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

Oliver Wendell Holmes’s Lochner dissent is perhaps the most famous dissent in all of constitutional law. Some people regard it as great, either because it criticizes the majority decision in Lochner or because it defends a certain restraint-oriented jurisprudence. Others regard is as awful, sometimes for the same reasons. It is only two paragraphs in substance, and it is chock full of important claims. I thought I would discuss its passages in a couple of blog posts.

Lochner, of course, was the 1905 Supreme Court case that held unconstitutional a state law that set the maximum hours for bakers. The majority saw the law as a restriction on the liberty of workers and employers to set the workers’ hours. The dominant view of the today’s progressives is that it involved a result oriented court’s attempt to block progressive legislation. Some scholarship argues that the law was actually rent seeking legislation that sought protection for union workers at the expense of nonunion workers. Others continue to see it as public-interested legislation.

Holmes’s dissent is short. That provides some of its rhetorical power. But rhetoric differs from substance. Many people take these rhetorical claims and run with them. Thus, in these two posts, much of my criticism of Holmes is based on the unsupported nature of his claims. It is true that one should not expect such support in a two paragraph dissent. But one should not write a two paragraph dissent if one’s claims require significant support. Nor should such a dissent become one of the most prized ones in constitutional law.

(Holmes’s dissent is in italics.  My commentary is in normal print.) 

This case is decided upon an economic theory which a large part of the country does not entertain.

To my mind, this claim is essentially irrelevant from an originalist perspective. What the current country thinks does not decide the original meaning.

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, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.

I agree with this claim. Literally, the judges agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is not clear that many of today’s non-originalists agree with Holmes’s claim. In my view, many non-originalists seem to believe that their disagreement with the arguments for a law is very much relevant to the enterprise of judging the law’s constitutionality.

It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. 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, which has been a shibboleth for some well known writers, 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.

Here, Holmes relies upon precedent. And he is right that the Court had held constitutional many state laws that interfered with liberty. Still, I have two concerns about his argument. First, while I believe that precedent has a role to play in constitutional law, that does not mean it always trumps the original meaning. So precedent is merely part of the story. Second, and more importantly, Holmes has not shown that these precedents are inconsistent with the majority result in Lochner. While the other dissent in Lochner by Justice Harlan attempted to argue that the majority was mistaken under existing doctrine, Holmes did not. It is quite problematic that he here relies upon precedent, without taking the doctrines of those precedents seriously. In fact, there is a reasonable argument that the Lochner majority’s opinion was consistent with precedent.

The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.

This is one of the most famous lines in the dissent. But it is largely beside the point. The Lochner majority accepted the constitutionality of many laws that would have been condemned by Herbert Spencer’s Social Statics. While one might claim that Holmes is merely exaggerating for effect, that still leaves his argument problematic. The question is what the 14th Amendment does enact.  And Holmes has done absolutely nothing – except make sheer assertions – to establish its meaning.

In my next post, I discuss the second half of Holmes’s dissent.