Tenth Annual Rosenkranz Debate: Lochner v. New York

[Music] good afternoon I want to welcome you all to our 10th annual Rosenkranz debate I noted when we listed the first one I noted that we listed the first one is the first annual debate that was hutzpah but it seems to have worked I want to express our gratitude that a resin transformer [Applause] we love having this Saturday centerpiece for our convention an intellectually sharp one-on-one debate between two highly prominent legal theorists the series had a wonderful start in 2008 with a discussion between judges Richard Posner and Mike McConnell then judges Guido Calabresi and Frank Easterbrook were followed by Richard F followed by Professor Richard Epstein and William Eskridge Paul Clement and Larry tribe debated healthcare in 2012 Judge Kozinski and hardly a crease debated in 2013 Randy Barnett debated Jay Harvey wilkinson in 14 former Attorney General Michael Mukasey debated nadine strossen in 15 Robbie George and John McGuinness debated quote the Constitution was made for moral and religious people and indeed suited for the government of no other and last year professor chiu gene and Deborah rody debated to moderate this year's debate and to introduce our speakers I want to introduce professor Nick Quinn Rosenkranz who in addition to his professorship at Georgetown Law School is on the board of the Federal Society Nick thank you thanks very much we're delighted that you're here gene and I had this idea ten years ago to have a sort of centerpiece for Saturday of convention the attendance is not as great on Saturday as on Thursday and Friday and we seem to have solved that problem so we're we thank you all for choosing to spend your Saturday with us today we're today debating Lochner versus New York on the off chance that someone in this room doesn't know what that is New York had passed a statute saying that bakers could not work more than 60 hours per week and the court held that entering into a contract of that sort was part of the contract to work more than 60 hours a week was part of the Liberty protected by the Due Process Clause of the Fourteenth Amendment and thus New York statute was inconsistent with the 14th amendments the case has as you know come to stand for an era and so we'll be debating not merely the case but the era itself and the doctrine surrounding it so and probably should mention this topic is it's going to brought more to the fore by a magnificent recent book by David Bernstein rehabilitating Lochner so the urge all to have a look at that now our resolution today is quote resolved Lochner vs. New York still crazy after all these years and I generally wordsmith the the resolutions myself but in this year I really have to give credit where it's due Jeanne Meyer formulated the wording here it's actually it's much harder than it looks to be sort of pithy and provocative in just this way so we have to give credit to Jeanne and I'll say it's a particularly remarkable achievement because Jeanne confesses he is actually the only person on the face of the earth who is unfamiliar with the song so that's what actually quite an accomplishment to have framed it in just that way so now to introduce our debaters to my left is Professor Akhil Reed amar he's the sterling professor of law and policy public policy at Yale University I should say I'm gonna be brief in these introductions you have a much more detailed versions I think in your programs and online and so forth I just you know I want to say personally appeals a great friend and mentor of mine and it's a particular thrill to have him here doing the 10th annual debates I took fifty three credits as a student at Yale Law School 19 of the 53 with the keel I I believe that some sort of record is not in a keel is in addition to his many accomplishments and magnificent books and I'll mention one you've several here but I'll mention my favorite the Bill of Rights accretion and reconstruction I think is maybe the best book about the Constitution in the last 50 years it's a terrific accomplishment so I recommend all of his work to you and I'm thrilled that he's here so say I'd like to say also he's a great friend to the Federalist Society and a great friend to the Yale chapter in particular and in addition we always every year year and year-out makes a point of coming down here to DC to our convention and pretending to disagree with us and so we're delighted that you're here so I'm thrilled that to share the stage with the Keele you know by contrast I have to say I'm distinctly ambivalent to be Randi don't get me wrong now don't get me wrong Randi is absolutely brilliant as you all know and his accomplishments are hugely impressive and he's published a number of magnificent books including restoring the Lost Constitution the presumption of liberty and our Republican Constitution I'm ambivalent though because as you know Randy is the Carmack waterhouse professor at Georgetown Law School where I also teach and you know Randy and I actually usually try not to be in the same place at the same time I'm about to leave at least you leave have a designated survivor so see that a textualism can live on at georgetown if anything untoward should happen I'm not sure what is going on there while we're both here I suspect our 126 colleagues are frantically running around the building finding each copy of the Constitution and scribbling trigger warnings on the our format today is that each debater is gonna have 12 minutes for an opening remark then we're gonna have seven minutes for reply and rebuttal then we'll have a less structured give-and-take and then we'd love to take some audience questions so without further ado Akhil amar it's such an honor to be back with you with my old friends and and I hope some new ones Lochner it's as Nick said it's a it's a case it's an era it's a metaphor and the and I think the case on its facts is is wrongly decided that the larger philosophy that it embodied is mistaken and that's what I'll try to defend so as Nick told you the law at issue in Lochner