Embracing originalism is not the only response that progressives might make to conservative nonoriginalism, but there are reasons to think they might.
Effective story-telling is ultimately an exercise of power. When historical accounts take on the authority of received wisdom they frame the reality we experience, offering simplified narratives of our inheritance and narrowed perspectives on our current range of choices. Powerful narratives have clear heroes, villains, victims and that help us see ourselves as part of a clear historical trajectory and they offer equally clear guidance about what direction we should choose. The more stock are the characters in our history the more politically powerful is the story. Those historical characters become part of a morality play. As contemporary inhabitants of this play, people must seek to avoid being attached to certain characters or risk fundamental misunderstanding along with political, social, and cultural irrelevance. Because all such powerful historical narratives are simplistic and produce stock characters, they necessarily determine the limits of political and cultural life in our time. The more distinct are the lines of development (causal relationships that lead to good or evil outcomes) the more effectively we can act on what we “know” about our past. In short, the past as constructed by the story-tellers limits how we can speak and act relative to social and political power.
Great revisionist historians come along frequently to challenge some part of the story, to rehabilitate a villain or to bring low a hero. They claim to find deeper currents that drive the flow of history or they re-prioritize events, motives, or facts in order to expose a misunderstanding or a competing perspective within the story. Sometimes those revisionists are motivated by more than careerism and by something other than devotion to truth-telling—sometimes they want to redefine the narrative in order to redirect the course of contemporary politics. And when they are successful we find ourselves in a different story that commands different attitudes and views, that requires we act in accordance with the logic of a new morality play.
And yet, the story-tellers are, alas, inside the story. Large parts of the story become so accepted that however radical or reactionary is the revisionist, she nonetheless operates with historical assumptions (simple claims to historical truth) that she either does not see as assumptions or hasn’t the ability to examine them carefully. Fortunately, there is a different kind of historical revisionist who doesn’t seek to overturn one simple narrative for another equally simple narrative, but whose task is much more modest and much more empowering.
David Bernstein revisionist history of the Lochner decision and its uses in legal thought complicates a story, exposing not only that the governing historical framework distorts fundamentally the subject but that a broader frame opens up a much larger sphere of action and choice. In his conclusion, Bernstein wrote that “alert readers will have noticed that I have titled this book Rehabilitating Lochner—as in improving Lochner’s reputation—not Defending Lochner or Restoring Lochner.” (125) The Lochner decision has been maligned based on distortions, lies, and misunderstandings (by those who have largely controlled the writing of this story) and the author wants to set the record straight as well as explain the importance of this decision that scholars across the ideological spectrum have missed because of the erroneous history. Clearly Bernstein’s goals are a bit grander than that as he wants to elevate a set of libertarian views in the process and a careful reader notes places where his choices of labels or characterizations suggest this agenda. Though I’m no libertarian, I find that the deeper ideological currents pushing this project give it a vitality that it might otherwise lack and in some cases it gives an edge to his writing without ever damaging his historical claims.
The received story about the Lochner decision, at least as told by Bernstein, is a product of Progressive characterizations that sprang from their hostility to a presumed right to liberty of contract. When the court struck down a New York law that limited the number of hours a baker could work (no more than 10 hours a day and 60 hours a week) it did so on the grounds that there is an implicit right to an individual’s liberty of contract in the Constitution and the Due Process section of the Fourteenth Amendment allows the Court to strike down a state law that violates implicit, or non-enumerated, rights.
Self-designated “Progressives” of the early decades of the twentieth century claimed that this decision represented the power interests of the day—the Herbert Spencer-inspired corporate interests who wanted to establish their economic rights (which, presumably, supported their economic interests). The Court’s decision not only created a new, extra-constitutional, right that buttressed the power of the exploiting class but it undermined popular sovereignty—undermined fundamentally the democratic process. This narrative became the foundation for the way that Lochner would be remembered and used over the next century and would govern, to a large degree, how both liberal and conservative jurists understood the case and its significance. As a result, the Lochner decision became a nearly universally accepted symbol of both economic power controlling the courts and an activist court bound by ideology rather than the Constitution or precedent. This narrative distorted the history and thereby produced distortions in the constitutional reasoning of jurists across the political spectrum.
