[How Progressives Rewrote the Constitution. By Richard A. Epstein. Cato Institute, 2006. xiii + 156 pages.]

“Lochner-era jurisprudence” elicits a mindless sneer from  most contemporary legal theorists. In Lochner v. New York (1905), the Supreme Court held unconstitutional a New York state law that limited bakers to a ten-hour workday, on the grounds that the law interfered with the bakers’ freedom of contract. In doing so, the law violated the clause of the Fourteenth Amendment that forbids any state from depriving anyone of life, liberty, or property, without due process of law. Critics of the decision allege that the Court’s application of “substantive due process” in this case and others like it was a legal outrage. The Court wrongly imposed its own view of economic matters, usurping popular sovereignty. As Oliver Wendell Holmes famously said in dissent, “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Further, critics of Lochner allege, the pre-New Deal Court acted in other highhanded ways to thwart the people’s will.

Richard Epstein has in How Progressives Rewrote the Constitution defied the current scholarly consensus. Contempt for Lochner-era jurisprudence stems from a carefully orchestrated campaign waged by the Progressives. This group of self-proclaimed scientific reformers contended that changed economic conditions made “freedom of contract” and other shibboleths of the laissez-faire era outdated. “The Progressives were the self-conscious social and legal reformers who occupied center stage in the period roughly from the onset of the 20th century through the election of Franklin Delano Roosevelt as president in 1932. . . . Progressives believed in the power of science and economics, employed by government, to lift up the economic and social position of the general population” (pp. 2–3).

But a problem confronted these scientific reformers. The Constitution, if interpreted strictly, seemed to bar their plans for a regulated, scientifically controlled economy. Two provisions of the Constitution, in particular, posed difficulties. The commerce clause did not give Congress any power to regulate interstate manufacturing; and as mentioned before, the due process clause of the 14th Amendment interfered with the Progressives’ plans for the states.

The Progressive legal reformers readily swept aside the “parchment barriers” imposed by the Constitution. The document, they said, must not be interpreted in a static, formal way. Rather than attempt to derive formal rules from the text, the Court should take account of sociological and economic studies of current conditions. Louis Brandeis, both as an attorney and as an Associate Justice of the Court, was the foremost exponent of the new approach. He maintained, e.g., that because many firms were large and “monopolistic,” old-style insistence on freedom of contract was unfair to workers.

Holmes brought to the fore another way of circumventing the Constitution. The Supreme Court should in almost all circumstances defer to the judgment of the legislature: the Court could set aside only legislation that lacked any rational basis.

Epstein will have none of this. Either the Constitution grants certain rights or it does not. If it does, the judiciary must interpret the law so that these rights are respected. If it fails to do so, then it abdicates its responsibility.

But here a question arises. Did the “Old Court” that Epstein defends against the Progressives in fact interpret the Constitution correctly? On the commerce clause, it unquestionably did. The commerce clause grants Congress no general control over the economy, the New Deal Court and its successors to the contrary notwithstanding.

On “substantive due process” the issue is less evident than Epstein thinks. He fails to confront the argument advanced by Raoul Berger in Government By Judiciary (Harvard University Press, 1977) that the 14th Amendment, as originally intended, did not impose the strict limits on state action that the Old Court read into it. In addition, he ought to have addressed whether the Amendment was legally ratified. Given his appropriate condemnation of Holmes’s refusal to challenge Congress, it would hardly be satisfactory for him to respond that the legal validity of the Amendment is a “political question” to be settled exclusively by Congress.

But on the ground he has chosen, Epstein is unquestionably right. The Progressives argued that new economic realities demanded state action. But their contention that labor was powerless before monopolistic businesses flies in the face of the facts: “Brandeis offered no empirical evidence about the deleterious effects of the inequality of bargaining power on the operation of the economic system, which includes an indictment of the Old Court attitude toward child labor, women in the workforce, and overall wage levels. . . . It takes little ingenuity to see that child labor was on the wane by 1918, the time that the Supreme Court explicitly held that Congress could not regulate the matter. During this same period, it is worth noting that for ‘lower skilled labor’ the hour figures showed a similar reduction” (pp. 5–6).

Progressives wanted to eviscerate the Constitution in the name of scientific reform; but their reforms were unneeded and harmful. After criticizing the attempt by some Progressives to claim that the Old Court had distorted an originally expansive reading of the Commerce Clause, Epstein appropriately remarks: “The textual and historical arguments, then, lay bare the claim that the Progressive reading of the Commerce Clause only returned us to the original Eden. So we are back to the question: why move heaven and Earth to invent an imaginary Eden so that Congress could insure the higher prices and restricted output characteristic of cartels?” (p. 72).

