Justice Holmes and the Empty Constitution

On April 17, 1905, Justice Oliver Wendell Holmes Jr. issued his dissenting opinion in the case of Lochner v. New York.1 At a mere 617 words, the dissent was dwarfed by the 9,000 words it took for the Supreme Court’s eight other Justices to present their own opinions. But none of this bothered Holmes, who prided himself on writing concisely. “The vulgar hardly will believe an opinion important unless it is padded like a militia brigadier general,” he once wrote to a friend. “You know my view on that theme. The little snakes are the poisonous ones.”2

Of the many “little snakes” that would slither from Justice Holmes’s pen during his thirty years on the Supreme Court, the biting, eloquent dissent in Lochner carried perhaps the most powerful venom. A dissent is a judicial opinion in which a judge explains his disagreement with the other judges whose majority votes control a case’s outcome. As one jurist put it, a dissent “is an appeal . . . to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”3 Holmes’s Lochner dissent, though little noticed at first, soon attained celebrity status and eventually became an icon. Scholars have called it “the greatest judicial opinion of the last hundred years” and “a major turning point in American constitutional jurisprudence.”4 Today, his dissent not only exerts strong influence over constitutional interpretation and the terms of public debate, but it also serves as a litmus test for discerning a judge’s fundamental view of the United States Constitution. This means that any Supreme Court nominee who dares to question Holmes’s wisdom invites a fierce confirmation battle and risks Senate rejection. As one observer recently remarked, “The ghost of Lochner continues to haunt American constitutional law.”5

Holmes’s dissent in Lochner blasted the majority opinion endorsed by five members of the nine-man Court. Holmes, as if anticipating the modern era of “sound bites,” littered his dissent with pithy, quotable nuggets that seemed to render the truth of his opinions transparently obvious. Prominent scholars have called the dissent a “rhetorical masterpiece” that “contains some of the most lauded language in legal history.”6 His “appeal to the intelligence of a future day” was a stunning success. So thoroughly did Holmes flay the majority’s reasoning that Ronald Dworkin, a prominent modern legal philosopher, dismisses the majority decision as an “infamous . . . example of bad constitutional adjudication” that gives off a “stench”; and Richard A. Posner, prolific author and federal appellate judge, writes that Lochner is the type of decision that “stinks in the nostrils of modern liberals and modern conservatives alike.”7

What heinous offense did the Lochner majority commit to provoke Holmes’s caustic dissent? It was not the fact that they had struck down a New York law setting maximum working hours for bakers. Holmes personally disapproved of such paternalistic laws and never questioned the Supreme Court’s power to strike down legislation that violated some particular clause in the Constitution.8 No, in Holmes’s eyes the majority’s unforgivable sin did not lie in the particular result they reached, but in the method by which they reached it. The majority interpreted the Constitution as if it embodies a principled commitment to protecting individual liberty. But no such foundational principle exists, Holmes asserted, and the sooner judges realize they are expounding an empty Constitution—empty of any underlying view on the relationship of the individual to the state—the sooner they will step aside and allow legislators to decide the fate of individuals such as Joseph Lochner.

Lochner, a bakery owner whose criminal conviction sparked one of the Supreme Court’s most significant cases, never denied he had violated the New York Bakeshop Act of 1895. Instead, he contended that the statute itself was unconstitutional. The majority agreed with Lochner, and Holmes was moved to dissent—for reasons that are best understood against the background of Progressive Era reform.

The New York Bakeshop Act of 1895

The first decade of the twentieth century was a time of rapid economic and population growth in America. European immigrants streamed into the cities, searching for the upward economic and cultural mobility that defined the American Dream. Of course, they all needed to eat, and the baking industry was one of many that expanded rapidly to meet demand. From the growth pangs of that industry came the legal dispute that eventually took the form of Lochner v. New York.

The great, mechanized bakeries that today produce mass quantities of baked goods had not yet been organized. What few machines had been invented (such as the mechanical mixer, patented in 1880) were not widely owned.9 Thus three-quarters of America’s bread was baked at home, mostly in rural areas.10 But in the fast-growing cities, many people lived in tenement apartments that lacked an oven for home baking. Bread was baked here as it had been in urban environments for centuries, as it had been in ancient Rome—in commercial ovens scattered about the city. Consumers could walk a short distance and buy what they would promptly eat before it went stale (the first plastic wrap, cellophane, was not manufactured in America until 1924).11 In New York City, bakeries were often housed in tenement basements whose solid earth floors could support the heavy ovens.

From the great Midwestern farms came massive railroad shipments of flour, which was packaged and distributed by wagons and trucks to each bakery’s storeroom. Laborers were needed to unload bags and barrels that weighed as much as two hundred pounds; sift the flour and yeast; mix the flour with ingredients in great bowls, troughs, and sifters; knead the dough; fire up the ovens; shove the loaves in and out of the ovens; and clean and maintain the tools and facilities.12 Most urban bakeshops employed four or fewer individuals to perform this work.13 Long hours were typical, as was true generally of labor at the turn of the century, on farms and in factories. Indeed, bakers worked even longer hours than other laborers. Ovens were heated day and night, and bakers worked while others were sleeping, so that customers could buy fresh bread in the morning.14 A baker’s workday might start in the late evening and end in the late morning or early afternoon of the next day.15 A typical workday exceeded 10 hours; workweeks often consumed 70 or 80 hours, and on occasion more than 100 hours.16

These bakeshops did not feature the clean, well-lit, well-ventilated working conditions that mechanization and centralization would later bring to the industry. Urban bakeshops shared dark, low-ceilinged basement space with sewage pipes. Dust and fumes accumulated for lack of ventilation. Bakeshops were damp and dirty, and facilities for washing were primitive.17 In order to entice people to work long hours in these conditions, shop owners had to offer wages high enough to persuade laborers to forgo other opportunities. A typical bakeshop employee would earn cash wages of as much as $12 per week.18 Despite harsh conditions, the mortality rate for bakers did not markedly exceed other occupations.19 And many who had escaped Europe to pursue upward mobility discovered that competing employers—when they could be found—offered nothing better.

