Vanderbilt Law Review

First Page



In many constitutional histories the presentation of economic issues between 1880 and 1937 resembles a Victorian melodrama. A dastardly Supreme Court is pictured as frustrating noble reformers who sought to impose beneficent regulations on giant business enterprises.' The centerpiece in this tale of wickedness is Lochner v. New York.' Few Supreme Court decisions have been vilified more than Lochner. For years liberal commentators ritualistically denounced the Court's decision. The laissez-faire assumptions behind Lochner naturally were an anathema to scholars and judges favoring government intervention in the economy and redistribution of wealth. Worse yet, this example of judicial activism reflected an exaggerated concern for the rights of property owners. Only the arrival of the New Deal broke the monstrous Lochner spell, relegating property rights to a secondary constitutional status and saving the public from a fate worse than death. To liberal commentators Lochner became a term of reproach, an emotionally charged symbol of everything they disliked about a property-conscious Supreme Court.' Even today the slightest indication of judicial interest in reviewing economic legislation produces dire warnings of a return to the Lochner era.

Perhaps more surprising, some prominent conservatives also have criticized Lochner as inappropriate judicial activism. Anxious to curtail the scope of judicial authority over wide areas of American life, these apostles of judicial self-restraint view Lochner as an invitation for courts to govern matters best left to the political process. Chief Justice William H. Rehnquist, for instance, has characterized Lochner as "one of the most ill-starred decisions that [the Supreme Court] ever rendered."' Similarly, Robert H. Bork sees Lochner "as the symbol, indeed the quintessence, of judicial usurpation of power."' According to Bork, Lochner "gave judges free rein to decide what were and were not proper legislative purposes."' This school of thought favors judicial deference to decisions by the political majority. Consequently, little room exists for judicial review of legislation.

Despite this legacy of controversy, Lochner has not been banished from our constitutional tradition. Indeed, in recent years a group of revisionist scholars has endeavored to rehabilitate Lochner and the underlying doctrine of laissez-faire constitutionalism. Bernard Siegan, for example, has argued that the framers of the Constitution expected the federal courts to safeguard economic liberty. He defends Lochner on the ground that the imposition of maximum-working-hours laws on bakeries would drive small immigrant entrepreneurs out of business and diminish competition. Likewise, Richard A. Epstein stresses the libertarian basis of Lochner. "Decisions such as Lochner v. New York were correct," he has observed, "because New York's maximum-hour legislation was vintage special-interest legislation."" Epstein even has lamented that Lochner was not applied consistently and did not establish a sufficient limit on governmental power to intervene in the economy.

Virtually all observers, however, agree that Lochner is one of the most important decisions ever rendered by the Supreme Court. Why has Lochner occupied such a central place in American constitutional history? What accounts for the continued fascination with this old case? At first blush the issue raised in Lochner-the validity of a statute limiting work in the New York baking industry to ten hours a day and sixty hours a week-hardly would appear to warrant such sustained attention. On a deeper level, however, Lochner poses certain fundamental questions in sharp relief. To what extent can the government constitutionally redress hardships created by the operation of the free market economy? What protection should property rights receive under the Constitution? What is the appropriate role of federal judicial review in American life? The Lochner decision speaks forcefully to these inquiries, but observers have drawn widely diverse conclusions from the case. In short, Lochner can serve more than one constitutional theory. Considering the vitality of the Lochner debate, a careful scholarly account of this case has been needed for some time. With the welcome publication of Judicial Power and Reform Politics, Paul Kens provides a balanced and judicious treatment of Lochner. In the process he effectively destroys some myths associated with this case and poses some challenging questions.