was a law that basically prohibited contracts to work more than 60 hours a week as a baker and you may have been taught that when Lochner the Lochner court strikes it down it does so with a full-blown sort of libertarian Liberty of contract theory and I don't think actually that's the theory that animates Lochner because the Lochner Court is perfectly okay we have all sorts of intrusions on individual liberty laws prohibiting gambling laws prohibiting prostitution laws prohibiting unsafe working conditions in underground mines for example even when agreed to by adults a fully competent and so that's not what really motivates the Lochner court a full-blown sort of libertarian theory and if it did I think it would be much more try if the Lochner court basically sets its face against this law because it thinks it's redistribute if it's trying to help labour at the expense of capital and that's impermissible to try to level inequalities of fortune that's a phrase actually that appears in another Lochner era case a case called Coppedge and that's why the Lochner Court is very suspicious of this law because it thinks it's trying to sort of help equalize bargaining power and and redistribute to some extent the economic surplus that's generated by voluntary transactions from employers to employees and the Lochner court thinks that's unconstitutional and I don't let me just tell you if just a and the position I'm gonna defend is much closer to John Marshall Harlan sees the great dissenter a great dissenter in that case as he wasn't Plessy versus Ferguson and in the civil rights case of 1883 and oh and a whole bunch of other prophetic cases the income tax cases Pollock I will affiliate myself with John Marshall Harlan and not with the more famous dissent of Oliver Wendell Holmes whose vastly overrated [Applause] [Music] on that point I do affiliate myself although not on others with David Bernstein's really interesting book rehabilitating Lochner home should not be your hero he doesn't believe in rights Liberty freedom equality judicial protection of those things so so and and I know they don't tell you that at the Harvard Law School quite so so just the facts of Lochner just so you know these these are facts appear in Harlan's dissent just two quick ones the average age of a baker is below that of other workman they seldom live over their 50th year most of them dying between the ages of 40 and 50 this was actually a genuine health and safety law because actually bakers are working in the dark they get up you know pre-dawn hours they're inhaling flower dust all the time they're not out there in the sunlight and that actually that's like being in an underground mine and and they and there are reasons to have health and safety rules even if people voluntarily agree to them because they are putting not just themselves at risk but their families and before you have a welfare state the government is going to have to care for their widows and orphans if they're unable to do so this is what a commission finds in New York quote the constant inhaling a flower dust causes inflammation of the lungs and the bronchial tubes so I think it's just a very straightforward Health and Safety law that is invalidated only because the court actually is really suspicious of that it thinks something else is going on which is a certain kind of favoring underdogs government favi under underdogs in the economy and the court says that's unconstitutional and Harlan actually admits he says it may be that the statute has its origin in part in the belief that employers and employees and such establishments are not on an equal footing meaning equal bargaining footing and I think that's also a permissible government purpose now why do I think that because because you could read the takings Clause very broadly and say gee that's improper too even though it's about real property or property generally it signals a general anti redistribution principle you could try to read the no obligation of contract impairment to the obligation contrast clause that way one originally applied only against the states when only against the federal government you could read them very broadly but if you are read the Reconstruction Amendments broadly also because you see the Thirteenth Amendment is redistributed it takes property lawful property from slave masters and redistribute it to the slaves themselves it does so in the name of a fuller sort of dignity liberty equality and these aren't just traders you see that it takes property from 13th amendment takes lawful property from lawful masters who fought for the Union Army in places that never seceded like Kentucky we're slave states that would be John Marshall Harlan family just in case you missed it because his was a slave holding Kentucky family and the Thirteenth Amendment redistributes property permissively and the 14th amendment actually says you know emphatically there's going to be no compensation for slaveholders section 4 who lost a slave their property in in slaves and we're not going to actually do any redistribution for that so I think modest redistribution of a certain sort is not an impermissible purpose health and safety laws are not impermissible and even if you don't think that in 1905 you see so Lochner is less crazy then that it would be today and because in the interim we have a 16th amendment and the 16th amendment the income tax amendment was designed to provide for not just an income tax but a redistributed income tax and everyone understands that the income tax then the first important federal one is signed by none other than Abraham Lincoln and it's a redistribute of tax according to Treasury Department estimates less than 1% of the population had been subject to it and here's actually and both parties support an income tax amendment and it's and they understand is redistributed here's the Democratic party platform of 1908 we had a great national conversation about this we urge the submission of a constitutional amendment specifically authorized Congress authorizing Congress