No governmental or private coercion required anyone to take a bakery job within the state of New York. Labor contracts were voluntary, and terminable at will. The law left each individual—employer and employee alike—free to make his own decisions, based on his own judgment, and to negotiate whatever terms were offered. But such voluntary arrangements were not satisfactory to the New York legislature in these, the early years of what later became known as the Progressive Era. The hallmark of that political reform movement, which began in the 1890s and ended with World War I, was increased government intervention in the marketplace through such measures as railroad regulation, antitrust legislation, and income taxation. Progressive reformers focused special attention on housing and working conditions and advanced a variety of arguments that laws should limit hours of labor. Some said this would spread jobs and wealth among more people, eliminating unemployment. Others attacked the validity of labor contracts reached between bakeshop owners and laborers. According to one critic, “An empty stomach can make no contracts. [The workers] assent but they do not consent, they submit but they do not agree.”20

The Bakeshop Act of 1895, sponsored by a coalition of prominent powers in New York politics, passed both houses of the state legislature unanimously.21 The Act made it a crime for the owner of a bakeshop to allow a laborer to work more than 10 hours in one day, or more than 60 hours in one week. Bakeshop owners, however, were exempted; only employees’ hours were limited.22 Although similar laws in other states allowed employees to voluntarily opt out, New York’s law included no such “free-contract proviso.”23 The law also provided funds for hiring four deputies to seek out violations and enforce the law.24

New York v. Lochner: Crimes and Appeals

During the first three months after the Bakeshop Act took effect, 150 bakeries were inspected, of which 105 were charged with violations.25 In 1899, inspectors brought about the arrest of Joseph Lochner, a German immigrant whose shop, Lochner’s Home Bakery, was located upstate in Utica.26 Lochner had arrived in America at age 20 and worked for eight years as a laborer before opening his own shop. In contrast to the dreary basement bakeries that furnished the Bakeshop Act’s rationale, Lochner’s bakery (at least, as shown in a 1908 photograph) seems to have been a “relatively airy and mechanized aboveground shop.”27 In any event, Lochner was indicted, arraigned, tried, and convicted of having offended the statute in December 1899, by permitting an employee to work more than 60 hours in one week. To avoid a 20-day jail sentence, Lochner paid the $20 fine.28 Two years later, Lochner was arrested again, for having allowed another employee to work more than 60 hours.29 (Not coincidentally, Lochner had been quarreling for many years with the Utica branch of the journeyman bakers’ union, an avid supporter of the maximum hours regulation.)30 Offering no defense at his 1902 trial, Lochner was sentenced to pay $50, or serve 50 days in jail. This time, however, instead of paying the fine, he appealed his conviction.31 Lochner seems to have been a “hardheaded man who had determined that no one else was going to tell him how to run his business—not the state of New York and especially not the workers or their union.”32

The first New York appellate court to consider Lochner’s case held that the parties’ right to make employment contracts was subordinate to the public’s power to promote health. The court treated the Bakeshop Act as a health law, assuming (without factual findings from the trial court) that working long hours in hot, ill-ventilated areas, with flour dust in the air, “might produce a diseased condition of the human system, so that the employees would not be capable of doing their work well and supplying the public with wholesome food.”33 Rejecting Lochner’s argument that his contract rights were being violated, the court observed that “the statute does not prohibit any right, but regulates it, and there is a wide difference between regulation and prohibition, between prescribing the terms by which the right may be enjoyed, and the denial of that right altogether.”34 In other words, a right is not violated unless it is annihilated.

The next New York appellate court to consider Lochner’s case also treated the Bakeshop Act as a health law that trumped the parties’ right to make labor contracts. The court pointed out that the statute regulated not only bakers’ working hours but a bakeshop’s drainage, plumbing, furniture, utensils, cleaning, washrooms, sleeping places, ventilation, flooring, whitewashing, and walls, even to the point that the factory inspector “may also require the wood work of such walls to be painted.”35 Given the Act’s close attention to such health-related details, the court thought it “reasonable to assume . . . that a man is more likely to be careful and cleanly when well, and not overworked, than when exhausted by fatigue, which makes for careless and slovenly habits, and tends to dirt and disease.”36

New York’s power to regulate for health reasons was grounded, the court held, in the “police power” that state governments possess as part of their sovereignty. While noting the “impossibility of setting the bounds of the police power,” the court held that the Bakeshop Act’s purpose “is to benefit the public; that it has a just and reasonable relation to the public welfare, and hence is within the police power possessed by the Legislature.”37 According to a then-prominent legal treatise cited by the court, the Act’s maximum hours provision was especially necessary to safeguard health against the supposedly mind-muddling effects of capitalism:

