George Will’s review. I hadn’t previously realized just how much of a totalitarian Oliver Wendell Holmes was. He seems as bad as Woodrow Wilson.
29 thoughts on “Rehabilitating Lochner”
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George Will’s review. I hadn’t previously realized just how much of a totalitarian Oliver Wendell Holmes was. He seems as bad as Woodrow Wilson.
Comments are closed.
I used to favor Lochner and its progeny because I favor liberty of contract, but I’ve been reading Robert Bork’s The Tempting of America, and he makes the point that Lochner, like Dred Scott (slaves are property) and Roe v Wade (abortion, of course), is judge-made law and not based on the Constitution.
Bork argues that judges should let legislatures make up the law. Judges should only interpret it. Even when we like the results of judge-made law, we shouldn’t sanction it, because other judges, who are not elected, will make up something else when the intellectual fashions change–without being subjected to being voted out of office. We might not like that as much.
I wish I’d had Bork’s book when I was in law school. It helps explain why Constitutional law is so confusing: these guys don’t always follow the rules. Or even often.
Rules are for non-judges.
I’ve been reading Robert Bork’s The Tempting of America, and he makes the point that Lochner is judge-made law and not based on the Constitution.
So, Bork thinks the enumeration in the Constitution of certain rights should be construed to deny or disparage others retained by the people?
Once again, I wish these guys would read the Constitution instead of “interpreting” it.
I don’t think he was saying that. Instead, Bork critiqued these decisions on the grounds that they used the wrong part of the Constitution (e.g., the due process clause to inject substantive content) so that the justices could legislate their own values. Bork makes passing reference, and sometimes good arguments, to better reasoning that could have been made, and that would have been Constitutionally based. What he objects to is the tendency that the Supreme Court has displayed throughout our history to make arguments based on history, things that are so “fundamental” that they cannot be ignored, penumbras and other mythical creatures rather than on what the Constitution actually says.
The Tenth Amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to to the States, are reserved to the States respectively, or to the people.” I wouldn’t go so far as to assume that “powers” are the same things as rights. Without looking anything up, I’d say they, at the very least, include legislative powers.
In any event, the reasoning in Lochner was based on due process, which is about, well, process and procedures, according to Bork, so Lochner’s logic was flawed.
But wait… scratch that about the Tenth Amendment. You meant the Ninth.
As for what Bork thinks about that, I haven’t reached Chapter 8 yet. More later.
But Bork himself does not “follow the rules.” To wit:
As Bork sees it, the “first principle” of the American system isn’t the protection of individual rights. “In wide areas of life,” he writes in The Tempting of America, “majorities are entitled to rule, if they wish, simply because they are majorities.” That means that in the vast majority of cases, the courts should give lawmakers the benefit of the doubt and presume the constitutionality of the disputed law,
http://reason.org/news/show/conservatives-versus-libertarians
This is exactly the sort of tyranny of the majority the Founding Fathers worried about, which the Constitution (and specifically the Bill of Rights) was intended to prevent. The framers of the Constitution specifically rejected pure majority rule in favor of a Constitutional Republic with strict limits on government power, not because they thought the Republican form of government was an end in itself but because they thought it was the best guarantee of liberty.
The idea that majority rule is the “first principle” of government came about long after the Constitution was written. By embracing it, Bork is violating the principles of original intent he claims to represent. In the words of Richard Epstein, Bork’s interpretation “totally subverts the original constitutional arrangement of limited government.”
And of course, Bork’s concern about judges and changing intellectual fashions applies to legislative majorities also. They are every bit as subject to fads and fashions as judges are, and voting legislators out of office is not as easy as Bork would seem to believe.
That having been said, I believe it should be possible to vote judges out of office. That would at least provide some check, however imperfect, on judicial power. Unfortunately, even in jurisdictions where judges are elected, so-called “judicial ethics” which prohibit discussing cases and issues make the election process a sham. The public is reduced to voting for the candidate with the best-looking wife and kids.
I’ve got Bork’s book, too. Will have to dust it off and read Chapter 8.
Bork may be an example of the principle that a constitutional debate doesn’t necessarily have only two sides. For instance, if there were two major positions regarding Loving vs. Virginia (the miscegenation case), neither of them were mine. I simply trot out the Equal Protection clause – the Racial Integrity Act of 1924 bars some mixed-ethnicity marriages but not others. “Caucasians” could marry only within race, non-Caucasians could marry any non-Caucasian race. (One could question the dubiousness of classifying Caucasian as a single race…)
Regarding Lochner…could a 14th Amendment angle be drawn there, in that the law in question was intended to grant artificial market advantages for large-scale bakeries over small ones? (Yikes, did I just spell out the means to declare Sarbanes-Oxley unconstitutional?) Could one argue that the right to contract draws from the First Amendment right to peaceable assembly?