to Levy and collect attacks upon individual and corporate incomes to the extent that wealth may bear its fair share of the burden of the federal government so it's it's a pertinence it's so modest redistribution of a certain sort is as American as apple pie as constitutional as the Constitution itself the 16th amendment 13th amendment 14th amendment section 4 so now moving forward in time because I I'll let you know we're a small group we're just among friends here I'll let you in on a secret I actually have strong libertarian sensibilities and and Lochner isn't quite a libertarian case I think it's a proper tearing case and I think my friend Randy and here are a couple of his books and I do commend these to you because they're really powerful and interesting and I've learned a lot from them I think there's some mistakes in them and we can talk about you know what those might be cuz he tries to defend Lochner on Fourteenth Amendment originalist grounds and I have some some doubts about that maybe in the second round we can talk about that a bit but here are some things that Randy has stood for and that I agree with but I think he he actually said you know people who are desperately ill and they're undergoing cancer treatment let's say and medical marijuana can alleviate their their pain should government be allowed to prohibit that now that's the rage case now he framed it as a federalism case and I think as a federalism case I I respectfully disagree with his argument but if he had framed it just as a straight-out Liberty idea you know that and then states couldn't prohibit this either I would have found that quite I will found that quite persuasive let me how many means do I have left about maybe two okay so let me mention one I'll give one other shout out to now here's why I disagree with him I did I do not find Obamacare and egregious law it had an individual mandate but you see as a matter of Liberty if that's promised matter of Liberty Romney care was unconstitutional or a violation of Liberty are all sorts of of other state laws that require insurance for all sorts of purposes to drive a car you could say well you don't need to drive a car well good luck in California you know without a car or or in Texas but but if government can tax me and it can if it can buy stuff with the money it gets from me and it can and if it can give that to me and it can why can't to say it's a matter of liberty Ammar get it yourself I don't really see that as a distinctive threat to Liberty but there are modern cases that I think are libertarian in in more attractive ways Griswold is one and but it's actually liberty and equality because you see privacy unlike property is a little bit more equally distributed you know what one person it's not quite one person one vote like one person one bed you can only be in one bed at a time that's true if you're Bill Gates that's true you know if you're a popper it's more evenly distributed so and so I think privacy brings the best of liberty and equality together let's take one other example minnow and where I think Randy and I have some common ground in the Heller case and city of Mikado versus McDonald applying these right against the state both Randy and I and the great Eugene Volk who was here yesterday but isn't here believe and I think actually I was on record first in fact you know way back in that Bill of Rights book there's a right to have a gun in the home for self-protection and that's as a matter of Liberty and everyone can have it you know it's it's not that expensive an item and and my liberal friends sometimes I think are a little bit intolerant in that way um they understand you know the right to have you know they believe in sex in the home but not guns in the home you know when I say this is America you know let them both have what they want you know personally I prefer sex but whatever floats your boat and and we we my wife hates it when I say that but we're just among friends here we don't need to you know spread the word so Randy and I have a lot in common Griswald yes Heller yes city of Chicago versus McDonald yes Lochner not so much and gene you really should hear hero and the the Paul Simon album not just not just the one song and there's one actually since you mention it there there is one song on the album 50 ways to leave your lover there are many ways to leave [Laughter] pastor Randy Barnett well that was awesome I'm so glad that that Akhil decided he was going to defend John Marshall's dissenting opinion and not the egregious Holmes dissenting opinion because it's a much easier thing for him to do if he would hit if he had chosen to defend Holmes his dissenting opinion then he would be no different than Jay Harvey Wilkerson who I debated here five years ago and we would just have to repeat that debate all over again and that would be very boring so this is actually a much more reasonable reasoned debate I'm going to approach this texturally as I know Akhil also likes to do and talk about Lochner as a dupe first of all is the due process clause case and secondarily as a privileges or immunities clause case as you know Lochner does use the due process clause it has been falsely characterized as applying what is now called substantive due process meaning L of taking certain rights identifying them as fundamental elevating them to some heightened status a very heightened status subjecting any restriction laws to strict scrutiny which those laws typically don't pass and that is not at all what the Lochner Court did he does talk about Liberty of contract of course but it doesn't do modern substantive due process the term substantive due process itself was a term of opprobrium that was generated by progressives to criticize the Supreme Court it wasn't the term the court used and it wasn't adopted by the Supreme Court until relatively recently no I think what were the court was adopt was using here was the due process of law clause we normally call the due process clause but it's the due process of law clause and what the due process of law