Justice Holmes and the Empty Constitution (Part 2) – New Ideal

In Part 1, we saw that the Lochner saga began in 1895, when the state of New York enacted a law setting maximum hours for bakers. Joseph Lochner appealed his conviction under that law all the way to the U.S. Supreme Court. New York argued that its law was a proper exercise of the police power aimed at promoting worker health. But in a 1905 decision, the Supreme Court struck down the law as violating the right of contract between the employer and employees. In Part 2, well examine Justice Holmess dissenting opinion in detail.

Uninterested in whether or not the Bakeshop Act was a health law, Holmes devoted only a single line of his dissent to the issue: A reasonable man might think it a proper measure on the score of health.1 As one commentator noted, he entirely ignored his colleagues and refused to engage in their debate about how to apply existing legal tests for distinguishing health and safety laws from special interest legislation.2 Holmes, who has been called the finest philosophical mind in the history of judging, had more profound issues on his mind.3

Peckhams majority opinion had been based on the premise that the Constitution protects individual liberty, including liberty of contract. Holmes attacked that premise outright. How could liberty of contract possibly be a principle capable of yielding a decision in Lochners case, Holmes asked, when violations of such liberty are routinely permitted by law? The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, Holmes observed, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. For good measure, he cited several cases in which the Court had recently approved laws prohibiting lotteries, doing business on Sunday, engaging in usury, selling stock on margin, and employing underground miners more than eight hours a dayeach law a clear interference with contractual liberty. General propositions do not decide concrete cases, Holmes nonchalantly concludedand what judge could have shown otherwise, given the state of American jurisprudence at the time?

With liberty of contract in tatters, Holmes could casually dismiss it as a mere shibboleth, a subjective opinion harbored by five justices that has no proper role in constitutional adjudication.4 To drive home his contempt for the majoritys approach, Holmes included in his Lochner dissent a snide, sarcastic gem that has become the most quoted sentence in this much-quoted opinion: The Fourteenth Amendment does not enact Mr. Herbert Spencers Social Statics.5 For a modern reader to grasp the meaning of this reference, some factual background is required. The English author Herbert Spencer (18201903) was a prominent intellectual whose most important book, Social Statics,was originally published in 1853 and reissued continually thereafter. In the three decades after the Civil War, one historian has written, it was impossible to be active in any field of intellectual work without mastering Spencer.6 Central to Spencers thinking was a belief that our emotions dictate our moral values, which include an instinct of personal rights.7 That instinct Spencer defined as a feeling that leads him to claim as great a share of natural privilege as is claimed by othersa feeling that leads him to repel anything like an encroachment upon what he thinks his sphere of original freedom.8 This led Spencer to conclude: Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.9 Holmes, by coyly denying that Spencers law of equal liberty had the solemn status of a constitutional principle, masterfully conveyed two points: that any principle of individual liberty must emanate from a source outside the Constitution, not within it and that the Peckham majoritys liberty of contract had the same intellectual status as Spencers emotionalist rubbish. All my life I have sneered at the natural rights of man, Holmes confided to a friend some years later.10 But in a lifetime of sneering, Holmes never uttered a more damaging slur than this offhand reference to Herbert Spencers Social Statics.

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To be sure, the Constitutions basic principle was undercut by important omissions and contradictions, the most serious being its toleration of slavery at the state level. But the Civil War tragically and unmistakably exposed the evil of a legal system that allows state governments to violate individual rights.12 Immediately after that wars end, three constitutional amendments re-defined and strengthened the federal system, elevating the federal government to full sovereignty over the states and extending federal protection to individuals whose rights might be violated by state legislation. Two of these amendments were quite specific: The Thirteenth banned slavery, and the Fifteenth required that blacks be allowed to vote. But the Fourteenth Amendments reach was much broader. Not only did it endow individuals with federal citizenship, it also specified that no state government shall abridge the privileges or immunities13 of any citizen or deprive any person of life, liberty, or property, without due process of law.

