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07/27/2018

A Commentary on Holmes’s Lochner Dissent: Part II
Mike Rappaport

In the first part of this post, I started my commentary on Holmes’s Lochner dissent. Here I continue it. As before, Holmes's dissent is in italics, my commentary is in normal print. 

The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. [Holmes here lists various other decisions.] Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution 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.

Once again, Holmes is engaged in unsupported assertion. Some constitutions may be intended to embody a particular economic theory – especially if there was a dominant one at the time of the Framing. One must show that the constitution was not intended to do that. Otherwise, Holmes is just telling us what his views about the constitution are, and he has already suggested that the judges views on such matters are not relevant.

[A constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

This is another famous line from Holmes dissent. I agree with Holmes that a good constitution is made for people of fundamentally differing views. In a pluralist country, we should expect that people will differ on many matters and a good constitution will take that into account. But from this point of agreement, I disagree with the implications that Holmes draws. First, that a good constitution is made for people of differing views does not imply that the Supreme Court should adopt a judicial restraint view, as articulated by Holmes below. Many good constitutional provisions allow for pluralism, such as federalism, separation of powers and many individual rights provisions, and enforcing them would promote a good constitutional order for a pluralist country. Judicial restraint may undermine that good constitution. Second, Holmes has not shown that the U.S. Constitution is a constitution of this type. I do agree that the U.S. Constitution is made for people of fundamentally differing views, but not in the way that Holmes thinks.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. 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. 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 installment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

The key point here is Holmes's claim that “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.” Once again, this judicial restraint claim is unsupported. There are very good reasons to believe that the people who enacted the 14th Amendment would not have allowed states to pass whatever laws they wanted unless no “rational and fair man necessarily would admit that the statute would infringe fundamental principle as understood by the traditions of our people.” After all, the 14th Amendment was passed in part to attack the black codes. More generally, in some ways the Fourteenth Amendment served to protect existing traditions. But in other ways, it sought to establish new principles in the law. And in yet others it appeared to select among the conflicting traditions of the country prior to the Civil War.

Holmes just ignores all of this, so that he can assert his unsupported claim about the Constitution.