I appreciate Professor David Bernstein’s thoughtful response to my article. I read his smart book, Rehabilitating Lochner, while working on the piece, and it was a valuable addition to my pantheon of revisionist Lochner scholarship. Like David (if I may), I’m interested in the jurisprudence of that era for its own sake, and I always enjoy teaching it against the still-current myth of Lochner: that Oliver Wendell Holmes was right in his famous dissenting claim that the decision rested “upon an economic theory” of laissez-faire. Reading, say, John Marshall Harlan’s dissent in Lochner, which proceeds to a different conclusion on the majority’s premises, students see that there was a real jurisprudence here, not just ideology. When I have them read cases like Buchanan v. Warley (1917), which struck down a residential-segregation statute on the grounds of the white seller’s economic liberty, they see that freedom-of-contract principles espoused by the Lochner-era Court protect a genuine freedom. I see a lot of David’s book as in the same spirit, and so I read it sympathetically and with pleasure.
So, respectfully, I don’t think I buy into the various simplifying myths of Lochner, in person or in the piece. But David’s right, of course, that in deciding to anchor my criticism of some contemporary doctrines in the Lochner comparison, I’m reinforcing that view of Lochner, or at least trading on it. So, what’s up with that?
Basically, this: While I embrace the claim that Lochner jurisprudence, so-called, was not crude laissez-faire policy-making, I also believe that there was a mutually reinforcing relationship between the prominence of laissez-faire thinking and the shape the Court gave to substantive due process (and, in important respects, to the Commerce Clause). So while I think the traditional story did harm by taking a reductive view of legal reasoning, it was plausible in part because it responded to a real relation between law and the larger field of ideas. We see this in many places, from Justice William R. Day’s 1918 assertion in Hammer v. Dagenhart that the division between federal and state power was essential to preserving liberty of commerce—suggesting an overriding aim that infused constitutional design, quite apart from the specifics of Fourteenth Amendment “liberty of contract”—to the arguments of plaintiffs in anti-regulatory constitutional cases, which routinely construed Supreme Court precedents as establishing precisely the categorical laissez-faire rules that the Court never in fact embraced. One might explain virtually any passage on independent grounds, but in sum laissez-faire thinking infused strands of elite and popular thinking and lent plausibility to such claims, and to the Court’s doctrine as well.
The same basic claim holds for the recent cases that I discuss in my essay and our neoclassical update of laissez-faire thinking. If I may put it this way, from an internalist legal perspective, the traditional Lochner story was way too crude. From a perspective with stronger externalist notes, it captures important features of that time, which our time shares. Today as then, laissez-faire ideas in the larger intellectual and political culture contribute to the development of anti-regulatory lines of jurisprudence.
David says (to simplify) that the First Amendment cases are about mistrusting government, not idealizing markets. I think this is an important point: I mean to argue in the piece that these are two sides of the same coin, with one emphasized more in some cases, the other in others. David’s comments, and those of a few others, help me to see that I should spell this out more clearly.
David points to the scholarship observing that “more democratic” government (I use the quotes because I’m simplifying, not because it’s his phrase or his idea) often doesn’t, as I would like to put it, legislate to limit private economic power. I don’t mean anything in my argument to depend on whether “republican” democracy is in fact more redistributive than what we might call market democracy. I do mean to defend the legitimacy of such interventions in principle. Still, I do appreciate being brought back to the empirical case for mistrust of democracy and regulation as we know them. As an avowed liberal-conservative-socialist-anarchist (I suspect David and I share between 1 and 2.5 of 4 among those labels), I never object to this kind of cold water. Even so, I believe that political intervention into economic inequality is legitimate in principle and that the tendency to restrict it under the Constitution reflects the ascendancy of anti-government laissez-faire ideas, now as it did a century ago.