the Lochner decision because it limited state power, particularly the power of the government to regulate economic activity. The left also denounced the decision as an archetype of judicial activism, and set about demonizing the decision and the Court that produced it, especially during the New Deal era of the 1930s, when the Court struck down many of Franklin Delano Roosevelt’s ambitious new programs.
When the Court ultimately rejected the Lochner limits on state regulatory power in 1937–after intense pressure from the Roosevelt administration–the left celebrated. And the left-leaning legal academy has continued to teach the Lochner case as though it were a profound injustice, the result of a plutocratic Supreme Court doing what it could to protect rich corporate interest from state and federal government intervention to protect the workers.
Curiously, conservatives began invoking Lochner as a negative precedent in the 1970s, after the Court ruled in Roe v. Wade that there was a due process right to privacy. Suddenly, the “substantive due process” right that the left had rejected in Lochner became the basis of pro-choice arguments. Conversely, conservatives began to criticize substantive due process–and to echo the complaints Progressives once made about judicial activism.
One of the amazing observations made by legal scholar David E. Bernstein in his brilliant book, Rehabilitating Lochner (University of Chicago Press, 2011), is that the old Progressives were so committed to upholding state powers that they were prepared to tolerate–and even defend–state laws enforcing racial segregation. It was the pro-Lochner camp that defended civil rights–and indeed, many early civil rights cases relied on Lochner‘s logic.
After the Second World War, when parts of the Democratic Party began to feel a sense about its embrace of the segregationist policies of Jim Crow, the left began to see the courts as an important tool in undoing official racism. The left never gave up on state power, as such; it just sought to confine state power to the economic arena, while using the courts to protect civil liberties. But that did not mean the left embraced Lochner.
On the contrary, the left continued to regard Lochner as a retrograde decision–and added a new accusation: that supporters of Lochner were in fact racists. That claim grew out of the argument that state economic power was necessary to reverse not just economic inequality in general, but racial inequality in particular. Supporting freedom of contract meant supporting a laissez-faire system under which, the left argued, minorities suffered.
The reality, however, was that Lochner‘s embrace of freedom of contract owed its intellectual roots to the “free labor” ideology that accompanied the abolitionist movement prior to the Civil War, and that reigned supreme in the decades that followed it. For similar reasons, Republicans became the champions of civil rights, while the Democratic Party that had once supported slavery now supported state-enforced segregation through statism.
Revisiting Lochner, as Paul suggested today, does not mean giving up on opposing Roe v. Wade. It is possible to support the idea of substantive due process, or the doctrine of natural law that preceded it, without backing the contention that the right to abortion would have been considered by the Framers of the Constitution to be a natural right implicitly incorporated into the document or reserved to the people by the Tenth Amendment.
Rather, as Paul indicated, returning to Lochner would mean returning to a vision of strong individual liberties, weaker government regulation of the economy, and affirming the idea that our natural rights are prior to the Constitution, not the other way around. Regardless of whether he is wrong or right about the power to use drones against U.S. citizens who have joined our enemies, he is right about the rights that precede that power.