Overruled (7 page)

But Peckham drew the line at the ten-hour provision. “A law like the one before us involves neither the safety, the morals, nor the welfare, of the public,” he argued. “Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week.”
29
Furthermore, unlike the mine workers in the
Holden
case, whose risky jobs justified additional state action, “the trade of a baker has never been regarded as an unhealthy one,”
30
meaning New York bakers already enjoyed sufficient protections thanks to the other regulations put in place by the Bakeshop Act. Given the facts of the case, Peckham concluded, the freedom of employer and employee “to contract with each other in relation to their employment, and in defining same, cannot be prohibited or interfered with, without violating the Federal Constitution.”
31

“The Natural Outcome of a Dominant Opinion”

Writing in dissent, Justice Oliver Wendell Holmes rejected every aspect of Peckham's ruling. Sixty-four years old at the time, and a twenty-year veteran of the Supreme Judicial Court of Massachusetts, where he had
served a stint as chief justice, Holmes was by then a well-known advocate of judicial restraint. His
Lochner
dissent both solidified and enhanced that reputation. Just over 600 words long, the dissent is packed with memorable phrases and has been cited countless times by a seemingly endless parade of judges, lawyers, academics, and journalists seeking to buttress their own arguments in favor of a deferential Court. “This case is decided upon an economic theory which a large part of the country does not entertain,” Holmes proclaimed at the outset. And that questionable theory—“the liberty of the citizen to do as he likes”—had no business replacing the majority's right “to embody their opinions in law.” As Holmes quipped, “The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.”
32

He was right about that, though not quite in the way he meant. Born in 1820, Herbert Spencer was a polymath English philosopher whose writings dealt with everything from politics to sociology to evolution.
Social Statics
(1851) was his second book and first big hit. In it, Spencer laid out what he called his “Law of Equal Freedom,” which he considered to be the first principle necessary to establish a “correct system of equity.” It held: “Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.”
33
That sweeping credo would not be out of place in the most radical of free-market manifestos, and indeed, Spencer was regarded as the late nineteenth century's leading proponent of full-throated laissez-faire. That's why Holmes cast him as the villain in his
Lochner
dissent. He wanted to paint the majority as a bunch of wild-eyed libertarians hell-bent on subverting democracy.

But as Peckham's majority opinion had made clear, judicial protection for the right to liberty of contract required nothing so revolutionary as Spencer's Law of Equal Freedom. Consider again the eight-hour law for miners upheld in
Holden
and reaffirmed in
Lochner
(even as the
Lochner
Court rejected the ten-hour law for bakers). There is no
way to reconcile that outcome with the basic premise of
Social Statics.
What business is it of the state, Spencer might have asked (he died in 1903), if a miner wanted to risk his life by working longer hours for extra money? The public was placed in no danger by his actions, so why not let the worker put himself in harm's way for a bigger payday? The
Lochner
majority, on the other hand, described the law as a valid safety measure enacted on behalf of vulnerable employees. In short, the
Lochner
ruling did not enact Mr. Herbert Spencer's
Social Statics.

But the Court's libertarian tendencies were not the only thing bothering Holmes about the outcome of the case. “I think that the word ‘liberty,' in the Fourteenth Amendment, is perverted,” he declared, “when it is held to prevent the natural outcome of a dominant opinion.” Put differently, the people of New York had a broad power to pass whatever laws they deemed fit, and the Supreme Court had no license to nose around in their affairs. The Constitution, Holmes claimed, “is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or laissez-faire.”
34
As he saw it, the
Lochner
majority had committed a grievous error not only by striking down a labor law, but by reading the Fourteenth Amendment as a tool for supervising state affairs in the first place. And as it happened, Holmes was not the only prominent public figure to think so.

Progressive Democracy

Historians generally date the Progressive era as beginning sometime in the early 1890s and concluding sometime in the early 1920s. It takes its name from the assorted politicians, lawyers, and reformers who advocated, seized, and wielded a vast new array of regulatory powers in those days, and it is characterized by their broad view that government should become the primary engine of social change. To that end, the Progressives
conceived or enacted many of the most transformative laws of the late nineteenth and early twentieth centuries, from antitrust statutes to the creation of the Federal Reserve banking system to the outlines of what we now consider to be the basic social safety net.

A quarrelsome and morally righteous bunch, the Progressives did not agree with each other on everything. Many of them favored the prohibition of alcohol, for example, seeing the demon rum as a monster unleashed to the detriment of American society; other Progressives, however, failed to see the harm in a working man taking a drink or two, especially after a long day toiling in a factory or walking the picket line. But they did agree on one thing: The
Lochner
decision, which arrived smack dab in the middle of Progressivism's heyday, felt like a slap to the collective face. And that's not just because
Lochner
struck down a regulation championed by organized labor. Like Holmes, the Progressives also hated
Lochner
because the ruling used the Fourteenth Amendment to thwart the will of a state legislature.

That last sentence might sound peculiar in the context of today's legal debates, in which liberalism is so closely associated with the use of the Fourteenth Amendment as a tool against state laws. Indeed, from desegregation to abortion, the Fourteenth Amendment has been inseparable from many of modern liberalism's biggest legal causes. But today's liberals are not carbon copies of their Progressive grandparents. Consider the modern campaign on behalf of gay marriage. When the Supreme Court heard arguments in 2013 over California's Proposition 8, a ballot initiative that had amended the state constitution in order to forbid same-sex unions, the lawyers challenging Prop 8 sought to use the Fourteenth Amendment's guarantee of equal protection to overrule the wishes of those voters and thereby legalize gay marriage—precisely the sort of Fourteenth Amendment jurisprudence Holmes spent his career arguing against. In the next chapter, we'll see how modern liberals learned to stop worrying and love judicial activism
(just as modern conservatives learned to stop worrying and love judicial restraint). But at this point in the story, the Progressives remain firmly on the side of majority rule and extremely hostile to almost any claim of individual liberty raised against state governments under the Fourteenth Amendment.

