Overruled

by Damon Root

  To read Holmes’s wartime correspondence today is to receive a guided tour through these and other depths of that terrible inferno. “Swollen bodies already fly blown and decaying,”8 he reported in one letter to his family, “Lowell is probably dead bowels cut,”9 he noted in another. “It’s odd how indifferent one gets to the sight of death,” he told his mother in December 1862, “perhaps, because one gets aristocratic and don’t value much a common life.”10

  The Civil War had a profound impact on the young man who would later become one of America’s most famous and influential jurists, and it was not a pretty one. As it does for many young soldiers, the experience of combat obliterated Holmes’s youthful idealism. “I am not the same man,”11 he informed his parents in May 1864. But the disillusion went far deeper than that. As the historian Louis Menand memorably put it, “The war did more than make him lose those beliefs. It made him lose his belief in beliefs.”12 Gone forever was the young abolitionist who left Harvard two months before graduation in order to enlist on behalf of a grand cause. In his place was a man who scorned all mention of lofty principle. “I don’t talk much of rights,” Holmes would declare, “as I see no meaning in the rights of man except what the crowd will fight for.”13

  In a sense, the Civil War transformed Oliver Wendell Holmes into a democrat of the very purest sort. The majority must get its way, he came to believe, regardless of whether or not minorities got trampled in the process. “It is no sufficient condemnation of legislation that it favors one class at the expense of another,” he argued in the American Law Review, for all laws are “necessarily . . . a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else.”14 He made the same majoritarian point with even greater force in a letter to Harvard professor and future Supreme Court Justice Felix Frankfurter. “A law should be called good if it reflects the will of the dominant forces of the community,” Holmes maintained, “even if it will take us to hell.”15 The Civil War may not have taught Holmes that might makes right, but it did teach him that might was the one thing that truly mattered, both on and off the battlefield.

  That stark worldview permeated his legal opinions, leading Holmes to embrace an extreme form of judicial restraint that required judges to bow down routinely to the wishes of lawmakers and elected officials. Sometimes that deference to government authority was oblique, as when Holmes led the Supreme Court in brushing away the First Amendment in order to uphold the 1918 conviction of left-wing activist Eugene Debs, arrested under the Espionage Act of 1917, a notorious piece of legislation that made it a federal offense to interfere with American involvement in World War I. What was Debs’s crime? He gave an antiwar speech to a crowd of socialists out for an afternoon picnic. Such was Holmes’s commitment to deference that he allowed so dubious a prosecution to stand.

  Other times Holmes’s submission to state power was unmistakable. “We have seen more than once that the public welfare may call upon the best citizens for their lives,” Holmes observed in 1927, alluding to his own Civil War experience. “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices.”16

  So wrote Justice Holmes in the notorious case of Buck v. Bell, where the “lesser sacrifice” in question was the state of Virginia’s desire to forcibly sterilize seventeen-year-old Carrie Buck, “a feeble minded white woman,” as Holmes described her, “the daughter of a feeble minded mother . . . and the mother of an illegitimate feeble minded child.”17 Raped and impregnated by the nephew of her foster mother, Buck had been committed to a state institution for the “socially inadequate” by her foster parents. After a cursory review of the alleged facts of the case, Holmes deferred to the questionable judgment of state officials on every count and ruled in favor of the eugenics law: “Three generations of imbeciles are enough.”18

  If Justice Stephen Field was the Supreme Court’s first great champion of judicial action in the cause of limited government and individual rights, then Justice Oliver Wendell Holmes was his nemesis, the Court’s first great advocate of judicial deference to lawmakers and to the will of the majority. Whereas Field urged the courts to “examine into the real character”19 of the laws that came before them and to strike down those democratically enacted statutes that violated fundamental liberties or exceeded the reach of legitimate government powers, Holmes preached a very different sort of gospel, telling his fellow judges to respect “the right of a majority to embody their opinions in law,”20 even when such an act of restraint would mean sending the whole country straight to the devil.

  It’s hard to imagine two judicial philosophies with a greater gulf between them. And although Field’s retirement in 1897 prevented the two men from clashing face-to-face on the Supreme Court, their dueling approaches would still collide repeatedly throughout Holmes’s long tenure on the bench, which lasted from 1902 until 1932. During those three decades, as Field’s libertarian vision gradually started winning important cases, Holmes registered his objections in a series of increasingly disgruntled dissents. These great legal battles, waged over issues ranging from economic regulation to civil liberties to racial equality, would shape the course of American law in the twentieth century, with repercussions still felt today.

  Liberty of Contract

  The opening shots rang out in 1905 in the landmark case of Lochner v. New York. The Lochner story had begun ten years earlier with the passage of a sweeping reform bill by the New York State Legislature targeting sanitary and working conditions in the Empire State’s baking industry. The Bakeshop Act, as the 1895 law came to be known, was a thoroughgoing piece of work, covering everything from ventilation and drainage to the terms under which state inspectors would give or withhold their stamps of approval. In addition, the law also placed strict new limits on the relationship between employers and employees. Henceforth, no bakery workers were permitted to work more than ten hours per day or sixty hours per week, including overtime, unless those bakers happened to own the business or be related to the owner.

