Vol. 1, No. 3 (May, 1991) Pp. 63-64
JUDICIAL POWER AND REFORM POLITICS: THE ANATOMY OF LOCHNER V. NEW
YORK by Paul Kens (University Press of Kansas, 1990).
Reviewed by Rogers M. Smith, Department of Political Science,
Yale University
For frequent teachers of constitutional law courses, many cases
come to be like close relatives, at times tiresomely familiar, at
others intriguing, indeed deeply affecting. I suspect most of us
therefore relish the genre in which this work falls, book-length
treatments of famous cases. At a minimum we pick up fascinating
stories about the human origins of landmark legal doctrines with
which we can entertain ourselves and our students. At best, as in
Anthony Lewis' eloquent GIDEON'S TRUMPET or Donald Fehrenbacher's
magisterial DRED SCOTT CASE, such books truly illuminate the
political struggles and processes, the intellectual traditions,
and the legal choices that make great cases significant.
Lochner v. New York is certainly a monumental enough decision to
merit the latter sort of treatment; but I do not mean to devalue
Paul Kens' brief and delightful book, JUDICIAL POWER AND REFORM
POLITICS, when I rank it much closer to the other end of the
spectrum. If you are looking for a synthesis of recent
scholarship on the legal and intellectual roots of the decision
that has become synonymous with judicial hostility to progressive
economic legislation, you still have to wait. Kens announces that
LOCHNER expressed -- guess what! -- an ideology of laissez faire
social Darwinism, and his citations are largely to the famed
older works, by Richard Hofstadter, Robert McCloskey, Clyde
Jacobs, Benjamin Twiss, Carl Swisher and others, that made this
account conventional if not mandatory by 1960. He makes only a
couple of fleeting references (and not to Eric Foner)
acknowledging the post-1970 explorations of "free labor
ideology" and "republicanism" that have enabled
political historians like Michael Les Benedict and legal
historians like William Forbath to provide richer accounts of the
economic ideas expressed in the post-war amendments, as well as
their late 19th and early 20th century judicial transformations.
He does not refer at all to Critical Legal Studies and the
contributions Morton Horwitz, Duncan Kennedy, and their
associates have made to characterizing liberal legal ideology
during those years. Kens is also not attuned to recent work by
intellectual historians on social Darwinism, such as Robert
Bannister's controversial attacks on the very Hofstadterian
orthodoxy Kens invokes, nor the broader work on Progressivism by
scholars such as Daniel Rodgers and James Kloppenberg, who have
provided richer portraits of the intellectual and political
milieu out of which reform emerged. In his final chapter he takes
quick, dismissive note of contemporary libertarian lawyers like
Bernard Siegan and Richard Epstein, who are trying to revive
Lochnerian outlooks, but he does not treat their historical
claims seriously (admittedly, they often don't either). In sum,
as intellectual and doctrinal history, this is, sadly, mostly
stale bread.
Kens nonetheless amply rewards the rather light demands he places
on the reader with a variety of tasty confections. For example,
his portrait of the baking industry for which the New York
legislature
Page 64 follows
regulated graphically reveals the spread of sleazy tenement
cellar operations that motivated the law. Kens also reports the
startling fact that the New York Bakeshop Act was passed and
later amended via unanimous votes in a hardly radical, rural
dominated state House and Senate; and he convincingly traces this
massive legislative support not to the influence of labor so much
as to temporarily ascendant middle class reformers aided by
high-profile journalistic muckraking. Best of all, he tells the
remarkable story of hustling Henry Weismann, who campaigned for
the Bakeshop Act as an ambitious young labor activist; was dumped
from his union post after allegedly dipping into the till,
switched sides, transforming himself into a spokesman for the
bakery employers' association; and then, by claiming to have read
law in his spare time, managed to wind up arguing before the
United States Supreme Court on behalf of Joseph Lochner's
challenge to the law Weismann had formerly advocated -- even
though Weismann was never admitted to any state bar in his life.
In the end, Weismann's remarkable antics probably have limited
import for how we should appraise LOCHNER, but they're sure to
prove handy if discussions need spicing up.
In his last full chapter, Kens takes on charges old and new that
the LOCHNER era was not such a much in preventing regulatory
legislation, and he makes a reasonable, informative case. His
epilogue strums the familiar chords of lament about undemocratic
judicial activism then and now, deploring the modern Court's
privacy jurisprudence along with conservative calls for renewed
laissez faire Lochnerism. The overall result is a book that is
useful and pleasurable to read and a great asset in teaching,
which will likely become a standard citation on the LOCHNER case.
It is not likely, however, to affect scholarly thinking about
that decision and all it stands for in any novel or distinctive
way.
Copyright 1991