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Civil War makes Lochnerlook less crazyt The crazy-Lochnerthesis is a strange way of reading law: n A sizable number of the best American lawyers, and for 30 years a majority of SCt, thought that freedom of contract was protected by USC. n It would be odd to say that generation after generation could be fundamentally misguided about the most fundamental elements of the law that it is their professional responsibility to interpret. n The number of contemporary commentators who approved Lochnerwas at least equal to number who opposed it. n Generally, whenever you read any argument, it’s a good idea to begin with charitable assumption that it makes sense, and that you just haven’t yet seen the sense that it makes. t Peckhamhad a good textual and historical basis for his Lochnerholding: n The protection of “liberty” in the 14th Amendmentinvites him to inquire into what this liberty is. n He wrote that “the right to purchase and sell labor is part of the liberty protected by this amendment.” n Peckhamdid not keep USC in tune with the times. Justice Sutherland, who was wholly in sympathy with Lochner, wrote in dissent in West Coast Hotel v. Parrish(not in casebook) that “the meaning of USC does not change with the ebb and flow of economic events.” n Peckhamwas sincere, at least in his intentions, when he said that “This is not a question of substituting the judgment of the court for that of the legislature.” (818) n Peckham’s modality is textual to the extent that the word “liberty” is there for construction, and historical to the extent that he is being true to the framers’ intent. Structural and ethical basis for Lochnerholding t But the Lockean vision that animates Peckhampoints him toward structural and ethical modalities, so that reliance on moral and political philosophy (and more accurately, his particular political theory) immediately appears most appropriate. This approach in turn led him to balancing, and it is because he balances that he is charged by later generations with importing his own values into USC. t Liberalismand state police power: n Liberal political philosophy that animated the antislavery movement, and so in turn the 14th Amendment, held that there were clearly defined spheres of governmental and private power. n Liberty could be limited by the police powers, the powers enjoyed by governments of general jurisdiction (unlike the government created by USC, whose powers are limited and enumerated) to protect public health, safety, and morals. n However, as Peckhamnoted, “there is a limit to the valid exercise of the police power by NY. Otherwise the 14th Amendmentwould have no efficacy and the legislatures of the States would have unbounded power.” t Boundaries of state police power n Lochnerestablished the boundaries of state police power based on its conception of the purpose of police power. n Lochnerused familiar formulation, that police powers “relate to the safety, health, morals, and general welfare of the public.” This seemed broad enough to encompass concern for health of bakers, which might be harmed by overwork. n But SCt interpreted policy power to concern primarily the protection of private rights – again, understood as property rights and freedom of contract. Any statute whose purpose was to redistribute resources and thus benefit some persons at the expense of others would extend beyond the boundaries of legislative authority. n SCt could see no reason why bakers’ freedom of contract should be interfered with. “There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades . . .” (818) SCt was not persuaded that this was a health regulation. n In deciding whether the state had met its burden of showing that the police power can be exercised in this case, SCt necessarily relied on its own notions of reasonableness: it balanced the liberty sacrificed, which was given very great weight, against the public interest that was served. n If there is truth in the modern critiqueof Lochner, it is this: the balancing technique cannot be carried out without the judge’s own views influencing the weight that is given to each of the factors. Dissent - Harlan t Argued there was a reasonable basis for the legislation, but the court is having none of it. t SCt had recently sustained an 8-hour law for miners (Holden v. Hardy), but courts had traditionally regarded mining as ultrahazardous. Miners were an exception to the rule that adults were presumed competent to take care of themselves in the marketplace. t Women were also an exception. In Adkins v. Children’s Hospital, the majority (and not Holmes) was the advocate of women’s equality. t Harlanactually had a lot in common with Lochnermajority. n He agreed that liberty of contractis protected by USC, and that the issue is whether the state had adequately justified its limitation of that liberty. n Harlansimply thought that the state had met its burden of proving the necessity of the limitation. Dissent - Holmes t Took a radically different approach. t Claimed that “a constitution is not intended to embody a particular economic theory.” t It was not clear from Holmes’ dissent whether any infringement of economic liberty, per se, would violate USC in his view. t Courts should simply defer to the legislature’s expertise, unless (but this is a big unless) “it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” It is not clear whether Holmeswas interested in doing anything with this escape hatch. Date: 2015-01-02; view: 607
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