Book Review

Lies My Law Professors Told Me:
The Lochner Court, Myth and Reality
by Michael J. Phillips (Praeger, 2001)

reviewed by Richard A. Forsten, Esquire

One of the more denigrating comments someone can make about a judicial opinion these days is that a court is "Lochnerizing" — that is, a court is unjustifiably substituting its own preferred values for those of a legislature or administrative body by striking down some law or regulation on the basis of due process. In law school we are taught, generally speaking, that the "nine old men" who made up the Supreme Court at the end of the nineteenth century and into the early twentieth century regularly struck down progressive legislation designed to aid society on the basis of "substantive due process" or "freedom of contract." We are told that in reality these justices were not upholding established constitutional values, but were, in fact, either knowingly or unknowingly, reading their own preferences and biases into the Constitution and using these biases to strike down legislation with which they disagreed. The most famous of these decisions was, of course, the Supreme Court's 1905 decision in Lochner v. New York, but the "myth" of Lochner is that there were some 200 of these decisions between the late 1890's and the 1930's, until the "switch in time that saved nine" finally put an end to Lochner and its progeny.

Professor Michael J. Phillips did something that no one seems to have done before. He went back and took a very close look at Lochner and numerous other cases. What he finds is a very different picture from that presented by the standard story. His book, The Lochner Court, Myth and Reality, is an overview of the Lochner case and other substantive due process cases from that period, and a review of the standard theories offered by many as to why "Lochnerizing" was so prevalent. His conclusions, as one might surmise from the title of the book, differ sharply from the standard accounts. Ultimately, he concludes that "Lochnerizing" occurred far less frequently than is presumed, and that a great many more statutes were upheld rather than struck down by the Court during this period. He also rejects many of the standard hypotheses as to why "Lochnerizing" occurred (i.e., the Court was pro-business, the Court was slavishly devoted to "freedom of contract" and didn't understand the unequal bargaining power then prevalent, etc.), and ultimately concludes that we ought to take the Court's majority in Lochner and similar cases at their word — that the Justices were protecting liberty and property from unreasonable government restraint or interference. Phillips writes:

Phillips begins his book with a quick overview of the statistics. Rather than 200 or so substantive due process cases during the Lochner era where statutes and regulations were struck down, Phillips concludes that there were only approximately 56 "core" substantive due process cases during the 40-year period, or maybe 110 cases if you include cases involving rates for regulated industries (railroads, etc.) and challenges to regulations adopted in connection with regulated industries. Thus, the number of cases is half what is supposed. Furthermore, of these, only fifteen actually involved freedom of contract or liberty of contract. Moreover, the number of unsuccessful challenges is rarely mentioned in discussions of Lochner, but perhaps equally important. For example, in employment cases, the Court struck down 12 statutes, but upheld some 43 statutes. Similarly, in cases involving the regulation of business, the Court struck down 12 statutes but upheld some 59 statutes. In other words, substantive due process challenges were much more likely to be unsuccessful than successful during the Lochner era.

Of course, one can still say, "so what?" After all, there were still some 56 or 110 cases where the Court did strike down statutes or regulations for the wrong reasons. Isn't that the point? Maybe, but maybe not. As already pointed out, of the 56 "core" substantive due process decisions, very few rest on freedom of contract grounds. Others involve taxation, takings, tort remedies, and otherwise "humdrum" subjects. Some involve occupational liberty and parental rights and no doubt are still applauded today. For example, in the cases of Meyer v. Nebraska and Pierce v. Society of Sisters, the Court affirmed and protected parents' substantive due process rights to control the upbringing and education of their children. In short, it is not quite so easy to pigeonhole Lochner-type decisions.

If the Lochner story indeed consists of hyperbole and myth, there are two questions which quickly come to mind: (1) why is the Lochner story so greatly exaggerated? and (2) what does a more careful and critical understanding of Lochner and its progeny tell us? Phillips only gives us a partial answer to these questions:

In other words, according to Phillips, progressives of the era and thereafter, who had complete and utter faith in the power of government, could simply not accept any attempt by the Court to rein in government regulation, even where, in some instances, some would argue that reining in was necessary. But what does a more balanced understanding of Lochner mean? Should the modern judiciary return to the Lochner era? Phillips does not suggest such a course, but he would no doubt be happy if the Court applied a stricter standard than rational basis review to many statutes and regulations. These concluding thoughts, though, are hardly convincing. While the conventional story of Lochner may be oversimplified, overstated and simply wrong, the case has come to stand for something more than the actual decision reached, and, as they said about the man who shot Liberty Valence, when the legend becomes fact, print the legend.

Return to April 2002 Table of Contents.