On my trip to Memphis, I read Lochner v. New York: Economic Regulation on Trial by Paul Kens. I had pretty high hopes for this book, because I really enjoyed Kens’ book on Stephen Field, despite some major flaws. I knew Kens wouldn’t think the same thing about Lochner that I think, but I hoped at least for a fair and insightful look into the case. I was sorely disappointed. This book, to put it simply, is a piece of crap.
Kens does not even try to understand, let alone explain, the reasons behind the majority’s holding. His loaded language and his conspiracy-theory style understanding of the Lochner era provides nothing helpful to the reader, and his own position with regard to constitutional law is so extreme that it was not even embraced by Justice Holmes in his radical dissent from that case. Kens portrays the Lochner majority as in the grip of “substantive due process,” but he fails to explain what that theory really is. He describes—over and over again—the views of the Lochner majority as “laissez-faire social Darwinism,” even thought not a word of Darwinism is to be found in the opinion or in the writings of the laissez-faire theorists of the day*; certainly not in the writings of Stephen J. Field, whom Kens also calls a Darwinist. But, as Louis Menand (no fan of the laissez-faire constitutionalists) writes, “What looks like Social Darwinism in the businessmen of Pullman’s generation was generally just a Protestant belief in the sanctity of private property. It had nothing to do with evolution.” The Metaphysical Club 302 (2001). That is certainly the case with Field. If any Supreme Court Justice can be called a Darwinist, it is Oliver Wendell Holmes, for crying out loud! (Kens does admit that “Field’s idea...was nothing more than an expression of puritan morality,” (p. 109) but he’s talking about a different idea.)
Even this is not the biggest flaw in Kens’ book. That comes from Kens’ repeated claim—absolutely devoid of factual basis—that Field and the Lochner majority were inventing the notion of liberty of contract out of thin air. He claims that due process, as originally conceived, “had nothing to do with the content of legislation,” and that Thomas Cooley invented the idea of substantive due process entirely. This, of course, entirely ignores cases like Anonymous, 2 N.C. 28, 30 (1794), or Hoke v. Henderson, 15 N.C. 1, 7-8 (1833), or the anonymous law review article The Security of Private Property, 1 Am. L. Mag. 318 (1842). He claims that the right to earn a living “had absolutely no basis in the law.” (p. 95) But this completely ignores the myriad 17th and 18th century cases upholding freedom of contract—cases I listed at exhausting length in my article The Right To Earn A Living, 6 Chap. L. Rev. 207 (2003).
Kens cannot be forgiven for overlooking cases such as the Case of the Monopolies, 77 Eng. Rep. 1260 (K.B. 1602), because Field refers to them thoroughly in his Slaughterhouse dissent. When Kens says that “[t]here was no basis for liberty of contract in common law, much less in constitutional law,” he provides no evidence, because he cannot—after all, William Blackstone said “[a]t common law every man might use what trade he pleased,” and Edward Coke said that “by the very common law, it was lawful for any man to use any trade thereby to maintain himself and his family; this was both lawful, and also very commendable,” that “at the common law, no man could be prohibited from working in any lawful trade, for the law abhors idleness,” and that “the common law abhors all monopolies, which prohibit any from working in any lawful trade.” Kens ignores these cases. And he makes no attempt to discuss the founders of the Constitution. He refers to writers like Arthur Latham Perry, for instance, but never once refers to John Locke. He ridicules “vague principles...[such as] ‘the liberty of citizens to acquire property and pursue happiness,’” (p 104-05) as though Stephen Field invented these terms—yet he doesn’t mention the Virginia Declaration of Rights of 1776, which declared that “all men are by nature equally free and independent, and have certain inherent rights...[including] the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” Can Kens be ignorant of these things? Or is the reality of the matter closer to what Roscoe Pound says in a sentence that Kens quotes, but seems not to understand—when Pound says that opposition to Lochner “was in part a movement for the adjustment of legal doctrines to human conditions they are to govern and away from first principles” (p. 151, emph. orig.)?
