Every year when December rolls around it is time to teach the Lochner decision in my Constitutional Law class. This is inevitably the last major case I teach before the Christmas break, and it probably the case I enjoy teaching the most. The facts as presented are wonderful, and the fact that the sound reasoning of the Supreme Court is so passionately attacked today makes it great for classroom discussion.
Every year a different aspect of the case stands out, largely depending on what I happen to be reading in the months before I teach. This time, I am struck by how very difficult it is to sustain Oliver Wendell Holmes’ theory supporting his dissent. It seems to come across as a view that every statute should be upheld, unless Holmes’ whim suggests otherwise.
Holmes’ pragmatism suggests that law should remain steady out of deference to the tradition that has developed through the centuries, yet change to adapt to new insights. This is a theory that can justify any result. If the judge’s desired result is the same as what judges have long held, that is because the common law has disclosed long-held fundamental principles. But if the judge’s whims are contrary to the historic view, the judge just needs to acknowledge the evolution of the common law since experience, not logic is the means of developing the law.
The highly individualized approach taken by Holmes violates the primary value of his legal positivism—it renders the work of judges unpredictable. For example, in Schenk v. US, Holmes spoke for a unanimous Court in holding that the Espionage Act was properly applied in upholding the conviction of an anti-war agitator. Several months later, Holmes was the lone dissenter in Abrams v. US, which was also addressed whether an anti-war agitator’s conviction under the Espionage Act was Constitutional. Holmes’ dissented, being the only justice not to apply the analysis that persuaded the rest of the court that the cases were materially indistinguishable. So much for predictability in the law.
The only distinction between Schenk and Abrams that justifies a different result is the effectiveness of the message due to its temporal proximity to harm. (Schenk is the shouting-fire-in-a-crowded-theater case.) While I think Holmes’ reasoning was sound, it was not predictable that he would develop that particular distinction as the critical factor in deciding the case. Ultimately, it was because Holmes alone determined that this distinction mattered at this time that he was the only one who flipped in less than six months. That is no more than a convoluted way to justify one’s own whim.
The problem for Holmes is that he believes so passionately in the natural law, and yet denies that he does so. Like so many embittered against Christianity, in part because of the horrors he experienced in the Civil War, he had an aversion to committed moralists, all while being a highly committed moralist himself.
Holmes’ dissent in Lochner demonstrates Holmes’ moral commitment:
I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us.
This is a natural law critique of the majority opinion. While the “traditions of our people” approach may sound like it diminished the moral foundation of his opinion, there is no reason to defer to those who have gone before unless there is a transcendent value in those traditions. That value is either based on a moral framework, or the whims of a judge. Thus, a protestor can protest in defiance of a prohibitory statute, but a baker can’t work more than ten hours—no matter how desirous—in defiance of another statute.
This may work most of the time. The moral law and the Holmes’ whim probably line up more often than not, given the intelligence, experience and decency of Holmes. But when it falls apart, it does so grandly. Thus, in Buck v. Bell, one of the reasons why the Holmes is persuaded that sterilizing a mentally ill patient who has committed no crime is a good thing for the state to do, is that it will help free up space for more mental patients. Here is where moralizing helps.
What stood out to me more than anything with this year’s review of Lochner is how much Holmes is guilty of the formalism of which he complained in “The Common Law.” Holmes is obtuse in his refusal to think of the law which prohibits a willing employee to work more than ten hours is based on anything other than a health issue, just because the authors of the statute said so. Holmes justifies the law on the grounds that “A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work.” That is, if one can find a justification that aligns with the stated purpose, that is sufficient in this instance. Even more, if it opens the door for regulation of hours, all the better. This is worse than formalism. It is formalism with an agenda. While Holmes mocks the social Darwinism of the majority, he subtly discloses that his views on labor policy are just as agenda-driven.
The truth behind the Lochner facts were that powerful union forces sought to force out of business ethnic minorities who refused to unionize. It was economic bullying through calling in the power of the majority. Health had nothing to do with it, and the protection of laborers was not the motive for Holmes’ defense of an economic policy that abandoned protection of the disenfranchised. By ignoring this highly visible dynamic behind the manipulation of the politically weak, Holmes was a formalist of the highest order.