If freedom of contract must, in the Progressive view, be abandoned so that pseudo-scientific regulation of the economy may proceed unhindered, what about civil liberties? They too must bow before the superior wisdom of the legislature. Despite his famous dissent in Abrams v. United States (1919), in which he defended free speech, Holmes’s notion of judicial restraint paved the way for tyranny. He thought, e.g., that it was not unreasonable for a state to bar instruction in foreign languages. In the identical way the Progressives defended the need for “experiment” to solve economic regulation, Holmes declared: “I am unable to say that the Constitution of the United States prevents the experiment being tried” (p. 106). Holmes in Buck v. Bell (1927) not only condoned but enthusiastically approved another “experiment,” forced sterilization of the allegedly unfit. “Three generations of imbeciles are enough” (p. 107).

Epstein cites with devastating effect an article by Felix Frankfurter, a leading Progressive legal theorist. Frankfurter opposed state laws that restricted private schools. But the Supreme Court, he held, acted wrongly in overturning these laws. If the Court could act to protect civil liberties, how could it be stopped from impeding needed economic “experiments”? In an unsigned editorial in The New Republic (1927), Frankfurter said, “in words that must be quoted to be believed”: “In rejoicing over the Nebraska and Oregon cases [on freedom of education], we must not forget that a heavy price has to be paid for these occasional services to liberalism. The New York bakeshop case [Lochner], the validation of anti-trade union laws . . . are not wiped out by the Oregon decision. . . . For ourselves, we regard the cost of this power of the Supreme Court on the whole as greater than its gains” (pp. 106–07).

Evidently Frankfurter can be regarded as a precursor of F.A. Hayek’s The Road to Serfdom. Like Hayek, Frankfurter thought that judicial protection of civil liberties could not survive under economic planning. Unlike Hayek, he thought this was a reason to give up civil liberties. This is the upshot of the modern “scientific” doctrine that the Progressives used to combat the Old Court.

David Gordon covers new books in economics, politics, philosophy, and law for The Mises Review, the quarterly review of literature in the social sciences, published since 1995 by the Mises Institute. He is author of The Essential Rothbard, available in the Mises Store.

This review originally appeared in The Mises Review, Spring 2006.

After reading this book, you’ll see quite clearly that the original constitution has very little in common with how this government is run today (if you haven’t noticed already!) The 10th Amendment has been pushed aside and the federal government runs rampant – exercising powers that the founders would never have dreamed of giving to any politician.

Instead of a system of government that was to be dominated by state-level decisions, the judicial branch has giving us ruling after ruling that’s overturned these principles – and left us with a highly-centralized system where bureaucrats and even appointed officials make most of the decisions.

In essence, according to Gutzman, instead of a government limited in power and scope, we now have a “judgeocracy” with nearly limitless powers. Using the cloak of legitimacy that the judicial branch brings to the table, whatever the politicians want, they pretty much get.

This book is an absolute must-read for anyone concerned about liberty in this country.

As LewRockwell.com’s Thomas E. Woods put it:

No such radically Jeffersonian overview of American constitutional history, from its colonial and revolutionary antecedents all the way to the present, has ever been written. Every American needs the information in this book. Naturally, the guardians of fashionable opinion certainly don’t want them to have it, and neither does anyone in the political establishment.

So what are you waiting for?

It probably couldn’t be put any better than that – what are you waiting for? Go out and get this book.

Attorney General Alberto Gonzales on Wednesday warned federal judges not to meddle in cases involving national security, following a string of judicial rebukes of the Bush administration’s anti-terrorism initiatives.

In a speech to the conservative think tank American Enterprise Institute, Gonzales said federal judges are not “equipped to make decisions about” actions the president takes in the name of preserving national security.

Let’s be clear here. It is absolutely the role – the mandate – of the judicial branch to make decisions on whether or not the actions of the president (the whole government for that matter) fall within the powers allowed by the Constitution.

But wait, there’s more:

Gonzales added that the judiciary should show deference to the executive branch when national security is involved, because, unlike the Bush administration, judges “don’t have embassies around the world gathering up information.”

Whether or not this is now “official policy” is not the issue. The fact remains that a high-ranking executive branch official gave a “direction” to the judicial branch to stop looking at the constitutionality of the actions of the executive. Sounds pretty strange, doesn’t it?

The federal government cannot legally wield any power that is not specifically granted by the Constitution. According to the Tenth Amendment, powers not expressly delegated to the federal government are reserved “to the states respectively or to the people.”

Nowhere in the Constitution is there a power to allow the executive to direct the judiciary in any way. Nowhere in the Constitution is there a power for the judiciary to decline to ajudicate actions by the government because of a “direction” or “recommendation” by the Attorney General.

Since these powers are not delegated to the federal government, then they must be among those powers reserved “to the states respectively or to the people.” Simply put, the executive branch is not constitutionally empowered to “meddle” in the affiars of the Judiciary, whatsover.

The courts are the last line of defense that “we the people” have to protect ourselves from abuses by the legislative and executive branches. If judges collude with either of the other two branches of government, then the separation of powers, and thus, all hopes for individual liberty, will collapse.

If this becomes policy of the executive, or practice of the judiciary, there will be an absolute need for us to call for the resignation or impeachment of judges who refuse to carry out their duty.