Clause is clauses in both the fifth and the Fourteenth Amendment say is that no person can be deprived of life liberty or property without the due process of law meaning it has to be by a valid law and in this case Joseph Lochner was deprived both of property and of Liberty he was fined for his breach of the bakeshop Act and then he was jailed for failing to pay that fine and so he was being deprived of his liberty at the time under this supposed law and then the question is was it really a law or as salmon Samuel chase said in Calder versus bull an act of the legislature for I cannot call it a law contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority a rightful exercise of legislative authority so we have to ask ourselves under the due process of law clauses is whether the relative legislature was rightfully exercising their legislative power so if we're talking about a federal law like the affordable care act or like the Controlled Substances Act we would have to ask we would have to evaluate the substance of the law to see whether it had been authorized by an enumerated power that would be both a common in the case of Commerce Clause for example to be both a Commerce Clause challenge it would also be a due process of law case because it's the due process of law that gives individual persons a process or procedure by which they may challenge a law being imposed upon them as not being an actually valid law so every Commerce Clause case is also a due process of law case as well and it's true here as well and of course the Fourteenth Amendment is speaks of States and so we understand I mean Federalist Society members I think are pretty much on the same page about where they're going to find the powers of Congress now what about the powers of states what would make an acts of the legislative state legislature a wrongful act well the Fourteenth Amendment as you know also includes the privileges or immunities clause which says that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States so to see if a law that's being imposed upon someone and being there being deprived of their life or Liberty because about law is in fact an appropriate law we must ask if it abridges the privileges or immunities of citizens united states so what are those privileges or immunities to understand that question we must begin with George Mason's draft for a Bill of Rights or a declaration of rights in Virginia and I always prefer to begin with George Mason's draft not the actual adopted version but adopted two weeks later by the Virginia a provincial convention because the version they watered it down a little for reasons that I might mention so here's what George Mason said this is how his declaration of rights begins that all men are born equally free and independent and have certain inherent natural rights of which they cannot by any compact deprive or divest their posterity among which are the enjoyment of life and liberty and the means of acquiring and possessing property and pursuing and obtaining happiness and safety this was the canonical reading a rendering of natural rights Jefferson had it in front of him on his desk when he was writing the Declaration of Independence some two weeks after this draft was written it was adopted in various similar formulations by the states of Massachusetts New Hampshire Pennsylvania Vermont in addition to Virginia and in Massachusetts we know it was considered to be judicially enforceable because it was this language that was used in 1783 to hold that slavery was unconstitutional in Massachusetts on the basis of this language what the court said in the Kwok Walker case is that among other things without resorting to implication the court said in constructing the Constitution the slavery is in my judgment as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence referring to the very same wording that George Mason had adopted James Madison when it came time to draft the Bill of Rights when Madison was a congressman James Madison proposed that this very same language be added to the preamble of the Constitution because initially they didn't realize that the amendments are gonna go at the end they thought they were gonna be inserted within the text and here's what he proposed be added to the preamble that government is instituted and not to be exercised for the benefit of the people which consists in the enjoyment of life and liberty with the right of acquiring and using property and of generally of pursuing and obtaining happiness and safety exactly George Mason's words Madison wanted in the preamble and when he gave his Bill of Rights speech his so-called Bill of Rights speech he had a whole list of amendments including this one for the preamble and it was that what he wanted to add to the preamble that he said the following of he says the first of these amendments relates to what may be called a bill of rights when Madison used the term Bill of Rights this is what he meant a Nikhil is one of the earliest scholars to realize that in fact the term Bill of Rights was not initially used to describe the first ten amendments of the Constitution I mean Akhil really plowed it really blazed the path here it was not a phrase that was associated with the first ten amendments till at least after the Civil War and I think more recent studies have shown it wasn't until the 1920s or 30s that the first ten amendments came to be called the Bill of Rights what was called the Bill of Rights was this George Mason language about the aptly first the importance of fundamental natural rights and as Madison said that government is instituted and ought to be exercised for the benefit of the people which consists in the enjoyment of these natural rights so bringing us closer to the 14th Amendment we noted in the original Constitution there is a privileges and immunities clause in article 4 and the privileges and what are the privileges and immunities Clause well the canonical case was just just justice Bush Watts Bush Rod Washington's Circuit Court opinion in the case of court field