Unriddling Lochner: Pound’s Legal Philosophy Explains a Ton of Anomaly
Jurisprudence (philosophy of law) sounds like quite an intimidating word; but, as Roscoe Pound ably demonstrates, knowing a bit about what law is and what law sets out to do could explain legal oddities like the so-called “Lochner Era” in American law. Furthermore it sheds light on why we often do not apprehend the Supreme Court’s reasoning or Aristotle’s writing.
The Lochner Era refers to the period, approximately between 1877 and 1937, when the Supreme Court regularly overturned economic legislation passed by States or Congress. It is worth pausing to look at the social and political context before talking about the law.
Around the turn of the 20th century, American society went through a rapid yet deep transformation. Areas that were once remote frontiers were now linked by rail and economic ties to urban centers of the East and Midwest, and increasingly South and West. People who had once mostly worked on farms and lived in villages were now moving to urban areas to work in factories and shops or were becoming dependent on those areas. Economic life, once local, individual, family–oriented, was becoming national (or international), interdependent, and social.
In the second half of the 19th century, the availability of cheap immigrant labor, concentration of ownership, and competition from abroad, resulted in deplorable working conditions and ignited (often violent) labor unrest. States and Congress attempted to mitigate these ills with labor legislation regulating everything from work hours to work conditions to pay rate. Farmers, town dwellers, and workers in cities came to heavily rely on “public services” like railroads, electric power, telegraph, water, and gas. Again, States at first then Congress took action, beginning with railroad regulation then eventually all utilities. This popular tendency to reform labor and monopolistic conditions became known as the Progressive Era.
But these reforms did not turn out as lawgivers had hoped, because as one branch of government legislated another blockaded. The Progressive Era crashed head-on into the Lochner Court. Between 1899 and 1937, 184 State laws (not counting Federal statutes) were invalidated by the Judiciary based on the Fourteenth Amendment due process and equal protection alone, not counting those invalidated on other Constitutional grounds, such as the Commerce Clause. [Reminder to non-lawyers: the 14th Amendment was one of the “Civil War Amendments” meant to ensure that former slave-States did not infringe African Americans’ rights as free citizens. Courts were using the Amendment’s prohibition against State deprivation of rights or property “without due process of law” and “equal protection of law” to block economic regulations.]
It was Federal courts that directed the legal blood bath. Of course many regulations were affirmed and the picture was more complex than the numbers suggest. Incredibly, however, between 1935 and 1936 the Supreme Court barred just about every New Deal regulation that came before it; yet a year later, it did an about-face upholding everything from a minimum wage law, to the establishment of the Social Security Administration, to the National Labor Relations Act.
One would naturally ask, how and why did this happen? Were judges always of the opposition party? Were they “reactionary” out of self-interest?
Holmes’s Admonishments
The celebrated Oliver Wendell Holmes, Jr., a member of the Court that decided Lochner, understood the problem in his own way and offered direction to his colleagues. He felt that his “brethren” were literally reading “laissez-faire” economic theory into the Constitution. Robert G McCloskey, a Supreme Court historian, agreed. He viewed the Court’s jurisprudence in the 1870s through the 1930s as an attempt to defend against “the encroachment of communism.” Holmes famously trumpeted his Lochner dissent,
“But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez-faire.”
The conservative Holmes’s recommendation was simply more tolerance. He expressed his view that he did not think much of socialism and was skeptical of most of the economic reasoning behind the regulations in fashion during the Progressive Era; but he thought judges should yield to “the dominant opinion” when it did not conflict with “basic liberties.”
“…the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”
Beautifully phrased no doubt, Holmes’s statement precisely missed the point. Given that his brethren genuinely took liberty of contract and freedom to use one’s property as fundamental rights, his argument did not address their concerns. If he speaks to us more clearly than the Court’s majority, this is perhaps because we live in a world that has wholly embraced the dissents (many of them his) of a few generations ago.