Here’s one disapproving opinion of Lochner, one that illustrates the class-warfare mindset that infects much of the Left (emphasis added):
“Barbara J. Flagg has identified two broad strains of criticism: the Court’s failure to engage in meaningful analysis of existing unequal distributions of wealth and power, and its tendency to substitute its own judgement for that of the legislatures.”
(Flagg, Barbara J. Was Blind, But Now I See: White Race Consciousness and the Law. NYU Press, 1997. p. 75.)
http://en.wikipedia.org/wiki/Lochner_era
“I hadn’t previously realized just how much of a totalitarian Oliver Wendell Holmes was.”
You mean the proto-Nazi Holmes who wrote “three generations of imbeciles is enough.” If you have heard of Buck v Bell, check it out at Wikipedia.
Ruling that “the principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes,” Justice Oliver Wendell Holmes Jr. authorized the sterilization of Carrie Buck. Some thirty states then enforced sterilization laws. At least 60,000 Americans were sterilized between 1927 and the 1970s. In 1933, Nazi Germany modeled its eugenics laws after Virginia’s.
http://www.encyclopediavirginia.org/Buck_v_Bell_1927
Where was Margaret Sanger when governments were going after women’s fallopian tubes? Oh, wait…
I can tell you what Bork thinks about the Ninth. He called it an “inkblot.” His point was that it was vague enough to be subject to judicial abuse, but he reached that conclusion because the Ninth had been used to do things he didn’t like–like the creation of certain positive rights, and, of course, as part of the constitutional justification for privacy and abortion laws.
The Ninth Amendment is important, despite being largely ignored in our jurisprudence, because it makes clear that we have a whole lot of rights not expressly protected in the Constitution. The Bill of Rights is not, in other words, a grant or list of rights. It’s just a list of particular, added protections against government incursion. In theory, this should’ve worked, because the government was only allowed to exercise certain limited, enumerated powers. Unfortunately, we all know how that worked out in the long run.
Bork lost me with his inkspots, but Edwards comments seal the deal.
I believe it should be possible to vote judges out of office
I tend to disagree. They can be impeached if needed. Voting subjects them to political winds. The important thing is selection and this is where our representatives have severely failed us. The last two should never have become part of the court, even the lower court. Judges don’t hold a job, they hold the principles of our country… or don’t. Those principles have been under such attack that Americans that love this country aren’t quite sure what those principles are.
They start with individual liberty and god given rather than man defined rights. You don’t need to believe in god to believe in inalienable rights.
FDR introduced a ton of ‘rights’ that violate those principles and rights. The right to a home for example violates the right of property. To give someone a home means taking property from many others. This is not a problem for those that don’t hold our founders principles. I wish they would just STFU.
His point was that [the 9th amendment] was vague enough to be subject to judicial abuse, but he reached that conclusion because the Ninth had been used to do things he didn’t like–like the creation of certain positive rights, and, of course, as part of the constitutional justification for privacy and abortion laws.
So why was Bork wrong?
Roe v. Wade is another case where I take a unique tack. Marbury v. Madison does not authorize the Supreme Court to engage in scientific review, and Roe for all practical purposes ruled on the beginning of life.
Re Griswold v. Connecticut – why doesn’t the right to privacy bar the government from prohibiting incandescent light bulbs?
The role of judges is to strike down laws rather than make them. In that respect he’s correct.
Why was Bork wrong?
Because we don’t need the legislature to define our rights. They are innate within us. The legislature should be constrained by necessary and proper. They aren’t.
So judges instead of legislatures should define our rights?
No. Neither defines our rights. They are supposed to be defending our rights. No law that isn’t defending our rights should even exist. This means caution by the legislature and scrutiny by the judicial.
There are only two fundamental rights from which all others are derived: Liberty and property. The governments ONLY job is to keep us each secure in these individual rights. This is American exceptionalism. Before America this idea didn’t exist anywhere.
The ninth amendment is the only one required (and many others have cost us rights.) We don’t need enumerated rights if the government were faithful to this principle.
There wouldn’t be any question of our right to speech or thought or belief.
Nobody would be debating if the right to bear arms were an individual or collective right. As long as a person doesn’t use weapons to deprive any other individual of their rights, the government should have nothing to say.
The government recently stole millions of dollars from people in silver and gold coins that were not misrepresented as anything other than what they were. Not hardly a peep of protest from anybody. This is absolutely wrong, but today people don’t understand their inalienable rights or are unwilling to defend them from a tyrannical government. Make no mistake, we are far down the path of tyranny. We had a revolution over 200 years ago for far less. The same may not be practical today, but that doesn’t erase the tyranny.
Any law that isn’t both necessary to protect individual rights or properly balances the rights of individuals is unconstitutional.
Equal protection means that state laws also needed to follow the necessary and proper rule.
Marbury v. Madison does not authorize the Supreme Court to engage in scientific review
Marbury v. Madison was a decision of the Supreme Court. Nothing more, nothing less.
