Vol. 11 No. 4 (April 2001) pp. 165-169.

THE LOCHNER COURT, MYTH AND REALITY: SUBSTANTIVE DUE PROCESS FROM THE 1890S TO THE 1930S by Michael J. Phillips. Westport, CT.: Praeger Publishers, 2001. 224 pp. Cloth $64.50. ISBN 0-275-96930-4.

Reviewed by Howard Gillman, Department of Political Science, University of Southern California.

There is still some more blood to be squeezed from the rock of Lochner revisionism, and Michael J. Phillips, a Professor Emeritus of Business Administration at Indiana University's Kelley School of Business, is after a bit of blood. He thinks that too many scholars, including many revisionists, are still propagating too much misinformation about the nature of Supreme Court decision-making during the Lochner era. For him, the upside of a little bloodletting is that we might come to appreciate the advantages of a revival of Lochner era substantive due process, which he correctly notes was less antidemocratic and ideologically excessive than the standard account suggested.

Phillips begins by offering a summary of the "conventional wisdom" about how an activist conservative Court used "liberty of contract" and related due process doctrines to strike down business and labor legislation around 200 times between the 1890s and the 1930s. In Chapter 2--which contains Phillips' most original and persuasive contribution to our knowledge of this period--he lays out his corrective overview of Lochner-era substantive due process. He tracks down the origins of "the myth of 200 invalidations" to Wright (1942) and Frankfurter (1938), and then clarifies the record by showing how few of these cases are consistent with the conventional wisdom. After he subtracts from this figure the equal protection cases (even those that seem to rest on the same sort of "anti- class legislation" sensibility found in many due process cases), procedural due process cases, due process cases that challenge state legislative control over out-of-state matters, incorporation cases (including takings cases), and cases involving the regulation of utilities and businesses "affected with a public interest" (which he acknowledges rest on due process principles but believes are better seen as takings-incorporation cases), he ends up identifying a "core" group of 56 substantive due process cases. He points out that in every subcategory of this group the Court upheld legislation more frequently than it struck it down. For example, while the Court struck down employment legislation 12 times it upheld similar laws in 43 other cases; regulations of business were struck down 12 times but upheld 59 times. In other words, "Lochner-era substantive due process attacks had their lowest kill ratios in precisely those areas where the doctrine is supposed to have done the most damage" (p. 57). Moreover, only 15 substantive due process invalidations "proceeded on the theory that the challenged law limited contractual liberty"; by contrast, in over 40 other cases the Court turned away liberty of contract challenges. "Thus, rather than being central to Lochner-era substantive due process, freedom of contract was but one application of a much more general

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doctrine" (p. 58).

Up to this point Phillips' account is consistent with much revisionist work on the Lochner era. This is also true of the early part of the discussion in the next chapter of "What Motivated the Old Court?", where he appropriately calls into question the simple-minded progressive era claim that the conservative justices viewed themselves simply as agents of the business class. He points out that this explanation cannot account for the overall pattern of decision-making, especially the frequency with which the justices upheld business regulation and even struck down laws that seem to reflect efforts to protect entrenched business interests.

Phillips then goes after some revisionist explanations. Since I am one of the principal targets (see Gillman 1993--not 1995, as Phillips sometimes reports), readers should be forewarned that my umpiring of Phillips' aim is not entirely disinterested. Moreover, it seems to me that his treatment is not entirely off the mark. In his discussion of "Gillman's version of the 'class legislation' argument" (p. 106) he acknowledges that some of the Court's decisions might be best understood as reflecting an effort to distinguish legitimate "public welfare" legislation and illegitimate "class" or special interest legislation. He also provides examples of previously unreviewed cases--involving entry barriers to the professions and land-use regulation--that further support that argument. Phillips is also correct to emphasize that not all Lochner-era decisions reflect an obvious concern about class legislation, and that this aspect of the Court's jurisprudence needs to be placed within a larger context of the justices' broader interest in protecting liberty and property against "arbitrary" or "unreasonable" legislation.

