Vol. 4, No. 1 (January, 1994)
THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA
POLICE POWER JURISPRUDENCE by Howard Gillman. Durham: Duke
University Press, 1993. 317 pp. Cloth $34.95.
Reviewed by David Schultz, Department of Political Science,
Trinity University.
CONSTITUTION BESIEGED is a fascinating and intelligent analysis
of Supreme Court jurisprudence from the Civil War until the
second New Deal cases of 1937. Gillman provides fresh appraisal
of what has become known as the Court's LOCHNER Era opinions. In
these decisions, following upon Justice Holmes' dissent in
LOCHNER V. NEW YORK, many believe that the Court was pronouncing
a series of cases "decided upon an economic theory which a
large part of the country does not entertain," i.e., laissez
faire economics. Yet instead of arguing that the Waite through
Hughes Courts were motivated by simple appeals to a specific free
market ideology, the book connects the logic of decisions like
LOCHNER to an overall fear of factions and special legislation
that would benefit a specific class or group. In short, the book
ties Supreme Court decisions during the LOCHNER Era to earlier
police power jurisprudence which emphasized political neutrality
and unbiased legislative decision making.
Gillman's book opens by reviewing the scholarship that has
examined and sought to explain LOCHNER Era cases. In part to set
the historical record straight and to show deficiencies of many
interpretations of the Court's decisions during this era, the
author reminds us of Charles Warren's research demonstrating that
557 of the 560 state laws challenged under the Fourteenth
Amendment's due process or equal protection clauses were upheld
(p. 4). This point alone should be enough to make it difficult to
sustain claims that the Court was engaged in significant judicial
activism to strike down laws that regulate the economy or public
welfare. However, the purpose of this introduction is to raise a
series of questions explaining the Court's generally sympathetic
deference to legislative decision making when it came to
regulatory legislation, while at the same time the Court was
particularly hostile laws setting minimum wages and maximum
hours. How did the Court distinguish between valid and invalid
economic legislation?
Gillman's thesis to clarify these distinctions is presented on
page 10 where he argues:
... the decisions and opinions that emerged from state and
federal courts during the LOCHNER era represented a serious,
principled effort to maintain one of the central distinctions in
nineteenth-century constitutional law -- the distinction between
valid economic regulation, on the one hand, and invalid
"class" legislation, on the other -- during a period of
unprecedented class conflict.
The nineteenth-century distinction Gillman is most concerned with
grew out the Jacksonian Era. It specified that the courts would
uphold legislation if it promoted a "true" public
purpose and not simply supported special, partial, or specific
class interests (p. 10). We can understand LOCHNER Era
jurisprudence, then, as an effort to adjudicate economic
legislation based on whether or not the Court felt that the laws
were the product of valid enactments for the public good or
simply the product of pressure politics meant to favor a
particular class or interest. Laws doing the latter, including
LOCHNER, were invalidated.
Chapters one through three provide solid review of constitutional
law and doctrine leading up to the LOCHNER decisions. Here
Gillman discusses FEDERALIST PAPERS numbers 10 and 51, showing
how Madison's discussion of faction and the need to establish
legislative neutrality became a standard constitutional principle
of the nineteenth-century. For judges in the Jacksonian period,
Madison and the Constitution were read as prohibiting special
legislation favoring a particular class or group because it was
presumed to be the result of factional politics. The Jacksonian
Era judicial response was to forge a notion of police power
adjudication which discriminated between
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legislation promoting the public welfare versus that which sought
to adjust market relations to favor a particular class (p. 145).
The Court opposed any legislation which supported a particular
class unless general benefits could also be obtained (p. 103).
This neutral vision of the state opposed to class legislation
rested upon an image of autonomous and self- sufficient people
operating freely in the marketplace. Moreover, this vision of
human nature, the neutral state, and the police power doctrines
that grew out of both remained viable until after the Civil War
when the emergence of industrial capitalism challenged the
continued viability of a vision of workers as autonomous and
self-sufficient (p. 159). At this point, changes in the market,
emergence of large trusts, and the increasing recognition that
some individuals were placed in a vulnerable economic position
forced a rethinking of legislative behavior as well as a crisis
in constitutional doctrine. According to Gillman:
...the crisis in American constitutionalism that arose around the
turn of the century becomes a story not of the sudden corruption
of the law and judicial function, but rather of how the
judiciary's struggle to maintain the coherence and integrity of a
constitutional jurisprudence ultimately was derailed by the
maturation of capitalist forms of production and the
unprecedented efforts of legislatures to extend special
protections to groups that considered themselves vulnerable to
increasingly coercive market mechanisms (pp. 9-10).