If you believe the Supreme Court’s authority derives from the decisions of the Supreme Court, rather than the Constitution, then the Court becomes a law unto itself and there is no limit to its power.
If you believe…
That seems obvious and I agree. Reading the history of Marbury v. Madison was fascinating.
I would think separation of powers to be a given in this country. That it isn’t I find amazing.
Civil law and common law seem to be irreconcilable.
If you believe the Supreme Court’s authority derives from the decisions of the Supreme Court, rather than the Constitution, then the Court becomes a law unto itself and there is no limit to its power.
SCOTUS rules against the Constitution now and then and is subject to no checks and balances, so it is a law unto itself. Nevertheless, bad verbage on my part – I should have said that Marbury doesn’t claim the constitutionality of judicial scientific review.
Ken, your remarks about Bork are incoherent. You make no attempt to counter his claim that the Ninth Amendment is an “ink blot” – that it is too vague to be interpreted objectively with regard to unenumerated rights.
You also mentioned Bork’s opposition to “certain positive rights” without citing any examples (other than Roe).
I never mentioned Roe. I don’t generally differentiate between positive and negative rights although I understand the difference.
I don’t believe you have to assert a right to possess it. I mentioned they were innate. You still may have to defend them.
I have no idea what Borks position is in a great many cases. I do know he asserted something to the effect that the 9th amendment would not change in meaning if it were obscured by an ink blot (I don’t remember the exact words.)
I think the 9th amendment is pretty clear. That lawmakers choose to ignore it doesn’t make it any less clear.
This is what makes America exceptional (even if wrong in the details) – America is exceptional because of the concept of consent of the governed. Even though it is not possible to actually have consent of the governed it’s the thought that counts. We are not servants to a government, they serve us.
The 9th amendment makes that very clear. Only an intellectual could get it wrong.
Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Grammatically, this statement means: just because certain rights are in writing does not mean that other rights do not exist- enumerated rights are not an exhaustive list of rights.
The mischief comes when courts try to determine what unenumerated rights are retained by the people. Bork says they can’t – because judges are empowered to rule on the written law, not the unwritten. It gets even worse if gthe amendment is twisted to legitimize an individual “right” to claim somebody else’s liberty or property – such as “rights” to health care or shelter or food. We have a right to private trade, through which we may seek those things; the Declaration enumerates the right to foreign trade, which cannot exist if there is a right to domestic trade.
I agree with Bork that the court cannot determine an unenumerated right. But I disagree on a fine point: the ink blot is not the amendment itself but its misinterpretation. The context suggests that the amendment serves as a failsafe against efforts to use judicial hocus-pocus to derail expansions of the enumeration of rights. It also bars one level of government from dishonoring another level’s expansions of enumerated rights.
Bork says they can’t
Bork is wrong. It is trivial to list rights that are not enumerated. You simply list an activity that doesn’t violate the property or liberty of someone else. What is not trivial is to list all of them because they are without limit.
Not only can they, it’s the very definition of their job. To determine if one persons rights are in conflict with another person. The problem is judges that don’t really respect individual rights so they choose one over another. They are supposed to be selected for being mature enough not to do that. Any whiff of that should disqualify them. The last two stink of it.
twisted to legitimize an individual “right” to claim somebody else’s liberty or property
That is exactly what would be unconstitutional.
A single persons rights to liberty and property are equal to all other persons liberty and property. This is why eminent domain is a violation of this principle. The good of the many does not over rule a single persons rights.
This is the very definition of tyranny.
Only in rare cases would this even be difficult to decide if they just stick to the presumption of liberty.
Grammatically, this statement means
Actually it implies even more than it says. Individual rights are unlimited. The government is specifically limited by enumerated powers. This turns history on it’s head, but history is very good at reasserting itself.
Individual rights are unlimited
I wouldn’t use the term “unlimited” – the list of potential human actions is finite, after all.
Instead of speaking of rights quantitatively, I think it’s more useful to define the term.
I am leery of the courts ruling that such-and-such unenumerated right is a genuine legal right – precisely because of the lack of consensus over the definition of liberty. It is dangerous for judges to get used to enforcing stuff that ain’t in writing.
Focus on the stuff in writing regarding limits on powers – now that’s what judges should be doing more often. Perhaps someone should offer up an amendment placing restrictions on the constitutional definition of “Necessary and Proper.”
Humans are finite. That doesn’t apply to their possible actions. No matter how many actions you list, another could be added. That’s the definition of infinite.
It’s not that complicated. Liberty means my actions that don’t restrict your actions. Property means I own it and you can’t take it away from me without my consent.
Enforcing things that aren’t in writing is a judges job. People often don’t write a contract before abusing another persons rights.
the lack of consensus over the definition of liberty
Liberty is liberty. It’s not a tough concept. It’s not the definition of liberty that is a question. It’s how to balance the liberty of one that conflicts with another. That should usually be very easy as well since taking liberty is often involved.
more useful to define the term
That’s the enumerate argument. It’s wrong.