If the law did not interfere, the feverish, intense desire to acquire wealth . . . inciting a relentless rivalry and competition, would ultimately prevent, not only the wage-earners, but likewise the capitalists and employers themselves, from yielding to the warnings of nature and obeying the instinct of self-preservation by resting periodically from labor.38

In a concurring opinion, another judge warned that to invalidate the law would “nullify the will of the people.”39

In dissent, however, Judge Denis O’Brien urged that the Bakeshop Act be struck down as unconstitutional. He, too, acknowledged the long-established understanding that the police power authorizes legislation “for the protection of health, morals, or good order,” but he did not believe that the maximum hours provision served any such purpose.40 Instead, he urged that this portion of the law be voided as an unjustified infringement on individual liberty:

Liberty, in its broad sense, means the right, not only of freedom from actual restraint of the person, but the right of such use of his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel those rights or restrict his freedom of action, or his choice of methods in the transaction of his lawful business, are infringements upon his fundamental right of liberty, and are void.41

In so dissenting, Judge O’Brien was following leads supplied by Supreme Court Justices as to how the Constitution should be interpreted. Justice Stephen Field, dissenting in the Slaughter-House Cases of 1873, had argued that a state monopoly on slaughterhouse work violated the “right to pursue one of the ordinary trades or callings of life.”42 And in Allgeyer v. Louisiana,an 1897 case, the Supreme Court had actually struck down a Louisiana insurance law, holding that the Constitution’s references to “liberty” not only protect “the right of the citizen to be free from the mere physical restraint of his person, as by incarceration” but also “embrace the right of the citizen to be free in the enjoyment of all his faculties . . . to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper.”43

As Joseph Lochner pondered his next step, he found cause for hope in the fact that his conviction had been upheld by the narrowest possible margins (3–2 and 4–3) in New York’s appellate courts. The conflict between “liberty of contract” and the “police power,” like a seesaw teetering near equilibrium, seemed capable of tipping in either direction. Sensing that victory was attainable, Lochner took his fight to the highest court in the land.

Lochner v. New York: The Supreme Court’s Decision

When Lochner’s petition arrived at the Supreme Court, it was accepted for review by Justice Rufus Peckham, a noted opponent of state regulation and author of the Court’s Allgeyer opinion.44 The case was argued over two days in February 1905.45 At first the court voted 5–4 in private conference to uphold Lochner’s conviction. But then Justice Peckham wrote a sharp dissent that convinced another Justice to change his mind. With a little editing, Peckham’s dissent then became the majority’s official opinion declaring the Bakeshop Act unconstitutional.46

Early in his opinion, Peckham conceded that all individual liberty is constitutionally subordinate to the amorphous “police power”:

There are . . . certain powers, existing in the sovereignty of each state in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers. . . .47

Thus Peckham had to admit that the bulk of the Bakeshop Act, being directed at health hazards curable by better plumbing and ventilation, was valid under the police power. But the Act’s maximum hours provision, Peckham wrote, was not really a health law, because it lacked any “fair ground, reasonable in and of itself, to say that there is material danger to the public health, or to the health of the employees, if the hours of labor are not curtailed.”48

So if the maximum hours provision was not a health law, what was it? In the majority’s view it was a “labor law,” designed to benefit one economic class at another’s expense.49 “It seems to us,” Peckham wrote, “that the real object and purpose were simply to regulate the hours of labor between the master and his employees . . . in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employees.”50 Finding that the “statute necessarily interferes with the right of contract between the employer and employees,” Peckham concluded that laws such as this, “limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual. . . .”51 Four Justices sided with Peckham in holding that the “limit of the police power has been reached and passed in this case,” yielding a five-man majority to strike down the maximum hours portion of the New York Bakeshop Act.52 (Three Justices, not including Holmes, dissented on grounds that the law really was a health measure and therefore valid under the police power.)

At this point—that is, before taking Holmes’s dissent into account—opinions on the Bakeshop Act’s validity had been expressed by some 20 appellate judges (12 in New York, and 8 on the Supreme Court). Remarkably, these 20 had split evenly: Ten thought the Act a legitimate exercise of the police power, while 10 thought it exceeded that power.53 This is the kind of split opinion one might expect from a jury that has been asked to decide a close question of fact, such as whether the noise from a woodworking shop is loud enough to be classified as an illegal nuisance. In Lochner’s case, a score of highly experienced judges split down the middle while engaged in what they saw as a similar task, namely deciding whether a provision restricting work hours was or was not a health law.

Justice Holmes, by radically reframing the issue over which his brethren had been agonizing, sought to show how this thorny problem could be made to disappear. In essence he asked a much more fundamental question: What if the Constitution contains no limit on the police power? What if the distinction between “health laws” and other types of law is just a red herring? In raising this issue, Holmes was banking on the fact that nobody—not even the five-man Lochner majority—regarded “liberty of contract” as an ironclad principle or claimed to know the precise nature of the states’ constitutional “police powers.” Before he was through, Holmes would call into question not only the majority’s decision to invalidate the Bakeshop Act but the very idea that the United States Constitution embodies principles relevant to such decisions.