  That last part was a tip-off that the maximum hours law was designed with something other than just health and safety concerns in mind. After all, if the well-being of workers or consumers was really at stake, why offer any sort of exemption from the saving regulation? In his recent history of the case,21 the legal scholar David Bernstein pointed to a more plausible explanation. The origins of the ten-hour law, Bernstein argued, are found in an economic conflict between unionized New York bakers, who labored in large shops and lobbied intensely for the working hours limit, and their non-unionized, mostly immigrant competitors, who tended to work longer hours in smaller old-fashioned bakeries. As the Baker’s Journal, the weekly publication of the bakers’ union, put it in an editorial, “cheap labor . . . from foreign shores”22 threatened the livelihood of all card-carrying members. The imposition of a ten-hour day, therefore, “would not only aid those unionized bakeries who had not successfully demanded that their hours be reduced,” Bernstein noted, “but would also drive out of business many old-fashioned bakeries that depended on flexible labor schedules.”23 For their part, state officials seemed to share the union’s hostility to immigrant workers. “It is almost impossible to secure or keep in proper cleanly condition the Jewish and Italian bakeshops,” one state inspector reported in 1898. “Cleanliness and tidiness are entirely foreign to these people.”24 Meanwhile, the state’s large corporate bakeries, as Bernstein’s research discovered, mostly sided with the union and tacitly supported the Bakeshop Act. That counterintuitive position makes sense when you consider that the new regulations helped to undermine their competition as well.

  Among that competition was a German immigrant named Joseph Lochner, who operated a small family-run bakery in Utica, New York, with his wife and a handful of employees. As Lochner saw it, the maximum hours provision went too far and violated both his rights and the rights of his w
orkers to settle on the basic terms of employment. With the backing of the New York Association of Master Bakers, a trade group comprised of small-scale proprietors, Lochner brought the legal challenge that eventually landed him before the U.S. Supreme Court and added his name to the annals of constitutional history.

  Heading into the courtroom in 1905, his odds of success appeared mixed at best. Although the Supreme Court had said that the Fourteenth Amendment protected the right to make labor contracts free from unnecessary government interference in the 1897 case of Allgeyer v. Louisiana, where Justice Field’s “right of free labor”25 was enshrined as the right to liberty of contract, the Court had also recently upheld several reform-minded state laws, including a Tennessee requirement that coal miners be paid in cash, not in company script, and a Utah statute limiting mine workers to an eight-hour day. That second case, Holden v. Hardy, seemed particularly relevant to the Lochner dispute, and New York officials readily cited it as a legal precedent when urging the Supreme Court to uphold their own state’s working-hours limit.

  But a five-justice majority of the Supreme Court took a different view. The Bakeshop Act’s ten-hour provision “is not, within any fair meaning of the term, a health law,”26 declared Justice Rufus Peckham for the majority. It was an illegitimate interference with the right to liberty of contract under the Fourteenth Amendment, and therefore must be struck down. Following the same template as Field’s Slaughter-House dissent, Peckham began with a discussion of the proper reach of government power. There is no question that the states possess the lawful authority “to prevent the individual from making certain kinds of contracts,”27 he observed. As an example, Peckham pointed to the law sustained in Holden. In that case, the dangerous and extreme conditions present in an underground coal mine justified the state’s placing certain limits on the hours of work. Similarly, Peckham continued, the Bakeshop Act’s many provisions dealing directly with public health and workplace safety, such as “inspection of the premises,” “furnishing proper washrooms and waterclosets,” “providing proper drainage, plumbing, and painting,” “height of the ceiling,” and “cementing or tiling of floors,”28 were all perfectly legitimate exercises of the state’s police powers.

  But Peckham drew the line at the ten-hour provision. “A law like the one before us involves neither the safety, the morals, nor the welfare, of the public,” he argued. “Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week.”29 Furthermore, unlike the mine workers in the Holden case, whose risky jobs justified additional state action, “the trade of a baker has never been regarded as an unhealthy one,”30 meaning New York bakers already enjoyed sufficient protections thanks to the other regulations put in place by the Bakeshop Act. Given the facts of the case, Peckham concluded, the freedom of employer and employee “to contract with each other in relation to their employment, and in defining same, cannot be prohibited or interfered with, without violating the Federal Constitution.”31

  “The Natural Outcome of a Dominant Opinion”

  Writing in dissent, Justice Oliver Wendell Holmes rejected every aspect of Peckham’s ruling. Sixty-four years old at the time, and a twenty-year veteran of the Supreme Judicial Court of Massachusetts, where he had served a stint as chief justice, Holmes was by then a well-known advocate of judicial restraint. His Lochner dissent both solidified and enhanced that reputation. Just over 600 words long, the dissent is packed with memorable phrases and has been cited countless times by a seemingly endless parade of judges, lawyers, academics, and journalists seeking to buttress their own arguments in favor of a deferential Court. “This case is decided upon an economic theory which a large part of the country does not entertain,” Holmes proclaimed at the outset. And that questionable theory—“the liberty of the citizen to do as he likes”—had no business replacing the majority’s right “to embody their opinions in law.” As Holmes quipped, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”32

