In this JoshCast, I chat with David Bernstein, author of Rehabilitating Lochner. David’s new book provides a revisionist history to one of the most infamous cases in Supreme Court history, Lochner v. New York. During this lengthy discussion we address a host of issues, including:
- Why is Lochner so infamous?
- Was Lochner a decision that helped poor people? (David says yes!)
- Was Lochner an originalist opinion? David says yes, in light of originalism as it existed in the early 20th century.
- The “Lochner Era” was largely an anachronistic term, and the Court was never a institution that struck down all sorts of social regulations.
- Lochner was not based on Social Darwinism. The only Social Darwinist on the Court was Holmes, author of the famous dissent.
I do push back, and challenge David by asking him where we would be today if Lochner had not been repudiated. Would the modern regulatory and welfare state exist as it does today? What would have become of the New Deal? I also question whether he is simply re-fighting 1937. Finally, I inquire as to potential charges of “law office” history written by attorneys, and not historians.
I conclude by asking about the future of liberty of contract, and what the fate of this ill-fated jurisprudence may hold.
I should note that I took David for ConLaw 2, and he taught me Lochner, so perhaps I am somewhat biased. I should also note that David gave me a B+ in ConLaw 2 (chutzpah in hindsight, I know). That, alone, should be grounds for a negative review, yet I still liked the book.
If you think you know what Lochner is about, and you haven’t read this book, or other works of David, you are probably wrong, and you should read this book. If you wish to have a better sense of why this case is so unpopular, read this book. If you want to be informed on any debate on constitutional law and the role of the state and the courts, read this book. It’s a short, quick, and interesting read. I’d recommend it.
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