versus Coryell in 1823 and here's how justice Washington described the privileges and immunities that government and among a very long passage but what the relevant passage is here that government is instituted in all sorry protection here's the privileged immunities protection by the government the enjoyment of life and liberty with the right to acquire and possess the property property of every kind and to pursue and obtain happiness and safety you will recognize this as Mason's formulation and also later on he says to take hold and dispose of property either real or personal this was the language that was used repeatedly by those who drafted and defended the 14th Amendment and the privileges or immunities and explain the privileges or immunities clause not only do they cite court field versus Coryell they repeatedly quoted this passage from core field versus Koryo including jacob howard who was the sponsor of the of the Fourteenth Amendment in the Senate and when he was asked to say well what are the privileges or immunities of citizens united states he read verbatim this opinion from Justice Washington in core field versus Coryell and then he added at the end of that to these privileges and immunities whatever they may be for they are not and cannot be fully defined in their entire extent and precise nature to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution in other words for Howard first came core field versus Coryell rights and then secondly came the rights that were enumerated in what we now call the Bill of Rights finally the final piece of pre fourteenth amendment of an in-text that I will read to you is the wording of the Civil Rights Act of 1866 you will notice so far I've been talking about property although it just includes the right to dispose of property which would be by contract of course but I haven't mentioned contract the Civil Rights Act of 1866 wouldn't was establishing what the rights of the freedmen would be in fact what the rights of all persons would be said the following included the following amongst those rights the rights to make and enforce contracts to sue be parties and give evidence to inherit purchase lease sell hold and convey real and personal property this provision the statute was passed under Congress's Thirteenth Amendment power the second article of Thirteenth Amendment gave Congress the power to implement the Thirteenth Amendment some in Congress including John Bingham questioned whether Congress truly had the power to enact this statute under the Thirteenth Amendment it was for that and for a bunch of other reasons the 14th amendment was enacted and just to make sure Congress then read readapted repasts the Civil Rights Act after they adopted the 14th amendment to ensure its constitutionality it was the privileges or immunities clause and combined with the other two clauses in the section one and the citizenship clause as well that justified the passage of the Civil Rights Act of 1866 so it is absolutely no doubt I think historically that the right of property and contract are among the privileges or immunities of citizens of the United States that states cannot deprive and it and in the due process of law allows people to challenge laws that take away their liberty or their property if they violate one of these privileges or immunities but then what then what because I deny that the Lochner court used strict scrutiny or anything like strict scrutiny I agree with the keel the Lochner the lock what's called the Lochner court in fact that was a term that didn't get invented until jere Gunther started calling it the Lochner court in the 19th in the 1970s believe it or not because the Lochner court did it felt a lot of regulations the ones that I keel said to be sure but here's another regulation to upheld it upheld the regulation of the bakeshop industry because in fact there was a very elaborate code enacted called the bakeshop Act which regulated the minutiae of the bakeshop industry including for example the height of ceilings what the what the composition of the floor should be where the washroom facility should be all of this was upheld by the Lochner court in Lochner in Lochner itself you can actually open up the opinion and see all the provisions of the bakeshop Act there was only one provision of the bakeshop Act that it questioned and it questioned it because the question did which was the maximum hours law which had been added to the bill by the bakeshop Union it came into the bill somewhat separately from the rest of the bakeshop act and it questioned on the grounds it by employing what was what came to be the traditional way of evaluating whether a law was extras a police power regulation was within the power of the legislature to enact and that is to ask whether the law was irrational or arbitrary and I'm just about out of my time so I'm not going to be able to say too much more about that maybe I'll say more in the rebuttal but I will say they found the law to be arbitrary in part because it was only being applied to Baker's and they looked at the appendix that had been filed by Joseph Lochner which included a lot of social science research at the time primarily involving the English bake shop industry which basically said the Baker's weren't any particularly more dangerous and occupation than any other occupation and then many other occupations and by singling out the bake shop into workers that was an arbitrary exercise of power here's somebody else it didn't protect it didn't protect bake shop owners who were allowed to work more than 60 hours and the very same conditions in the bake shop workers were being allowed to do if it was really so unhealthful why were bake shop owners allowed to do the same thing so it was irrational it was arbitrary in that sense it was irrational because there was an inadequate evidentiary support for it being a genuine health and safety law Justice Harlan did in fact disagree with that on the facts so there is that good-faith disagreement I believe between the two approaches but they think