Holmes in Dissent: The Empty Constitution

Uninterested in whether or not the Bakeshop Act was a health law, Holmes devoted only a single line of his dissent to the issue: “A reasonable man might think it a proper measure on the score of health.”54 As one commentator noted, he “entirely ignored his colleagues and refused to engage in their debate about how to apply existing legal tests for distinguishing health and safety laws from special interest legislation.”55 Holmes, who has been called “the finest philosophical mind in the history of judging,” had more profound issues on his mind.56

Peckham’s majority opinion had been based on the premise that the Constitution protects individual liberty, including liberty of contract. Holmes attacked that premise outright. How could liberty of contract possibly be a principle capable of yielding a decision in Lochner’s case, Holmes asked, when violations of such liberty are routinely permitted by law? “The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same,” Holmes observed, “is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.” For good measure, he cited several cases in which the Court had recently approved laws prohibiting lotteries, doing business on Sunday, engaging in usury, selling stock on margin, and employing underground miners more than eight hours a day—each law a clear interference with contractual liberty. “General propositions do not decide concrete cases,” Holmes nonchalantly concluded—and what judge could have shown otherwise, given the state of American jurisprudence at the time?

With “liberty of contract” in tatters, Holmes could casually dismiss it as a mere “shibboleth,” a subjective opinion harbored by five Justices that has no proper role in constitutional adjudication.57 To drive home his contempt for the majority’s approach, Holmes included in his Lochner dissent a snide, sarcastic gem that has become the most quoted sentence in this much-quoted opinion: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”58 For a modern reader to grasp the meaning of this reference, some factual background is required. The English author Herbert Spencer (1820–1903) was a prominent intellectual whose most important book, Social Statics,was originally published in 1853 and reissued continually thereafter. “In the three decades after the Civil War,” one historian has written, “it was impossible to be active in any field of intellectual work without mastering Spencer.”59 Central to Spencer’s thinking was a belief that our emotions dictate our moral values, which include an “instinct of personal rights.”60 That “instinct” Spencer defined as a “feeling that leads him to claim as great a share of natural privilege as is claimed by others—a feeling that leads him to repel anything like an encroachment upon what he thinks his sphere of original freedom.”61 This led Spencer to conclude: “Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.”62 Holmes, by coyly denying that Spencer’s “law of equal liberty” had the solemn status of a constitutional principle, masterfully conveyed two points: that any principle of individual liberty must emanate from a source outside the Constitution, not within it—and that the Peckham majority’s “liberty of contract” had the same intellectual status as Spencer’s emotionalist rubbish. “All my life I have sneered at the natural rights of man,” Holmes confided to a friend some years later.63 But in a lifetime of sneering, Holmes never uttered a more damaging slur than this offhand reference to Herbert Spencer’s Social Statics.

In order to mock “liberty of contract” as nothing more than a reflection of the majority’s tastes in popular reading, Holmes had to evade large swaths of evidence tending to show that the Constitution indeed embodies a substantive commitment to individual liberty. In the Declaration of Independence, the Founders clearly stated their intent to create a government with a single purpose—the protection of individual rights to life, liberty, and the pursuit of happiness. Consistent with the Constitution’s Preamble, which declares a desire to “secure the blessings of liberty to ourselves and our posterity,” every clause in the Bill of Rights imposes a strict limit on government’s power over individual liberty and property. In addition, Article I forbids the states to pass any law “impairing the obligation of contracts.”64 And to prevent future generations from interpreting such clauses as an exhaustive list, the Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

To be sure, the Constitution’s basic principle was undercut by important omissions and contradictions, the most serious being its toleration of slavery at the state level. But the Civil War tragically and unmistakably exposed the evil of a legal system that allows state governments to violate individual rights.65 Immediately after that war’s end, three constitutional amendments re-defined and strengthened the federal system, elevating the federal government to full sovereignty over the states and extending federal protection to individuals whose rights might be violated by state legislation. Two of these amendments were quite specific: The Thirteenth banned slavery, and the Fifteenth required that blacks be allowed to vote. But the Fourteenth Amendment’s reach was much broader. Not only did it endow individuals with federal citizenship, it also specified that no state government shall “abridge the privileges or immunities”66 of any citizen or deprive any person of “life, liberty, or property, without due process of law.”

In light of this context, no honest jurist in 1905 could deny that the Constitution embodies certain views on the proper relationship between the individual and his government. Reasonable disagreements might concern how that basic framework should guide interpretation of the document’s express language, but no such disagreement could obscure the fact that the Constitution was chock-full of substantive content. Yet it was precisely this fact that Holmes now urged the Court to evade. The same compromises and exceptions that rendered “liberty of contract” an easy target in Holmes’s attack on the Lochner majority also lent plausibility to his wider assault on the notion that America’s Constitution embodies any principles at all. A constitution, he wrote, “is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” As is evident from the two illustrations he chose, Holmes was using “economic theory” to mean a principle defining the individual’s relationship to the state. His first example, “paternalism and the organic relation of the citizen to the State,” refers to the Hegelian view that a nation, in one philosopher’s description, “is not an association of autonomous individuals [but] is itself an individual, a mystic ‘person’ that swallows up the citizens and transcends them, an independent, self-sustaining organism, made of human beings, with a will and purpose of its own.”67 Thus, as Hegel wrote, “If the state claims life, the individual must surrender it.”68 Holmes’s second example, “laissez faire,” refers to unregulated capitalism, a social system in which a nation is an association of autonomous individuals, who appoint government as their agent for defending individual rights (including private property rights) against force and fraud.