At other times, though, I found his review of the argument less persuasive. For example, he claims that the class politics argument cannot shed light on cases such as POWELL v. PENNSYLVANIA (1888) (involving a prohibition on the sale of oleomargarine) or HOLDEN v. HARDY (1898) (involving a maximum-hours law for miners that was upheld even though it was acknowledged that the purpose was to promote the health of miners rather than the public at large). Phillips asserts that these cases "should have gone the other way" (p. 108) if my thesis is correct, since he considers them incontrovertible examples of class politics. However, I would gently suggest that his judgment about this reflects a view of the Court's jurisprudence that is more formalistic than it should be. In my treatment I discussed the "class politics" aspects of POWELL, but I also attempted to explain why some of the justices might have been deferral to legislatures when certain kinds of public health rationales were asserted (as was also true of the SLAUGHTERHOUSE CASES 1873, which raised similar issues at the intersection of public health and special legislative favors). It would have been helpful if Phillips made some effort to reconcile his conclusions with this discussion.

Also, his brief treatment of HOLDEN implies that I overlook the fact that the Court in this case acknowledged the legitimacy of using the police powers to promote the health of a vulnerable class of workers rather than the health of the general public. No need for an extended tit-for-tat, but I would note that I spent five pages explaining how this case reflected a new view "that the police powers could be used not only to promote the well-being of the community but also the specific physical well-being of a class of workers who were not in the position to make contracts

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favorable to their health and safety" (Gillman 1993: 125). Again, some effort to engage the discussion would have helped move this conversation forward in a way that would have been more productive for the larger community of constitutional historians. I know that Phillips believes I provide only a "slim evidentiary base" (p. 112) for my claims about the justices' concerns about class politics, and for some reason he thinks my treatment of the jurisprudence covers only "the familiar cases that comprise the standard picture, plus some others that are reasonably well known" (p. 111). Honestly, I didn't think those state and federal cases, law review articles, and treatises were all that well known when I originally did the work--but that might just be me. Still, I am sure I could have benefited more from his critique if he spent more time explaining the weakness in the analysis rather than simply offering his own personal categorizations of these disputed cases.

After criticizing the efforts of others to provide some perspective on the pattern of the Court's decision-making Phillips' suggested alternative is something of a disappointment. In his view, the simple fact is that the justices used "a potpourri of different means" to see if "deprivations" of liberty and property were "substantively justified," and when "the challenged law failed whatever test the Court applied, it ceased to have force" (p. 115). He elaborates this alternative explanation in about 7 or 8 sentences-- and that's it. He follows this by acknowledging that "the previous argument seems embarrassingly short" but he claims that this is sufficient because it is consistent with (what he considers to be) self-evident due process concerns and with what the justices said in many of these cases. However, setting aside whether he provides even a slim evidentiary base for this view, it is not obvious that his position adds anything to our understanding of the jurisprudence or the decision-making. Everyone--traditionalists and revisionists alike--agrees that the justices had some concern about protecting liberty and property, as well as some concern about accommodating the public interest in regulation. The question is whether there are more revealing things to be said about how these competing considerations were reconciled. Phillips claims he is offering a new thesis, but it might be better understood as a reiteration of the starting point for all prior discussions of the Lochner Court.

Phillips has two more targets. Chapter 4 critiques the claim that the old Court was insensitive to "unequal bargaining power" among competing classes during the turn of that century. He is correct that the argument mostly "shows that workers were dependent on industrial employment in general" rather than on "particular employers" (p. 133) and that too much emphasis on this argument might leave the misleading impression that workers had no chance to protect their own interests through market competition. However, in most accounts of the erosion of Lochner-era jurisprudence, the argument about dependency is meant to focus attention on how industrial employment became a new structural feature of class relations in the United States (leading to the familiar story of late-nineteenth-century labor violence and repression) and thus represented the material basis upon which progressives forged a new conception of state-society relations (as well as a new appreciation of the virtues of labor combinations). Still, even if he is willing to grant that unequal bargaining power in this general sense is an important part of the story of the demise of this jurisprudence, Phillips is right that some standard accounts of the Lochner era are too casual about

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assuming that unequal bargaining power was the real reason behind all so- called paternalistic labor legislation. In fact, there are those who think that the maximum-hour law for bakers at issue in LOCHNER v. NEW YORK (1905) is better understood as reflecting an effort to protect larger bakeries by imposing burdensome regulations on small proprietors. He suggests (pp. 111, 145) that this reading of Lochner never occurred to me, but this jab seems to reflect an ungenerous reading of those with whom he disagrees (see Gillman 1993: 128, 251 n53, citing Tarrow 1964). Phillips concludes that the historical record is unclear about how best to interpret the legislature's motivation in this case, except to say that it is likely that the baking industry in New York consisted of many smaller proprietors and this may undermine the claim that bakery workers were in an unequal bargaining position because they were up against large corporations.

