by David Gordon,

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

How Progressives Rewrote the Constitution

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contended that changed economic conditions made “freedom of contract” and other shibboleths of the laissez-faire era outdated.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.

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