In Holmes’s view, a constitution cannot and should not attempt to embody either of these theories, or indeed any particular view on the individual’s relation to the state. Rather, a constitution is “made for people of fundamentally differing views,” any one of which may rightfully gain ascendancy if its adherents compose a sufficiently influential fraction of the electorate. As Holmes put it: “Every opinion tends to become a law,” and the reshaping of law is the “natural outcome of a dominant opinion.”69 In other words, a nation made up of capitalists, socialists, communists, anarchists, Quakers, Muslims, atheists, and a hundred other persuasions cannot reasonably expect its constitution to elevate one political view above all the others. Because opinions vary so widely, a nation that deems one superior to all others risks being torn apart by internal dissensions unable to find outlets in the political process. On this view, a proper constitution averts disaster by providing an orderly mechanism for embodying in law the constantly shifting, subjective opinions of political majorities. As one commentator explained, “Holmes believed that the law of the English-speaking peoples was an experiment in peaceful evolution in which a fair hearing in court substituted for the violent combat of more primitive societies.”70 It did not trouble Holmes that under such a constitution, society might adopt “tyrannical” laws. As he once wrote to a friend, “If my fellow citizens want to go to Hell I will help them. It’s my job.”71 And so Holmes was able to conclude, in his Lochner dissent, “that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion.”

So there you have it. In just 617 carefully chosen words, the framework of liberty erected by the Founding Fathers and buttressed by the Civil War amendments had been interpreted out of existence.

According to Holmes, judges who claim to find fundamental principles in the Constitution are merely giving vent to their own personal political beliefs, which make some laws seem “natural and familiar” and others “novel, and even shocking.” But either reaction, in his view, is an “accident” having no proper place in adjudication. A judge’s “agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law,” Holmes wrote, no matter what the judge’s reasons. “Some of these laws embody convictions or prejudices which judges are likely to share,” said Holmes. “Some may not.”72 Thus, it makes no difference whether a judge holds a conviction based on careful reflection, and an understanding of the Constitution’s specific clauses and content, its history and mission—or merely harbors a prejudice based on upbringing, social class, or a desire to please those in power. All such views are personal to the judge and hence irrelevant in adjudication—an interpretive principle to which Holmes made no exception for himself. “This case is decided upon an economic theory which a large part of the country does not entertain,” Holmes wrote in Lochner. “If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty. . . .”

In short, Holmes believed that the Supreme Court presides over an empty Constitution—empty of purpose, of moral content, of enduring meaning—bereft of any embedded principles defining the relationship between man and the state. This distinctively Holmesian view, novel in 1905, is today’s orthodoxy. It dominates constitutional interpretation, defines public debate, and furnishes a litmus test for evaluating nominees to the Supreme Court. Although judges sometimes close their eyes to its logical implications when their pet causes are endangered, Holmes’s basic argument remains unrefuted by the legal establishment. In his bleak universe, there exists no principled limit on government power, no permanent institutional barrier between ourselves and tyranny—and the government can dispose of the individual as it pleases, as long as procedural niceties are observed. This pernicious Holmesian influence is reflected in the declining stature of America’s judiciary.

Lochner’s Legacy: Empty Robes

Although the Lochner decision was influential for a time, it was ultimately overshadowed by Holmes’s dissent. During the 32-year period (1905–1937) known as “the Lochner era,” the Supreme Court occasionally emulated the Lochner majority by striking down state laws in the name of individual liberty.73 For example, the Court overrode laws setting minimum wages for women, banning the teaching of foreign languages to children, and requiring children to attend public schools.74 But then, in 1937, at the height of the New Deal, the Court “finally ended the Lochner era by upholding a state minimum wage law.”75 A year later, the Court announced that all economic intervention would be presumed valid, unless a “specific prohibition of the Constitution” (for instance, Article I’s ban on export taxes at the state level) said otherwise.76 In effect, any new exercise of government power over the economy was now presumed innocent until proven guilty. As the Supreme Court said in another New Deal case, “A state is free to adopt whatever economic policy may reasonably be deemed to promote the public welfare,” and the “courts are without authority . . . to override it.”77 One scholar summarized the sea change this way: “When the New Deal Court repudiated Lochner after 1937, it was repudiating market freedom as an ultimate constitutional value, and declaring that, henceforth, economic regulation would be treated as a utilitarian question of social engineering.”78 The Lochner majority was last cited approvingly by the Supreme Court in 1941.79

Holmes’s dissent was instrumental in consigning the Lochner decision to legal hell. According to liberal Justice Felix Frankfurter, the dissent was “the turning point” in a struggle against “the unconscious identification of personal views with constitutional sanction.”80 Echoing Holmes, conservative theorist Robert Bork has reviled Lochner as a “notorious” decision that enforced “an individual liberty that is nowhere to be found in the Constitution itself.”81 Added Bork: “To this day, when a judge simply makes up the Constitution he is said ‘to Lochnerize.’ . . .”82 Other commentators agree: “Supreme Court justices consistently use Lochner as an epithet to hurl at their colleagues when they disapprove of a decision declaring a law unconstitutional.”83 “We speak of ‘lochnerizing’ when we wish to imply that judges substitute their policy preferences for those of the legislature.”84 Typical of modern attitudes are the Washington Post’s reference to the “discredited Lochner era”85 and the New York Times’sobservation that the era “is considered one of the court’s darkest.”86