  He was right about that, though not quite in the way he meant. Born in 1820, Herbert Spencer was a polymath English philosopher whose writings dealt with everything from politics to sociology to evolution. Social Statics (1851) was his second book and first big hit. In it, Spencer laid out what he called his “Law of Equal Freedom,” which he considered to be the first principle necessary to establish a “correct system of equity.” It held: “Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.”33 That sweeping credo would not be out of place in the most radical of free-market manifestos, and indeed, Spencer was regarded as the late nineteenth century’s leading proponent of full-throated laissez-faire. That’s why Holmes cast him as the villain in his Lochner dissent. He wanted to paint the majority as a bunch of wild-eyed libertarians hell-bent on subverting democracy.

  But as Peckham’s majority opinion had made clear, judicial protection for the right to liberty of contract required nothing so revolutionary as Spencer’s Law of Equal Freedom. Consider again the eight-hour law for miners upheld in Holden and reaffirmed in Lochner (even as the Lochner Court rejected the ten-hour law for bakers). There is no way to reconcile that outcome with the basic premise of Social Statics. What business is it of the state, Spencer might have asked (he died in 1903), if a miner wanted to risk his life by working longer hours for extra money? The public was placed in no danger by his actions, so why not let the worker put himself in harm’s way for a bigger payday? The Lochner majority, on the other hand, described the law as a valid safety measure enacted on behalf of vulnerable employees. In short, the Lochner ruling did not enact Mr. Herbert Spencer’s Social Statics.

  But the Court’s libertarian tendencies were not the only thing bothering Holmes about the outcome of the case. “I think that the word ‘liberty,’ in the Fourteenth Amendment, is perverted,” he declared, “when it is held to prevent the natural outcome of a dominant opinion.” Put differently, the people of New York had a broad power to pass whatever laws they deemed fit, and the Supreme Court had no license to nose around in their affairs. The Constitution, Holmes claimed, “is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or laissez-faire.”34 As he saw it, the Lochner majority had committed a grievous error not only by striking down a labor law, but by reading the Fourteenth Amendment as a tool for supervising state affairs in the first place. And as it happened, Holmes was not the only prominent public figure to think so.

  Progressive Democracy

  Historians generally date the Progressive era as beginning sometime in the early 1890s and concluding sometime in the early 1920s. It takes its name from the assorted politicians, lawyers, and reformers who advocated, seized, and wielded a vast new array of regulatory powers in those days, and it is characterized by their broad view that government should become the primary engine of social change. To that end, the Progressives conceived or enacted many of the most transformative laws of the late nineteenth and early twentieth centuries, from antitrust statutes to the creation of the Federal Reserve banking system to the outlines of what we now consider to be the basic social safety net.

  A quarrelsome and morally righteous bunch, the Progressives did not agree with each other on everything. Many of them favored the prohibition of alcohol, for example, seeing the demon rum as a monster unleashed to the detriment of American society; other Progressives, however, failed to see the harm in a working man taking a drink or two, especially after a long day toiling in a factory or walking the picket line. But they did agree on one thing: The Lochner decision, which arrived smack dab in the middle of Progressivism’s heyday, felt like a slap to the collective face. And that’s not just because Lochner struck down a regulation championed by organized labor. Like Holmes, the Progressives also hated Lochner because the ruling used the Fourteenth Amendment to thwart the will of a state legis
lature.

  That last sentence might sound peculiar in the context of today’s legal debates, in which liberalism is so closely associated with the use of the Fourteenth Amendment as a tool against state laws. Indeed, from desegregation to abortion, the Fourteenth Amendment has been inseparable from many of modern liberalism’s biggest legal causes. But today’s liberals are not carbon copies of their Progressive grandparents. Consider the modern campaign on behalf of gay marriage. When the Supreme Court heard arguments in 2013 over California’s Proposition 8, a ballot initiative that had amended the state constitution in order to forbid same-sex unions, the lawyers challenging Prop 8 sought to use the Fourteenth Amendment’s guarantee of equal protection to overrule the wishes of those voters and thereby legalize gay marriage—precisely the sort of Fourteenth Amendment jurisprudence Holmes spent his career arguing against. In the next chapter, we’ll see how modern liberals learned to stop worrying and love judicial activism (just as modern conservatives learned to stop worrying and love judicial restraint). But at this point in the story, the Progressives remain firmly on the side of majority rule and extremely hostile to almost any claim of individual liberty raised against state governments under the Fourteenth Amendment.

  Take Herbert Croly, the widely read journalist and author who in 1914 founded Progressivism’s flagship magazine, The New Republic. In his influential book Progressive Democracy, Croly maintained that the meaning of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment was “ambiguous and elastic” at best. “These rules had certainly never been framed for the purpose of curbing legislative action,”35 Croly flatly asserted. Yet thanks to a conspiracy of judges, he went on, “the police power of the state legislatures was emasculated; and the system of government by Law at the hands of a judicial aristocracy was perfected.”36