they also adopted a different presumption I think the majority said the burden of proof was more or less on the legislature to establish and then justice Harlan wanted to adopt a rebuttable presumption of constitutionality so for all these reasons I submit that Lochner V New York by case like dr. V New York was not crazy or would not have been crazy in 1868 when the Fourteenth Amendments privileges or immunities clause and due process of law clause was adopted it was not crazy in 1905 when it was decided indeed it was generally supported by newspaper editorials at the time it did not become a public issue until faith Theodore Roosevelt made it a political question when he ran for the present for the progressive as a Progressive Party candidate in 1912 and he criticized the bakeshop case and he praised Holmes who Roosevelt had put on the Supreme Court and it was not and it would not be crazy today if courts realistically examined regulations to ensure that they are neither irrational nor arbitrary restrictions on the liberties of We the People thank you Akil seven minutes to reply so I think the zone of disagreement is actually a more modest that I want to just persuade you this is not remotely an irrational law I'll go back to what Harlan does say just once again because our Baker is any different from anyone else or is this a particularly dangerous or unhealthful employment is it more like working in underground mines where there are all sorts of safety rules and and employees might be willing to sign up in violation of them in order to get more money or something and we don't let them do that in part because they put their families at risk and the rest of us are at risk if we have to rescue them mines and all the rest so here's what Harlan says the and I just want you to hear this the average age of a baker is below that of other workmen they seldom live over their 50th year most of them dying between the ages of 40 and 50 no no maybe this hits me particularly hard because I'm you know 49 they and it's not just about their health it's about the the healthfulness of the bread that they're producing for consumers this is a food and drug out consumer safety all because if they're so tired and bleary-eyed that's that's a public health concern now for every law not with what the government says is and and and and and Harlan says if it had been 16 hours a day that was prohibited surely that wouldn't be irrational and now we're just kind of talking about you know what is a reasonable some the court says well you know why why is 10 hours you know good day good enough but not 11 you can do that for every like you know when Yogi Bear said gee if we only move first base a foot we could get rid of all the clothes plays you know so that can't be the test it can't be the test we're actually asking is it reasonable is this rational is this law like or is this Fiat arbitrary just as some a dick taught it can't be true that just because we actually have special accommodations for people who are self-employed in part it's hard even just on an accounting basis to figure out when they start and when they stop they don't punch in the way employees for who work for others are so no law has one and only one purpose there are cluster of purposes and and when you combine their health concerns of the workers with the concerns of consumers who may or may not know just by inspecting the bread whether it's it's been produced by someone who's bleary-eyed or paying attention and an additional concern that we might want actually have special accommodations for people who actually choose to be self-employed they're different in all sorts of ways from a bookkeeping perspective and a regulatory and a tax perspective perfectly reasonable law it seems to me now since Harlan has been mentioned and we are both I think John Marshall Harlan people I think just maybe let me tell you one other really famous dissent of his and and what was going on in that case that's another case out of New York the pollak versus New York case ten years before Lochner with the Supreme Court invalidates an income tax and Harlan that's five to four just as Lochner is and he says this is gonna be a just a real disaster for the country and I think he ends up being right about that and remember he's the great dissenter and Plessy vs. Ferguson and he very much he believes in the incorporation of the Bill of Rights against the states and Holmes doesn't and believes in broad protection of freedom of expression in a case called Patterson versus Colorado and Holmes doesn't why did they think that this law that Abraham Lincoln had signed into law an income tax law was unconstitutional basically because it's redistributed and that's why a lot of people don't like Obamacare because it's redistributed and it's hard to do redistribution at the state level because the fear is that poor people will move in and rich people will will move out and that then that and the federal income tax was designed to be modestly redistributed a high exemption which today's Republicans believe in and an actually tiered rate which today's even in today's Republicans to agree with is not a totally flat tax and the the pollak court thought that was unconstitutional because it was redistribute if that's actually you know the deep idea of the Lochner era is it's as I said it's not purely sort of libertarian it's a little too proper terian for for my taste and not quite libertarian enough I actually and early to give four back and forth [Laughter] Randee seven minutes right well we do agree about a lot but here's the problem if the modern anti canonical reading of Lochner is taken to be true coupled with the slaughterhouse case which Akhil strongly believes was wrongly decided now you write we both did he said that no serious scholar left right or center thinks it was rightly decided there's been a couple that have come out since you wrote that then we would both agree our serious scholars but with those two what Curt lash would be one student well your student your student and friend