Is there any truth to Obama’s claim that the Supreme Court hasn’t invalidated any statutes that are “economic” and relate to “commerce” since Lochner v. New York, which was in 1905? Of course not. To name just a few examples a great deal more recent than 1905, the Court ruled unconstitutional provisions of the Sarbanes-Oxley Act that had permitted only “for cause” removal of members of the Public Company Accounting Oversight Board in 2010; the 1990 Mushroom Promotion, Research and Consumer Information Act in 2001 (this case was actually quite similar to Obamacare because the Court held unconstitutional provisions that required mushroom growers to contribute to mushroom promotion programs); provisions of the Patent and Plant Variety Remedy Clarification Act, the Trademark Remedy Clarification Act, and the Copyright Remedy Clarification Act in 1992; the Harbor Maintenance Tax Act in 1998; the Transfer Act which authorized the transfer of operating control of Washington National Airport and Dulles International Airport from the Department of Transportation to the Metropolitan Washington Airports Authority in 1991; and many, many more dating back to 1905.
I was thinking over how ironic it was that Obama went back to Lochner for his expression of outrage. First of all, this case concerned a state law putting a maximum on the number of hours that bakers could require their workers to work. The Court overturned the law saying it violated the "right to contract" that an employee and employer could make. Thus, it was a state law that was struck down, not anything that concerned the Interstate Commerce Clause.
The reason that the case is notorious is because observers decried the conservative Court's creation of a previously undiscovered "freedom of contract." This was the Court practicing the sort of substantive due process that liberals love today. Except when they did it from the conservative side, it is held up as an unholy example of judicial activism. The irony is that the law was originally passed at the behest of large baking companies that wanted to harm the smaller bakeries that only could afford one or two employees and thus needed them to work longer hours. You know - the sort of bakeries that immigrants of the era were establishing and drawing business away from the big bakers. So the law was a bow to special interests to help them limit competition.
Overturning that law is regarded by liberals as a shameful precedent. But isn't that how liberals regard the laws? They are happy to find previously undiscovered rights within the Constitution and use the Fourteenth Amendment to expand the definition of liberty. They crafted this health care law which yielded to big interests who were brought on board with special privileges or bought votes of Democrats with special provisions. So of course they'd deride any Court decision that struck down such a law. And then they'd be happy to turn around and find all sorts of rights emanating from penumbras of the Bill of Rights. Not the right to contract, of course, but rights that uphold their chosen policy positions.
David Bernstein who has written a book, Rehabilitating Lochner, about the case and the liberal responses to it delineates this irony.
For a variety of reasons, including mere happenstance, Lochner eventually became the shorthand for the pre-New Deal Court's purported malfeasance. For decades, liberal jurists have argued that the revival or development of any constitutional doctrine that limits economic regulation would herald a return to the so-called "Lochner era." With conservatives in control of the Court for the last two decades, liberal justices have attacked their colleagues for aping Lochner in cases that invoked the First Amendment, the Commerce Clause, the Takings Clause, the Tenth Amendment, and the Eleventh Amendment to limit the government's regulatory authority.
Ironically, meanwhile, the liberal justices themselves have expanded the scope of the Due Process Clause — the clause actually relied upon in Lochner — on behalf of the Progressive agenda. For that very reason, conservatives accuse their liberal adversaries of being the true heirs to Lochner.
Apparently, when Obama taught a course on the Constitution at the University of Chicago, he taught the section on the Fourteenth Amendment. One of his former students, Thom Lambert tells us what was covered in the class.
resident Obama taught “Con Law III” at Chicago. Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student). Con Law III covers the Fourteenth Amendment. (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.) Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks.The President's ignorance is also an indictment of the education he apparently received at Harvard Law. This goes back to what Jonathan Adler wrote last week about why so many liberal commentators underestimated the case against the individual mandate.
Another factor that contributes to this problem is the relative lack of ideological diversity within legal academia. The current Supreme Court has a right-leaning majority, but legal academia leans decidedly to the left. On many faculties their are few, if any, professors with any particular appreciation or understanding (let alone sympathy) for the jurisprudential views of a majority of the current justices. This means that when ideas are floated in the faculty lounge, they may get a far more sympathetic hearing than they would ever receive in court. So, for instance, it’s easy for Jack Balkin to dismiss an argument premised on Bailey v. Drexel Furniture because it’s a Lochner-era decision, even though Bailey remains good law. A practicing lawyer would have been less likely to make this mistake. Indeed, the SG actually cited Bailey approvingly this week in his argument before the Court.The law schools share the same problem as the rest of the universities and of the media. While conservatives are constantly surrounded by liberal arguments, it's quite easy for liberals to never hear the conservative argument expounded. This eventually works to conservatives' advantage because they learn to know their opponents, while liberals too often believe their opponents are either stupid or racist and so whatever they say can be dismissed contemptuously.
In teaching our students to be effective lawyers it is important that we teach them how to understand opposing legal arguments on their own terms. Effective appellate attorneys are conscious of this problem and devote substantial energy trying to get inside the minds of their opponents. As I’ve heard Paul Clement (among others) explain, you can’t effectively advocate your own position until you truly understand the other side. This can be difficult to do, particularly when we have strong feelings about a subject. Someone who believes the PPACA is a long-overdue step toward remedying the profound injustices of the American health care system is not predisposed to embrace arguments that the PPACA is unconstitutional. And if those same academics both lack colleagues with opposing points of view and have no particular professional interest in making sure they fairly consider the other side, it is easy for them to overlook the strength of opposing arguments and reduce them to caricatures. Ridiculing the need for a limiting principle or other anti-mandate arguments may get approving nods in the faculty lounge, but, as we saw this week, it won’t receive an equally warm welcome in court.