Civil War makes Lochner look less crazy

• The crazy-Lochner thesis is a strange way of reading law:

• 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.

• 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.

• The number of contemporary commentators who approved Lochner was at least equal to number who opposed it.

• 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.

• Peckham had a good textual and historical basis for his Lochner holding:

• The protection of “liberty” in the 14^th Amendment invites him to inquire into what this liberty is.

• He wrote that “the right to purchase and sell labor is part of the liberty protected by this amendment.”

• Peckham did 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.”

• Peckham was 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)

• 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 Lochner holding

• But the Lockean vision that animates Peckham points 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.

• Liberalism and state police power:

• Liberal political philosophy that animated the antislavery movement, and so in turn the 14^th Amendment, held that there were clearly defined spheres of governmental and private power.

• 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.

• However, as Peckham noted, “there is a limit to the valid exercise of the police power by NY. Otherwise the 14^th Amendment would have no efficacy and the legislatures of the States would have unbounded power.”

• Boundaries of state police power

• Lochner established the boundaries of state police power based on its conception of the purpose of police power.

• Lochner used 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.

• 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.

• 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.

• 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.

• If there is truth in the modern critique of 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.