With the canonization of Holmes’s Lochner dissent, a miasma of judicial timidity seeped into America’s courtrooms. More than sixty years have elapsed since the Supreme Court last struck down an economic regulation on grounds that it violated unenumerated property or contract rights. And in the noneconomic realm, the Court’s Lochner-esque decision in Roe v. Wade (1973) generated fierce public and professional backlash, discouraging further forays of that type. In Roe, a decision “widely regarded as the second coming of Lochner,”a sharply divided Court held that the Constitution protects a woman’s right to abort her first-trimester fetus.87 Here, one must carefully distinguish the method of that Court’s decision from its specific content. Because the Constitution does not expressly authorize states to ban abortion, the Court was entitled to evaluate the law’s validity in light of the Constitution’s fundamental commitment to protecting individual liberty (including that of women, regardless of any errors the Founders may have made on that score). One can agree with that liberty-oriented approach and yet still acknowledge the Court’s failure to apply it persuasively. (Essentially, the Roe Court recited a grab bag of pro-liberty clauses and precedents and invited the reader to choose a favorite.)88

Predictably, however, conservatives have aimed their critical arrows—dipped in the venom of Holmes’s dissent—straight at Roe v. Wade’sconclusion that the Constitution protects individual liberty. Those arrows struck home. A large segment of the public now believes that any such holding, no matter how firmly grounded in the Constitution’s language and history, is merely rhetorical camouflage for judges’ assumption of extra-constitutional power to impose their own personal opinions on the law.89 Little wonder that recurring public protests and even death threats have dogged the Court ever since. Fear of similar backlash has hindered the administration of justice in other areas as well. For example, the Court needed seventeen years of hand-wringing to finally decide, in Lawrence v. Texas (2003), that the Constitution does not permit gays to be thrown in jail for private, consensual sex.90 Dissenting in that case, Justice Scalia referenced Lochner obliquely, asserting that the Constitution no more protects homosexual sodomy than it does the right to work “more than 60 hours per week in a bakery.”91

Notwithstanding occasional hard-won exceptions, the emasculated Supreme Court now spurns virtually every opportunity to search the Constitution for underlying principles that place limits on state power. A few years ago, when Suzette Kelo’s house was seized under the eminent domain power for transfer to a private developer in Connecticut, she took her case to the Supreme Court—only to be told that the Constitution offers her no protection.92 Abigail Burroughs, terminally ill with neck and head cancer, died several years before the Court disdainfully turned its back on her survivors’ plea for a constitutional right to use experimental life-saving medicine unapproved by the Food and Drug Administration.93 And Dr. Harold Glucksberg, a physician whose terminally ill patient sought a painless suicide, lost his case on the grounds that offering voluntary medical assistance at the end of life is not “deeply rooted in this Nation’s history and tradition.”94 Cases such as these have made it painfully clear to Americans that their Constitution—as interpreted by the modern Supreme Court—imposes no principled limits on the state’s power to dispose of their property and lives. If more proof is necessary, observe that both the Bush and Obama administrations, in recent highly publicized legislation, have dramatically expanded government control of the economy and of private businesses without any discernible worry that the Supreme Court will trouble itself over the rampant abrogation of private property and contract rights.

Lochner’s Other Legacy: An Empty Debate

By arguing that the Constitution is nothing but a highly formalized mechanism for molding subjective opinions into law, Holmes shifted the terms of public debate toward discussion of whose subjective opinions count. Beginning in the 1980s, conservatives such as Edwin Meese III, the U.S. attorney general under Ronald Reagan, and Robert Bork, federal judge and failed Supreme Court nominee, successfully framed the alternatives for constitutional interpretation in Lochnerian terms. According to this view, judges have only two options: to emulate the majority in Lochner by brazenly enforcing their own subjective opinions—or to emulate Holmes in dissent by deferring to the subjective opinions of society (as manifested by legislative vote). In today’s parlance, this means judges must choose between “judicial activism” and “judicial restraint.”95 On this basis, Holmesian conservatives routinely condemn Lochner v. New York, Roe v. Wade, Lawrence v. Texas,and similar cases asillegitimate exercises of raw judicial power, “activist” decisions unauthorized by the Constitution and dangerous to the body politic. According to Bork, Lochner “lives in the law as the symbol, indeed the quintessence, of judicial usurpation of power.”96

Today’s liberals generally find themselves on the defensive against such conservative attacks. On the liberal view, a mechanically applied doctrine of “judicial restraint” would improperly tie judges’ hands, allowing legislative majorities unrestrained power to enact any law not expressly forbidden by the Constitution. As Judge Posner has observed, “This would mean that a state could require everyone to marry, or to have sexual intercourse at least once a month, or that it could take away every couple’s second child and place it in a foster home.”97 But as an alternative to the folly of such “judicial restraint,” liberals offer dubious interpretive methods of their own. Rather than refute Holmes’s attack on the Lochner majority, liberals contend that the Constitution “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”98 Or, as Al Gore pledged during his 2000 presidential run, “I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.”99

In sum, neither conservatives nor liberals have advanced a method of interpretation aimed at objectively identifying and applying constitutional principles that limit the power of government over the individual. Instead, both factions accept the Holmesian model that makes all government action a matter of subjective social opinions. Although the factions differ in detail—conservatives are more likely to venerate freeze-dried opinions from centuries past, whereas liberals prefer a bubbling stew of modern sentiments—the current controversy is nothing but Lochner warmed over. As one legal history states more formally, “The majority and dissenting opinions in Lochner stand today as landmarks in the literature of judicial activism and restraint.”100 So long as Lochner sets the terms of debate, Americans will continue to believe they face a Hobson’s choice between judicial eunuchs who passively allow legislatures to dominate a helpless populace—and judicial dictators who actively impose their own personal prejudices on that same helpless populace. Given those alternatives, it is no wonder that Holmesian conservatives are winning the public debate. Any citizen who wants to have some slight influence on the “dominant opinion” will more likely prefer an all-powerful legislature beholden to the voting public, as against an all-powerful, life-tenured judiciary beholden to no one.