After appropriately criticizing in Chapter 5 the claims made by some contemporary conservatives that substantive due process was unprecedented before the Lochner Court, he ends by suggesting that "modern courts should imitate the old Court by [reviewing legislation impairing property rights and occupational liberty and] applying standards of only moderate stringency" (p. 193). This professor of business administration wants our judges to be more bold about striking down regulatory "irrationality" and "regulations that arguably assist mistreated or economically dependent groups, but do so by making isolated, politically vulnerable economic interests bear the costs" (p. 194). In other words, he wants to resurrect some version of the constitutional prohibition against "class politics." In fact, since "class legislation of this kind is even more pervasive today, ... maybe it should be the main target of revived economic substantive due process" (p. 195). He acknowledges that this "pervasiveness also argues against the courts' undertaking this task," since "if they went after modern class legislation in a serious way, they would scarcely have time for anything else." Still, he believes that if we appreciate how relatively mild and accommodating the Lochner-era Court was when it was applying the test we may be willing to set aside our unfounded fear of Lochner-era excesses.

He ends his book by acknowledging that it is unlikely that judges will once again take up this role. Why? Not just because we are still too enamored with the misleading common wisdom of the period. His explanation is more ideological. "Liberals would have to stop casting a blind eye on government's economic irrationality, partiality, and predatoriness. This, in turn, might make them doubt the state's ability to serve as a vehicle for enlightened reform. Such doubts, furthermore, might make liberals question their own importance in the scheme of things.... Worst of all, they would have to admit that the ignorant reactionaries on the old Court knew things about business and government that they and their Progressive forebears were unwilling or unable to grasp" (p. 196).

Setting aside the question of whether we stupid or stubborn "liberals" are in a position to decide for our increasingly conservative and Republican federal judiciary whether this jurisprudence will once again arise from the ashes of constitutional history, it might be worth noting that most of us are much less worried about the overblown excesses of long-dead reactionaries then the palpable excesses of the alive-and-kicking reactionaries on the existing Supreme Court. Phillips may consider acceptance of this jurisprudence as

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simply a matter of having a little more faith in market freedom and in the fair-minded capacity of judges to ferret out unreasonable policy-making. However, views about whether regulation should be characterized as irrational, partial, or predatory are inevitably political, and even if Phillips can calm our nerves by finding some examples where liberals and conservatives may agree that a law makes no good sense, there is no requirement that overlapping consensus within the Court will be a precondition for striking down a law.

I suppose that there is a chance that judges who are bold enough to pick a president, and who have aggressively used federalism and equal protection jurisprudence in ways that reflect specifically conservative values, may find a rehabilitated prohibition against class politics an extremely tempting (and far-reaching) weapon against the regulatory-welfare state that was allowed to emerge after the collapse of Lochner-era jurisprudence. In the unlikely event that this happens, I would encourage Michael Phillips to claim whatever credit he would like for the results.

REFERENCES:

Frankfurter, Felix. 1938. MR. JUSTICE HOLMES AND THE SUPREME COURT. Cambridge, MA: Harvard University Press.

Gillman, Howard. 1993. THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE. Durham: Duke University Press.

Tarrow, Sidney. 1964. "Lochner v. New York: A Political Analysis." LABOR HISTORY 5:277-312.

Wright, Benjamin F. 1942. THE GROWTH OF AMERICAN CONSTITUTIONAL LAW. Chicago: University of Chicago Press.

CASE REFERENCES:

HOLDEN v. HARDY, 169 U.S. 366 (1898).

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

POWELL v. PENNSYLVANIA, 127 U.S. 678 (1888).

SLAUGHTERHOUSE CASES, 83 U.S. 36 (1873).