Because Kens refuses to acknowledge that the right to earn a living had at least three centuries of legal history behind it by the time Lochner was decided, he is bewildered by the seemingly gargantuan conspiracy among the legal profession at the time to perpetuate what he thinks of as a vast lie in Lochner. Now, if there’s one thing being a lawyer has taught me, it’s that there is almost always some argument to be made for a position, so if you think your opponent is really just crazy, then you’re probably misunderstanding him. Kens, however, seems to think the Court was truly beyond the theoretical pale, genuinely inventing things entirely out of their own minds. He is therefore repeatedly astonished by what he thinks are strange ironies and evil silences, when in fact these just reveal that his theory fails to account for numerous theoretical details that would fit very well into a more robust account of the case.
On top of his utter ignorance—or purposeful silence—about the pedigree of the right to freely contract for labor, Kens adds apparently total ignorance of what substantive due process really means. For instance, he describes one case this way:
Judge Werner...conceded that the state had the authority to abolish employer defenses. But substituting a system of workmen’s compensation was to him another matter entirely. “One of the inalienable rights of every citizen is to hold and enjoy property until it is taken from him by due process of law,” he reasoned. “When our constitutions were adopted it was the law of the land that no man who was without fault or negligence could be held liable for injuries sustained by another.” Judge Werner concluded that having done just this, the workmen’s compensation law violated both federal and state due process guarantees. This was an ingenious line of reasoning. Though based upon procedural arguments, it sought to create a new fundamental right against which judges could test the substance of state legislation. (P. 167)
What? No—this is what substantive due process was all along. The theory of substantive due process, Professor Kens, is this: there is a difference between law and gang warfare. The state creates law. But because it is subject to the public choice effect, there is always the problem that the majority will use the apparatus of the state to do things that are wrong—for example, to despoil and enslave the minority of individuals. When this happens, what the state is engaged in is no longer law, but merely force. As such, when it deprives people of their rights for no legitimate public reason, but engages in preferential treatment simply on the basis of majoritarian force, the state is depriving the minority of property without due process of law—that is, outside of the law of the land. It has, essentially, passed a sentence on the minority by taking its property, without the minority having done anything wrong. As the American Law Magazine article I referred to (which was some 30 years before Slaughterhouse) put it:
It is certainly a principle, that the general powers of sovereignty are vested in the state governments...[which] are governments of general powers. Yet what are the general powers of government in a civilized society? Is there no lex legum, independent of express constitutional restrictions...? [S]uppose the legislature to pass a law arbitrarily depriving a citizen of life or liberty, without fault or crime on his part, must we look in the constitution for an express disaffirmance of such a power?
1 Am. L. Mag. at 334. See also Loan Ass’n v. Topeka, 87 U.S. (20 Wall.) 655, 662-64 (1874).
Now, you may certainly disagree with this theory—you may argue that there is no such law, no such “purpose” behind the state—you may even argue that anything the majority decides to do is automatically right, and therefore that the concept of “due process” is satisfied by the majority vote, end of story. That would be a good theoretical response to substantive due process. But to fail to explain what substantive due process really is, and instead to label the Lochner majority as “social Darwinists,” which they certainly were not, contributes no understanding to the reader. This is not scholarship, it is slander.
Yet Kens is so intent on this slander that he frequently contradicts himself. For instance, he argues that liberty of contract simply does not exist at all in the Constitution. Yet later he says that “[i]f what proponents of a double standard are seeking in the ‘spirit’ of the Constitution that justifies treating economic and noneconomic liberties differently, the history of ideas of which Lochner is a part demonstrates that the distinction is not there.” (p. 181). Yet this entirely undoes what he has argued so far in the book. If there is no distinction in the Constitution between economic and noneconomic liberty, and the Constitution protects “liberty,” (which it clearly does in the Fifth and Fourteenth Amendments), then where does Kens get off saying that the word “liberty” does not include liberty of contract?