In recent decades, the bellwether of this struggle between “activism” and “restraint” has been Roe v. Wade—and so it will continue, until that fragile decision is either overruled or placed on a sound constitutional basis.101 For many years now, the addition of a single conservative Justice would have been enough to tip the balance against Roe. If that decision is finally overruled on Holmesian grounds, then the last ragged vestiges of a principled, content-filled Constitution will have succumbed. After that, it may become virtually impossible to hear the voices of the Constitution’s framers above the clamor of pressure groups competing to forge the next “dominant opinion.” Ultimately, the outcome may depend on whether dissenters from the Holmesian consensus continue to be exposed and ostracized at the judicial nomination stage, by means of the Lochner litmus test.

The Lochner Litmus Test

During his lifetime, Holmes took pleasure from the prospect that his work would have enduring influence after his death. He once spoke, with characteristic eloquence, of feeling

the secret isolated joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who never heard of him will be moving to the measure of his thought—the subtle rapture of a postponed power, which the world knows not because it has no external trappings, but which to his prophetic vision is more real than that which commands an army.102

And indeed, the world is still “moving to the measure of his thought.” Holmes’s dissent is largely responsible for the “modern near-consensus that unelected justices have no mandate ‘to impose a particular economic philosophy upon the Constitution.’”103 Notably, President Obama’s regulatory czar, Cass Sunstein, is a former constitutional law professor who wrote an article, “Lochner’sLegacy,” stating that “for more than a half-century, the most important of all defining cases has been Lochner v. New York.”104 In this post-Lochner world, it is not intellectually respectable to hold that the Constitution embodies any particular view of the relationship between the individual and the state. A judge who dares to suggest otherwise will inevitably be accused of resurrecting Lochner. And a judicial nominee who fails to pledge allegiance to Holmes’s empty Constitution may be grilled and required to recant, on pain of losing a confirmation vote.

Consider two examples. Clarence Thomas, before being nominated to the Supreme Court, had said in a speech that “the entire Constitution is a Bill of Rights; and economic rights are protected as much as any other rights.”105 When Thomas’s nomination reached the Senate, noted liberal constitutional scholar Laurence Tribe opposed confirmation in a New York Times op-ed that said: “Thomas would return the Court to the Lochner (1905) era—an era in which the Court was accused of sacrificing the health and safety of American workers at the altar of laissez-faire capitalism.”106 Thomas later went on the record as rejecting a return to the Lochner approach and endorsing the line of cases that discredited the majority opinion.107 The Senate then confirmed his appointment, but by a razor-thin margin (52–48). Similarly, in another confirmation fight fourteen years later, a young senator (and former law professor) named Barack Obama spoke out against the nomination of California appellate judge Janice Rogers Brown to the federal bench. It seems that Brown, in a public speech, had dared to disagree with Holmes, asserting that his “Lochner dissent has troubled me—has annoyed me—for a long time . . . because the framers did draft the Constitution with a surrounding sense of a particular polity in mind. . . .”108 Obama leaped to the attack: “For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court.”109 Predictably, Brown backtracked during her confirmation hearings, pledging that she would not really pursue a Lochner approach.110 She was then confirmed, narrowly, by a 56–43 vote.111

As President Obama and the Senate gear up to select a replacement for retiring Justice David Souter, the Lochner litmus test will once again serve as a powerful tool for identifying a nominee’s fundamental approach to construing the Constitution. The alternatives embodied in Lochner will be trotted out once again, and candidates will be invited to condemn the discredited majority approach and endorse the Holmesian view.

But what if the opinions set forth in Lochner do not exhaust the alternatives? What if judges can properly aspire to be, not petty despots or passive rubber stamps, but objective interpreters of a constitution by means of its fundamental principles? The question deserves attention, before the Supreme Court sinks into a timorous lassitude from which it cannot recover.

The Path Not Taken

Justice Holmes took advantage of clashing precedents to claim that the Constitution lacks all content, that the nation’s fundamental law is agnostic on the issue of man’s relation to the state. But Holmes was wrong about the empty Constitution. Not only is the document saturated with substantive content, but the deliberate disregard of that content inevitably left an interpretive vacuum where the Founders’ framework once stood, a vacuum that had to be filled by some other principle of man’s relation to the state. If the Lochner dissent was to be taken seriously, the individual had to be treated on principle as a rightless creature doomed to cringe before the “natural outcome” of society’s “dominant opinion,” and the Constitution had to be regarded on principle as an institutional juggernaut imposing society’s shifting, subjective opinions on recalcitrant individuals. Thus by intellectual sleight of hand, Holmes managed to radically redefine the Constitution’s content while presenting himself as the very soul of content-neutrality. And for more than a century now, we have been “moving to the measure of his thought,” following Holmes’s path into that shadowy, clamorous jungle where pressure groups struggle incessantly for the privilege of imposing their arbitrary “dominant opinions” on others, by force of law—while individuals are legally helpless to resist ever-growing assaults on their lives, liberties, and property. Only by retracing our steps and revisiting the Lochner decision with a different mind-set can we hope to find a clearer road.