Pound on Judges’ World-view
Roscoe Pound, one of the most influential legal scholars of all time, was Dean of Harvard Law school for over 20 years and a philosopher of law. He interpreted the events inside the “Lochner Court” as they happened. Pound viewed law and judges as products of their time, education, and background. For him, American jurisprudence developed the way it did by the end of the 19th century because of geographic, social, and intellectual conditions: namely, he reflected that a Puritan past together with the pioneer experience and “natural law” legal philosophy founded upon a “rights-centric” 18th century political theory were behind the judges’ “reactionary attitude.”
For Pound, jurisprudence revolves around what law is, but this question is inextricably bound with what it is for. Understanding how the “Lochner judges” answered these two questions, we will be able to follow their decisions, and, ultimately make sense of how judicial thinking evolved to embrace the realities of the 20th century. Setting aside the “essence” of law for the moment to focus on law’s goals, we can uncloak much about the judges’ thinking.
Law reflects its time; its philosophy adapts itself to the task at hand, cycling through stages according to the needs of its age. After turbulent periods, it seeks to promote security and stability, while assimilating changes that happened in a previous era of growth; at the beginning of an epochs of social change, however, it seeks to adapt itself to new exigencies and realities by bringing into law societal goals, often accepted at face-value as fundamental.
The 19th century culminated centuries of discovery, exploration, conquests, expansion, colonization, invasion, and invention. The wide-open, unknown world needed individual initiative to go out, explore, and domesticate. Individual human will–even when foolish or arrogant–had to be given free reign to investigate the unknown. It was the age of enterprise, so freedom of action and security in property rights were of the highest goals of society and, thus, of law.
But by the end of the century, everything had changed. The remotest villages were now incorporated by rail or road, and more importantly, most of the land was already owned or set aside. With the arrival of millions of immigrants, there was plenty of ready and cheap labor, but not so much land or unowned natural resources. The continent was effectively settled. No longer could pioneers go West (or Midwest) for free land in the form of homesteads, and new growth had to occur by increased density, more towns, bigger towns, and cities. This is a form of Frederick Jackson Turner‘s Frontier Thesis, in reverse.
Intensified interdependence, friction and conflict naturally led to increasing resort to law and legislation. Courts could no longer simply fill in gaps, using traditional common-law reasoning by analogy, to deal with entirely new situations. Nor could they downright accept everything thrown at them in the statute books.
This collision of old-school judging with new-school legislating led to the crisis in the “supremacy of law.” If judges were to respect their own precedent and tradition, and apply the reasoning they’d been trained in, how could they also defer to the Legislature?
Pound did not view “Lochner judges” as self-interested or cynical men. For him, a judge reasons according to what he (always he at that point) knows. Since what “he knew” mostly consisted of 19th-century precedent reflecting America’s pioneer experience, its Puritan past, its common law heritage, it was hard for him to accept social legislation, let alone economic regulation. The boundaries of his world–for law is but setting of boundaries for the conduct of men–were nature, the Bible, or the Constitution, not what a legislature deemed good policy.
It did not require, then, a cynical judge to find something amiss with a statute setting railroad rates, or maximum working hours for bakers, or a minimum wage for hospital workers. It did not require a belief–as Holmes once remarked–in Spencer’s sociology. It was sufficient that freedom to contract the way one chooses, or freedom to employ one’s property to one’s own purposes, conflicted with a regulation. The regulation then had to be limited or outright negated. After all, if someone did not like the way another contracted with her, she could go do business elsewhere with someone else, or like the pioneer she could simply move to a new place and do as she wished. There was no shortage of free or cheap land, no lack of natural resources. There were no excuses.
In fact, the clash between the judges’ world, saturated in 19th-century precedent, and people’s 20th century reality was a conflict between plenty and scarcity, space and claustrophobia. No, they were not bad man, they were simply men of their time and education.
But a new philosophy of law, often called “sociological jurisprudence” (after the words of Pound, Ehrlich, and Holmes), would emerge to cope with the new realities. Its proponents, however, would argue that it was nothing novel, for law had always reflected the needs of the societies in which it developed while keeping a continuity with its traditions. Law was never stagnant but likewise never created whole-cloth out of nothingness.
How, then, did this creation come about? How did judges come to embrace “social needs” as a legitimate sphere for law?
In a coming post, I will finish with how the Court was able to adapt plus something about “legal paradigms.”
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