yeah so apart from but I didn't we both agree the slaughterhouse was wrong but thanks to slaughterhouse and thanks to the modern reading of Lochner as being in the anti canon of being a terrible awful case none of the facts that Akhil has just so passionately articulated are relevant to a constitutional challenge because it's Holmes's opinion that has been accepted as the correct approach to the Lochner case and as a result of that as a lawyer you couldn't introduce evidence of any of that in court it would just not be litigated no judge would ever pass upon the correctness of whose write a kill or me when it comes to the particular facts of the bakeshop case and actually you know we don't really care today about the facts of the bakeshop case we care about the methodology that grows out of the Lochner court and it's misinterpretation and so if then at that point what district what we what separates us is whether we favor the majority approach the peck of the Rufus Peckham approach which basically gives a presumption of creates a presumption of Liberty on behalf of each individual person and puts the onus on the legislature to justify its actions as rationale and not arbitrary or whether as justice Harlan would have had it we put the onus on the Challenger to establish that the law is irrational arbitrary I could very very easily live in a world where there was a rebuttable presumption of constitutionality not the irrebuttable presumption of constitutionality that was established in Williamson V Lee optical by the Warren Court and that was the first time that justice Holmes's approach became the majority approach of the Supreme Court as it is up until today and so that would be a pretty good world that would be a much better and I would say somewhat more libertarian world than the one we currently live in if laws had to pass martial scrutiny but here's one of the consequences of the way that Lochner has been interpreted or of that way of interpreting it and it is play and Plessy versus Ferguson is a good example of that after the slaughterhouse case basically adopted that was something that sounds a lot like what Holmes was eventually getting at it by eliminating the privileges or immunities clause when it came time to evaluate whether a law that segregated streetcars and railroads was irrational and arbitrary the court adopted the Holmes in view the court adopted the new modern anti-lock nerve you and that is simply deferred to the legislature and no factual inquiry was done by the Plessy court in deciding whether there really was a social problem that needed to be addressed by the segregation of the races they simply assumed that the legislature was acting in good faith and that's and in one paragraph they dismissed the challenge it was just chief it was Justice John Marshall Harlan who dissented in that case by himself which is why when I'm asked to state one of my here whoever my heroes on the cry very few heroes amongst the Supreme Court justices because they've all made egregious mistakes at one time or another it's hard to be get behind any one of them if I have to choose one justice who I say I admire the most it is justice Hart Marshall justice Harlan because of his work his his rulings in the civil rights cases as well as Plessy versus Ferguson and also because he took a more moderate view in Lochner then the courts would do today so I don't think this is the place to litigate the facts or science and oftentimes it was junk science behind progressive legislation of the kind that was at issue in Lochner but I and I think that the Lochner court was probably acting reason I'm sure was acting reasonably when it upheld the rest of the bakeshop act all that was issued was whether this law was in fact being passed by what the court referred to as other motives and Akhil characterizes this as redistribution you could characterize it that way I think it's more accurately characterized as class legislation which is the way the courts viewed it back in those days that is attempting to help to put to sort of advantage one group of people because they found favor at the legislature as opposed to another group of people in this case it would be labor unions on the one side not all workers by the way labor unions on the one side which had promoted this particular law and non-unionized mostly ethnic German and Jewish bake shops both in the city of New York and also in remote towns in New York which is where Joseph Lochner actually had his bakery and those were non-unionized bake shops they did not want to be unionized and by siding with the bake shop you need it not only sided with the Union it sided with the big mechanized industrial bakeries that could afford to be unionized when the small mom-and-pop immigrant bakeries could not so that is what the court suspected was going on maybe they were right maybe they were wrong this is not the place to litigate the facts of Lochner this is the place to show that Lochner V New York wasn't crazy the day it was decided it was not thought to be crazy the day it was decided and it would not be crazy today to revive realistic scrutiny as to whether legal restrictions our life liberty and property are irrational or arbitrary so terrific that's the that's the more structured part of our program and now I'd like to invite our debaters to engage with what each other said in a maybe more unstructured way and maybe just start us off Akhil if you would like to speak to Randy's last points so is this properly characterized as redistributed or was it really properly characterized as class legislation and doesn't matter I think they may be two ways of saying the same thing that I about whether it's okay for government to side with underdogs equalized bargaining power the court especially in the Coppedge cases that's per se unconstitutional that's an improper government purpose and I'm thinking well you know siding with for it for example former slaves against slave masters that's that's that's what the 13th and 14th amendments were in part about trying to create