Take Herbert Croly, the widely read journalist and author who in 1914 founded Progressivism's flagship magazine,
The New Republic.
In his influential book
Progressive Democracy,
Croly maintained that the meaning of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment was “ambiguous and elastic” at best. “These rules had certainly never been framed for the purpose of curbing legislative action,”
35
Croly flatly asserted. Yet thanks to a conspiracy of judges, he went on, “the police power of the state legislatures was emasculated; and the system of government by Law at the hands of a judicial aristocracy was perfected.”
36

The celebrated Harvard law professor James Bradley Thayer, who served as a mentor to Oliver Wendell Holmes, championed an equally restrictive view of judicial power. According to Thayer, democratically enacted statutes should only be struck down in those rare instances “when those who have the right to make laws have not merely made a mistake, but have made a very clear one,—so clear that it is not open to rational question.”
37
In practical terms, this approach virtually eliminated the need for judicial review. But Thayer had no problem with that result, since he saw little reason for judges to ever intrude on the “wide margin of consideration” that must be accorded “to the practical judgment of a legislative body.”
38

Felix Frankfurter, who went on to advise President Franklin Roosevelt during the New Deal and later joined the Supreme Court as a Roosevelt appointee, not only agreed with Thayer, he took the position one step further, arguing in an unsigned
New Republic
editorial that the Due Process Clause should be stripped from the Constitution
entirely. “We have had fifty years of experiment with the Fourteenth Amendment,” Frankfurter wrote, and what that experiment proved to him was that “no nine men are wise enough and good enough” to enjoy such powers of judicial review. “The due process clauses ought to go.”
39

Even Louis Brandeis, the Progressive lawyer and Supreme Court justice best remembered today for his civil libertarianism and early championing of privacy and “the right to be let alone,”
40
favored granting broad deference to state lawmakers in most aspects of life. Brandeis even pointed to Holmes's infamous ruling in
Buck v. Bell,
which upheld the forced sterilization of a teenager, as a permissible example of a state government “meeting modern conditions by regulations.”
41

And then there is the most famous Progressive of them all: Theodore Roosevelt. It should come as perhaps no surprise to find the bombastic ex-president at the forefront of the roiling debate over the courts. Roosevelt began warming to the subject as early as 1908, when he criticized the Supreme Court for having a pro-corporate bias, and then again in 1910, when he denounced
Lochner
as an attack on “popular rights” in a speech before the Colorado legislature. “Such decisions, arbitrarily and irresponsibly limiting the power of the people,” Roosevelt declared, “are of course fundamentally hostile to every species of real popular government.”
42

But the Rough Rider really hit his stride two years later with an essay titled “Judges and Progress” written for the Progressive magazine
The Outlook,
where he was listed prominently on the masthead as a contributing editor. Referring repeatedly to “the Bakeshop Case,” Roosevelt argued that if such judicial shenanigans did not stop immediately, the people would be left with no choice but to strip the courts of their independence and subject judicial decisions (and judges) to recall by popular vote. “If a majority of the people, after due deliberation, decide to champion such social and economic reforms as those
we champion,” Roosevelt wrote, “they have the right to see them enacted into law and become a part of our settled government policy.”
43
The people, he emphasized, “must ultimately control its own destinies, and cannot surrender the right of ultimate control to a judge.”
44

In essence, the Progressives had declared war on the Fourteenth Amendment. And their brazen assault did not go unnoticed. Among the sharpest critics of their approach was the journalist H. L. Mencken, who took aim at Progressive legal thinking while reviewing a book-length collection of Justice Holmes's dissenting opinions. “Over and over again, in these opinions,” Mencken observed, Holmes “advocated giving the legislature full head-room, and over and over again he protested against using the Fourteenth Amendment to upset novel and oppressive laws, aimed frankly at helpless minorities.”
45
That's not responsible judging, Mencken argued, it's a gross dereliction of basic judicial duty. “If this is Liberalism,” he declared, “then all I can say is that Liberalism is not what it was when I was young.”
46

In truth, it's no secret why the Progressives adopted Justice Holmes as their legal standard-bearer. His belief in virtually unchecked majority rule lined up perfectly with their own plans to bring industrial society under government supervision and control. But as Mencken observed, that approach did leave something to be desired when it came to the plight of unpopular groups. What happened when the majority was willing to steamroll over minority rights and the courts were not willing to stop it?

In Restraint of Liberty

When President Woodrow Wilson led the United States to war against Germany in 1917, he did so in the name of making the world safe for democracy. But the former head of Princeton University was also worried about certain dangers lurking much closer to home. “There are citizens
of the United States, I blush to admit,” Wilson announced, “who have poured the poison of disloyalty into the very arteries of our national life. . . . [T]he hand of our power should close over them at once.”
47

The hand of power moved swiftly. On the national level, Congress responded to Wilson's fears by passing the Espionage and Sedition Acts, vaguely worded federal laws that effectively criminalized most forms of antiwar speech and activism. Indeed, it was the Espionage Act that landed the socialist leader Eugene Debs in federal prison for the harmless “crime” of giving a speech. But the crackdown on the radical left was just one part of Wilson's push for homeland security, as German-born Americans and their families quickly discovered.