Bernstein’s account of how this narrative developed over time, in relation to the changing political and ideological orientation of the nation, is amazingly rich given the brevity of the book (129 pages), but I wanted more of this. On one point Bernstein’s analysis is not only impressive but suggestive of much deeper issues about historical understanding. While the early Progressives established the foundation for later historical understandings of Lochner, contemporary Progressives are politically and philosophically not the same as their ideological great-grandfathers. Liberals, Conservatives, and Progressives are equally prone to forget these differences (even if they can point to important continuities) and they read back to early critics of the decision contemporary labels and categories. Misunderstandings that necessarily attend simplified histories that liberally employ broad political labels distort the historical event under investigation while creating a sense of historical evolution that is straight and easily explicable. But if historical development is much more crooked and if the range of ideas and acceptable beliefs have changed significantly, then a recognition of the complexity of the historical process requires of us much greater labor but it also leads to a much richer heritage and a wider array of choices. A crooked history gives us more ambiguity while expanding the resources for intellectual ferment.
Meanwhile Bernstein’s defense or rehabilitation of Lochner begins with his argument that the early Progressives fundamentally mischaracterized the decision. Rather than being an activist court that was unbound by the Constitution or by precedent, Bernstein tells of a court that fit comfortably in the historical development of American jurisprudence. The decision, in other words, was much more conventional than the Progressives acknowledged.
The Lochner decision rested on a Natural Rights argument in which it was presumed that humans have rights that are not subject to political modification—or more precisely there are rights held by individuals that no government may rightfully trammel. I am not sure if Bernstein’s account of the Natural Rights thinking in American courts before Lochner is defensible and I would like very much for his historical claims in this section to be subjected to analysis by a legal historian, but he clearly has identified a stream of Constitutional thinking that was alive and relevant at the time. Moreover, Bernstein notes that the courts had not declared natural rights in abstraction from experience. As he tells the story, Constitutional defense of individual natural rights—the ones not enumerated in the Constitution itself—emerges out of the Anglo-American tradition. In other words, however much one might make an abstract claim for a natural right, the American courts only invoked them as natural rights after they had become visible in the historical process.
Unfortunately, Bernstein does not explore deeply this relationship between appeals to natural rights (ahistorical) and the development of social understanding or acknowledgement of these rights through long experience, through a historical vetting process, as it were. I am not certain whether Bernstein’s description of the constitutional norms of the period before Lochner suggests his approval or not, but it opens up a fascinating historical / philosophical vein. Perhaps the American courts developed what we might call a Burkean Natural Right tradition that stands in some tension with contemporary arguments on the Right for abstract and ahistorical Natural Rights. Insofar as the courts chose to historicize Natural Rights in this way (the emergence of natural rights through long experience) they may have functioned to preserve, better than other institutions, the American continuity with Anglo traditionalism and thereby provide a much more sophisticated way of talking about America and Natural Rights.
The shifting contours of political and ideological positions described in this book raise a number of important questions about the status of key philosophical and Constitutional claims. How should we think about un-enumerated rights and the use of the Fourteenth Amendment to protect these rights? Bernstein brilliantly teases out the way that the claim to such rights is a necessary part of the story leading to the right to privacy as found in Griswold. If one can make the claim that the state cannot interfere with the implied natural right of liberty of contract then what prevents the court from declaring that the power of the state cannot interfere with a right of privacy? The confusions are sometimes delicious and send me back to very basic philosophical questions about authority in a democracy.
I will end by raising one such question that, so far as I can tell, appears to be an unavoidable point of contention in our political process. To put it simply, how far do we take popular sovereignty? First generation Progressives put a great deal of emphasis on the rights of the people, through their legislatures, to change arrangements as they see fit. For them the people of a state appeared to be potent forces for systemic change of the sort that is unencumbered by the dead hand of the past. The “people,” when acting in their capacity as sovereign, can overcome powerful and entrenched interests and pass laws that are in the interest of the public. But the devotion to popular sovereignty wanes easily when the people do not support the kind of change that Progressives want. Today, I suspect, one is more likely to find a defense of a fairly simple conception of popular sovereignty among self-proclaimed Conservatives than Progressives. But underneath the shifting fortunes of the idea of popular sovereignty is an unanswerable question in the American context—if all power should be limited, by what means should the majority be checked, by whose lights, and by what mechanism?
Bernstein has rehabilitated Lochner for me in one important respect—he has placed this decision in a rich but not univocal tradition of natural right as shaped, revealed and understood historically. Lochner, no matter how I might think about the merits of the specific conclusion on Constitutional grounds, is a very important part of our national conversation, our historically-rooted conversation, about the nature and limits of power especially as exercised by a government. Bernstein has given me a crooked path of history that affords a most rewarding amble.