In light of this context, no honest jurist in 1905 could deny that the Constitution embodies certain views on the proper relationship between the individual and his government. Reasonable disagreements might concern how that basic framework should guide interpretation of the documents express language, but no such disagreement could obscure the fact that the Constitution was chock-full of substantive content. Yet it was precisely this fact that Holmes now urged the Court to evade. The same compromises and exceptions that rendered liberty of contract an easy target in Holmess attack on the Lochner majority also lent plausibility to his wider assault on the notion that Americas Constitution embodies any principles at all. A constitution, he wrote, 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. As is evident from the two illustrations he chose, Holmes was using economic theory to mean a principle defining the individuals relationship to the state. His first example, paternalism and the organic relation of the citizen to the state, refers to the Hegelian view that a nation, in one philosophers description, is not an association of autonomous individuals [but] is itself an individual, a mystic person that swallows up the citizens and transcends them, an independent, self-sustaining organism, made of human beings, with a will and purpose of its own.14 Thus, as Hegel wrote, If the state claims life, the individual must surrender it.15 Holmess second example, laissez faire, refers to unregulated capitalism, a social system in which a nation is an association of autonomous individuals, who appoint government as their agent for defending individual rights (including private property rights) against force and fraud.

In Holmess view, a constitution cannot and should not attempt to embody either of these theories, or indeed any particular view on the individuals relation to the state. Rather, a constitution is made for people of fundamentally differing views, any one of which may rightfully gain ascendancy if its adherents compose a sufficiently influential fraction of the electorate. As Holmes put it: Every opinion tends to become a law, and the reshaping of law is the natural outcome of a dominant opinion.16 In other words, a nation made up of capitalists, socialists, communists, anarchists, Quakers, Muslims, atheists, and a hundred other persuasions cannot reasonably expect its constitution to elevate one political view above all the others. Because opinions vary so widely, a nation that deems one superior to all others risks being torn apart by internal dissensions unable to find outlets in the political process. On this view, a proper constitution averts disaster by providing an orderly mechanism for embodying in law the constantly shifting, subjective opinions of political majorities. As one commentator explained, Holmes believed that the law of the English-speaking peoples was an experiment in peaceful evolution in which a fair hearing in court substituted for the violent combat of more primitive societies.17 It did not trouble Holmes that under such a constitution, society might adopt tyrannical laws. As he once wrote to a friend, If my fellow citizens want to go to Hell I will help them. Its my job.18 And so Holmes was able to conclude, in his Lochner dissent, that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion.

So there you have it. In just 617 carefully chosen words, the framework of liberty erected by the Founding Fathers and buttressed by the Civil War amendments had been interpreted out of existence.

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In short, Holmes believed that theSupreme Court presides over an empty Constitution empty of purpose, of moral content, of enduring meaning bereft of any embedded principles defining the relationship between man and the state. This distinctively Holmesian view, novel in 1905, is todays orthodoxy. It dominates constitutional interpretation, defines public debate, and furnishes a litmus test for evaluating nominees to the Supreme Court. Although judges sometimes close their eyes to its logical implications when their pet causes are endangered, Holmess basic argument remains unrefuted by the legal establishment. In his bleak universe, there exists no principled limit on government power, no permanent institutional barrier between ourselves and tyranny and the government can dispose of the individual as it pleases, as long as procedural niceties are observed. This pernicious Holmesian influence is reflected in the declining stature of Americas judiciary.

MR. JUSTICE HOLMES dissenting.

I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent.

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencers Social Statics. The other day we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Securities Co. v. United States, 193 U.S. 197. Two years ago we upheld the prohibition of sales of stock on margins or for future delivery in the constitution of California. Otis v. Parker, 187 U.S. 606. The decision sustaining an eight hour law for miners is still recent. Holden v. Hardy, 169 U.S. 366. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. 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. It is made for people of fundamentally differing views, and 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.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

To be concluded.

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Justice Holmes and the Empty Constitution (Part 2) - New Ideal