In short, the crisis of constitutional doctrine during the
LOCHNER Era and up to 1937 was the refusal of the Court to
accommodate its jurisprudence to the forces of industrialization
that rendered invalid the old assumptions about a neutral market
of autonomous individuals. How, when faced with legislative
responses to industrialization, was the Court to respond? For
Gillman, the Court tried unsuccessfully to continue to apply the
old neutral police power jurisprudence and it struck down certain
types of laws when it believed that they were the product of
factional politics supportive of a particular class or interest.
Thus, LOCHNER, as well as other types of economic regulation,
especially those mandating minimum wages or hours of employment
(p. 158) were singled out at especially troublesome for the
Court. It was over these types of cases that the real test of
public purpose was fought. Eventually, for Gillman, upholding
minimum wage laws in WEST COAST HOTEL V. PARRISH (1937), as well
as the dicta in footnote four of CAROLENE PRODUCTS V. UNITED
STATES (1937), were recognition of the dismantling of most of the
basic principles of LOCHNER Era jurisprudence and the nineteenth-
century legal ideology that supported it.
Gillman's conclusions address the relationships between legal
ideology and political power. He seeks to demonstrate how judges
can fashion an apparent neutral constitutional ideology out of
certain visions of the market and political power. Also, in
explicit reference to contemporary conservative control of the
judiciary, Gillman hopes that the unmasking of LOCHNER Era
assumptions should prevent these cases from currently being used
as a weapon to defeat economic regulation (p. 205). By showing
that LOCHNER does not stand for what conservatives think, he
hopes to remove any precedent some may have to use the judiciary
to support economic laissez-faire today.
There is much to praise in Gillman's book. Forcing political
scientists to rethink what the LOCHNER Era really represented is
the most important contribution of this book. Second, efforts to
connect Waite through Hughes Court police power decisions to
Madisonian conceptions of factions and republicanism are
provocative and suggestive of recent scholarship by William
Nelson and Cass Sunstein. Moreover, Gillman's efforts to stress
facial neutrality in constitutional theory, as well as the fear
of class politics in LOCHNER jurisprudence, might, as he hopes,
delegitimize one
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contemporary conservative trend in law. Yet it definitely adds
historical support and precedent to public choice theories of
judicial politics which fear the distortions of legislative
policy making.
Hence, the book's conclusions might damage claims of some recent
economic conservatives arguing for reinvigoration of economic due
process, but others like Justice Scalia might find support for
their attack on legislative history and politics by reading
Gillman. In effect, the motivations and rational for LOCHNER
jurisprudence might not support a conservative jurisprudence, but
the logic and holdings regarding class politics might do that
nonetheless.
Manipulating LOCHNER jurisprudence ideology gets to two important
criticisms or questions regarding CONSTITUTIONAL BESIEGED. First,
to what extent did the courts in the nineteenth-century use an
apparent neutral legal ideology to mask policy preferences,
versus to what extent was the ideology so intertwined with other
assumptions about power, politics, and the market that the
Justices did not realize the biases in their jurisprudence?
Gillman appears to argue the latter position, hence painting many
of the "conservatives" on the Court as facially
neutral. Yet Gillman's claim may be overstated. For example, the
LOCHNER judiciary was also the same one that was hostile to civil
rights legislation for emancipated slaves, voting rights for
women, child labor legislation, income tax, and federal Commerce
Clause regulation. All of these decisions suggest more of an
explicit political ideology at stake than Gillman seems to
suggest.
What we see in these cases and others are uses of the Commerce
Clause, Eminent Domain Clause, and Tenth Amendment to articulate
a particular vision of the American state and economy. In short,
a second criticism of the book is that police power jurisprudence
must be looked at in the context of decisions in several other
areas of law to see if they are part of a larger legal ideology
that Gillman asserts.
Perhaps Gillman's claims about police power jurisprudence and
fear of class based legislation might be able to explain these
decisions. But there is a possibility either that the ideology
Gillman describes was used to support property rights for reasons
more akin to traditional understandings LOCHNER assumptions than
he asserts, or a different ideology was invoked. Were Gillman to
examine the police power in the context of many other legal
principles, the claims he makes about neutrality, power, and
legal ideology might need to be altered or modified.
Despite these criticisms, CONSTITUTION BESIEGED is an excellent
example of recent trends to revise and appraise the meaning of
LOCHNER Era decisions. This book is must reading for all
interested in constitutional law and its relationship to politics
and the economy.
Copyright 1994