The Lochner case arrived at the Supreme Court in the posture of a dispute over whether a restriction on working hours was a health law or not. But in his dissent Holmes highlighted a more fundamental issue: Does the Constitution protect the principle of liberty of contract? If so, then the government’s so-called police power is and must be severely limited—limited by the principle of the inalienable rights of the individual. But if a principle is a general truth that guides action in every case where it applies, brooking no exceptions, then surely neither the “police power” nor “liberty of contract,” as defined by the Court at that time, qualified as a genuine principle. The vague and undefinable “police power” gave society virtually unlimited control over the individual—yet even in Holmes’s view, that power was somehow subordinate to the equally vague “traditions of our people and our law.” On the other hand, “liberty of contract” supposedly protected an individual’s right to dispose of his labor and property—except in the dozens of situations where the police power could override it. How could a judge possibly know when to apply one and not the other? There was no objective basis for choosing.

Despite the lack of clear, consistent principles to govern cases such as Lochner’s, a Supreme Court Justice with Holmes’s penetrating philosophical skills could have explained, even in 1905, why both Holmes and the majority were erring in their approaches to Lochner’s case. That explanation would have had to begin with the realization that every constitution embodies some particular view of the individual’s relation to the state. Although Holmes was wrong to deny that the Constitution has content, the majority was also wrong in its interpretation of that content. On that score, it was surely preposterous for Justice Peckham to concede that individuals’ liberty and property are held in thrall to each state’s “vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts.” After all, the term “police power” is not even mentioned in the Constitution, and nowhere does the document require that states be allowed to legislate for the “safety, health, morals and general welfare of the public,” a shapeless pile of verbiage that could excuse almost any law, regardless of content. Although it is true that the states in a federal system must be recognized as possessing power to enact and enforce laws, there was never any need to define that power in a way that threatened the Constitution’s underlying framework of protection for individual rights. Under a more objective concept of New York’s “police power,” therefore, the Court’s inquiry would have shifted to whether the Bakeshop Act protected Lochner’s rights or violated them.

As to what Lochner’s individual rights entailed, again the Constitution’s content could not properly be ignored. For example, the document’s references to the inviolable “obligation of contracts” (Article I), unenumerated rights “retained by the people” (Ninth Amendment), citizens’ inviolable “privileges or immunities” (Fourteenth Amendment), and individuals’ rights to “life, liberty, and property” (Fourteenth Amendment), all would have been recognized as relevant. Although it would not have been self-evident which clauses might apply to Lochner’s case or precisely how they should be interpreted, the Court could have taken first steps toward limiting the amorphous police power. How? By defining liberty of contract as a principle subsuming an individual’s unassailable freedom to trade his property, his money, and his labor according to his own judgment. Contra Holmes, general propositions can decide concrete cases, if those propositions are objectively defined. But such definition is impossible, at the constitutional level, so long as judges refuse to acknowledge that government exists for any particular purpose.

None of this is to deny that constitutional interpretation can be fraught with difficulty. Reasonable judges can arrive at different interpretations, especially in cases at the intersection of individual rights and legitimate exercises of government power. And even the most incisive interpretations cannot, and should not attempt to, rewrite the Constitution. So, for example, as long as the Post Office clause resides in Article I, the Supreme Court cannot abolish that ponderous government monopoly—even if it violates liberty of contract in obvious ways. Moreover, the Court must pay due respect to precedent, while never allowing an injustice to survive any longer than may be necessitated by innocent reliance on prior erroneous rulings. But in the mind of an objective judge, none of these pitfalls will obscure the fact that the Constitution has content—a specific view of the proper relation between man and the state—which content cannot be ignored without betraying the Court’s duty of objective interpretation. To take the purpose of government into account when interpreting the Constitution’s express language is not a judicial usurpation of power. On the contrary, it is an essential part of objective interpretation, no more in need of special authorization than is the use of concepts or logic.112

Ayn Rand once observed that Justice Holmes “has had the worst philosophical influence on American law.”113 The nihilistic impact of his Lochner dissent alone is enough to justify her claim. But it is not too late for a new generation of jurists to target that influence for elimination, by embarking upon the mission that Holmes and his brethren should have undertaken a century ago. Tomorrow’s jurists will need to honestly confront Lochner, that “most important of all defining cases” in American jurisprudence, with the understanding that neither the majority nor the dissents in that case properly took into account the Constitution’s substantive content. They will need to challenge the false Lochnerian alternatives of “judicial activism” and “judicial restraint.” And they will need to question whether, and on what grounds, Lochner should continue to serve as a litmus test for Supreme Court appointees. Once the “ghost of Lochner” has ceased to haunt American constitutional law, the Supreme Court can assume its proper role as ultimate legal authority on the objective meaning of America’s founding document.

About Thomas A. Bowden

Thomas A. Bowden (JD, University of Maryland, 1987) is an analyst at the Ayn Rand Center for Individual Rights in Washington, D.C., focusing on legal issues. His op-eds have appeared in The Wall Street Journal and dozens of other publications, and he frequently provides commentary to various media outlets. A former law school instructor, he practiced civil litigation in Baltimore for twenty years. His book, The Enemies of Christopher Columbus, is a critique of multiculturalism. He also contributes regularly to Voices for Reason.

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