Download of the Week
The Download of the Week is The Art of Reading LOCHNER by Rebecca L. Brown. Here is the abstract:
- This essay argues that the Repudiation of Lochner v. New York is an event that has been cloaked in mystique and power, the very uncertainty of which has led to a kind of paralysis in the realization of constitutional aspiration. Yet because of its largely incorporeal nature, the meaning and implications of this important event have largely eluded focused critique and reevaluation. Those with a mind to question or rethink the Repudiation have focused their efforts primarily on revisionist accounts of Lochner itself. These are helpful in highlighting the possible meanings of the Repudiation, not descriptively, but normatively. They invite us to think about what we wish to consider ourselves to have repudiated with Lochner - a question that has, incredibly, not been adequately debated.
- Generally speaking the Repudiation is understood to have declared that what the Court in Lochner did was triply wrong: (A) it was incorrect as constitutional doctrine; (B) it was illegitimate as judicial behavior; and (C) it was fueled by inappropriate motivations. Although separable, the three prongs of this devil’s trident are not unrelated. The doctrinal error lay in recognizing a right to liberty of contract not specified in the text of the Constitution. The illegitimacy charge is the most complicated of the attacks on Lochner. Depending on the critic, the decision was illegitimate (not simply wrong) because the Court xceeded the proper scope of judicial authority by placing itself into the role of egislator or policy-maker,9 or because the content of the rights recognized under he Court’s due process formulations was too “meaningless and circular” to be pplied in a principled manner.10 Another version of the illegitimacy critique puts ctivism at the top of the list of sins, either alone or in combination with other eatures of Lochner, such as lack of firm textual basis or activism based on what ight be said to be legislative, rather than judicial, judgments. The critique from otivation attributes the errors of doctrine and legitimacy to the Court’s eactionary resistance to progressive “social legislation designed to relieve nequalities in the industrial marketplace.” 11 Perhaps the most damning of all, his charge brands the justices as unprincipled ideologues who turned their policy references into constitutional law.
- In a representative democracy, where much power is placed in the hands of lawmakers answerable to many different constituencies, generality of law (an idea sounding in equality) is an essential safeguard for liberty. This explains why Pierce v. Society of Sisters and Meyer v. Nebraska survived the Repudiation, despite their otherwise discredited recognition of substantive content in due process, their own facts exemplifying better than any hypothetical how threats to equality are threats to liberty, and vice versa. It explains why judicial review limited to representation einforcement alone, an effort to use courts in the protection of equality but not iberty, is doomed to under-enforce constitutional justice without some injection of ubstantive obligations in the duty to represent. Lochner has provided a focal oint for a discussion of liberty and equality.
Thus understood, the lliterative “Lochner,” long linked to legacies, lessons, laissez-faire, iberty, and labor law, has a new comrade, propitiously entitled Lawrence. lthough thirty years ago a leading scholar complained that “Lochner and Roe are twins,” the distinction of a strong family resemblance to Lochner belongs to Lawrence. This observation is cause, not for complaint, but for celebration that the wo strands of constitutional justice, liberty and equality, intertwined in Lochner and then rent asunder by decades of constitutional angst at the hands of the Repudiation, have been permitted to come together again in the law of the land.