Further, Kens admits several times that there was no evidence that over-work in bakeries actually was a health threat to bakers, and he admits that the New York Attorney General essentially conceded this point in the case. Yet he then claims that the Court was evil for not caring about the bakers. Also, Kens confesses that in 1937 the Court “suddenly reversed” itself, and endorsed “an unabashed expression of a reformer’s view of fairness,” by “[drawing] a new boundary for the police power,” (p. 176)—but he says this after trashing the Lochner Court for supposedly “inventing” new theories and imposing them on the nation. So it’s okay when the New Deal Court does it, but not when the Lochner Court does it?
There are many other problems with this book, but here’s one last example. Kens repeatedly says that the Lochner-era Court essentially created a right to look into the substance of state laws. He seems to say that the court should “abdicate[] its right to review them.” (p. 159). He appears to be arguing against judicial review itself throughout the book. This is a position so extreme that not even Holmes endorsed it. Even in his dissent, Holmes held that the Court should step in when the legislature acts irrationally. Kens would seem to think that even this goes too far. His argument is with Marbury, not with Lochner.
There are many, many other flaws in this lousy book—far too many for me to catalogue them all. I’m extremely disappointed. I had hoped for a fair examination of the case. Although I think Lochner was rightly decided, I acknowledge that there are serious, good arguments for the wrongness of Lochner. For instance, the “imbalance of bargaining position” argument—that bakers couldn’t really bargain freely with their bosses, so the state had to protect them. Right or wrong, it’s at least an argument; it’s the argument Pound put forward, and fortunately for the Progressives, they had keen legal minds like Pound’s, rather than blinded, utterly prejudiced ones like Kens’, at their lead. Kens gives this theory only a passing glance, in the midst of a book that otherwise portrays the case as a cartoonish conspiracy of evil social Darwinist capitalists exploiting the working class. It’s childish, extreme, and absurd. It is, simply, the worst legal book I’ve read since Tempting of America, and I urge students to read it as a fine example of the sort of reactionary, unreflective hostility that the case tends to evoke.
Update: The book is a shortened version of a longer study of Lochner, which I have not read. It is possible that these manifold shortcomings are not present in the longer study. Also, again, I am fond of Kens’ book about Stephen Field. It, too, claims that Field just invented the right to earn a living, and totally ignores the centuries of precedent on that issue that Field cited in his opinions. I called Kens on this in The Right to Earn A Living. Neverthless, it’s a pretty fair book with a lot of interesting biographical information about Field.
*-Update 2: David E. Bernstein, Lochner Era Revisionism, Revised: Lochner And The Origins of Fundamental Rights Constitutionalism, 92 Geo. L.J. 1 (2003), has an excellent passage regarding the social Darwinism charge:
Even though the link between Lochner and Social Darwinism was consistently asserted, a close reading of the footnotes in various sources suggests that its purported existence was based on a misreading of Justice Holmes’s dissent in Lochner and little else. Specifically, Justice Holmes famously wrote that “the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.” Spencer has gone down in history as a leading advocate of Social Darwinism. See generally John Gray, Liberalism 31 (1986) (contending that the traditional caricature of Spencer as a Social Darwinist is unfair). Because Holmes seemed to associate the majority’s Lochner opinion with Spencerian dogma, Holmes was thought by many to have pinpointed the “true” origins of the Court’s Lochnerian jurisprudence in Social Darwinism.To base a theory about an entire line of Supreme Court cases on one sentence in a dissenting opinion is hardly meticulous historical scholarship. Worse yet, a close reading of the context of the Social Statics remark reveals that Holmes did not accuse the Court’s majority of believing in Social Darwinism, or of otherwise being influenced by Spencer…. Most constitutional law professors are unfamiliar with the content of Social Statics, so they misinterpret the allusion to Spencer as an allusion to Social Darwinism, rather than an allusion to a prominent intellectual who advocated that the sic utero principle should be the basis of law. By stating that the Fourteenth Amendment did not enact Social Statics, Holmes was simply stating that the Fourteenth Amendment did not require the states to adopt a radical libertarian system of government.
Id. at 60 n. 21.
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