a republican citizenry of by mitigating extremes at the the bottom and the top end of a socio-economic structure in order to create a great middle-class use a modern phrase that will be that would be the backbone of a republican citizenry we do not for example auction off land in the west to the highest bidder we don't use market mechanisms we have a hundred and sixty acres and a Homestead Act and I think it would have perfectly okay for there to have been redistribution in the south from the plantation owners to the people who really worked that land and made it valuable forty acres and a mule in the in the south this was actually the 14th amendment framers vision forty acres and a mule in the south one hundred and sixty acres in the West a Morrill land-grant Act that actually uses government property to uses government resources to try to to create access to education and bring the bottom up in in more recent times a GI bill or or and these are modestly redistributed redistribute up and that's what the Lochner court actually the Lochner era judges sort of set their face against and that's as I said you can see that most prominently in the the income tax case of Pollock V New York this is a very personal case for me Paula forces New York as the fellow that came up with the theory that an income tax was unconstitutional was a man named Charles south made a chode Holland Stuart the south made he was a Yale Law School graduate south my family's very very generous to Yale and endowed a professorship in in Charles South maid's name and yes you guessed it I was originally the South made professor of law and writing these attacks on the pollak case and and the South made theories are no good deed goes so so I do think but any one other way of putting is look here's what the Lochner Court is not actually opposed to and and the proper libertarian theory you might so why don't you get to actually gamble especially if you're not gambling away sort of everything that's what a contract is it's a gamble I'm betting you know that the price of something will go up and you're betting it that it's gonna go down that that's that's the stock market or that's also but gambling is prohibited if you really have a right to your labor in all respects why why do we have health and safety laws about underground mining or all sorts of other things are all minimum wage laws unconstitutional they do sort of interfere with pure freedom of contract all drug laws of all sorts at least among adults unconstitutional prostitution and and other laws so that this is not the law today it's not the Lochner court vision they saw certain laws they looked at that and they basically saw socialism they the clock their court asked the question whether this is quote a labor law pure and simple that's a phrase and by that they meant kind of label with a capital L against capital with a capital C or maybe I should say capital K they are seeing in this the thin edge of a sort of the socialistic wedge and and I think they do over react so and and actually and maybe this concedes the debate talked already it's not crazy to think so it wasn't the legislature to have adopted this law and remember he says his hero is the dissenter in Lochner the great John Marshall Harlan and maybe in the next back and forth I'll tell you why I agree completely with a Randy and with David Bernstein in their critique of Holmes and tell you more reasons why Holmes should not be our hero but John Marshall Harlan should Randy you should respond to anything you like that achelous said but let me draw your attention to a couple of points so Akhil has emphasized this that the regulation of the minors was all right and the court was at pains to distinguish that case and is that an important distinction or not and how should we think about that and aquila also urges us to think about all the paternalistic or moralistic laws that were held to be all right like prostitution like gambling etc how should we think about those right it's good these are all good questions tough questions to answer in in the limited time I have I'm old enough to remember mining disasters happening on a regular basis when I was growing up we don't have that anymore thankfully partly I think because of the regulation of the mining industry but in fact I I could see other people in the room were old enough to remember mining disasters mining can get extreme unsafe below ground if people are tired in their not able to it to pay careful attention to what they're doing it's a very hazardous and was considered by the court to be an extra hazardous occupation the Lochner court the judges in the Lochner court didn't think bakers were in that category and they mentioned a lot of other occupations that were actually stressful in the way bake shops were stressful but I think it's a mistake to get too wrapped up in the particular facts of this case and to try to riajuu de Cate the facts of this case I want to what's really at issue with Lochner V New York today the reason why it's of interest to the people in this room is because it stands for the reaction to Lochner stands for the proposition that judges have no role in scrutinizing whether a particular restriction on life liberty or property is in fact an irrational and arbitrary one because it's not suitably related to an appropriate state purpose of the kind that they used to call competent something that the legislative was competent to Health and Safety was acknowledged at the time of the 14th amendment from the founding all the way through the 14th amendment to today to be a perfectly appropriate end of government regulation in order to protect the natural rights of the citizenry and that health and safety laws did it and so too for example where the laws that regulated public morality morality moral moral behavior that took place in the public sphere where people who might it might involuntary come upon those activities like prostitution in the streets or gambling halls or other sorts of notorious and public nuisances is how they were referred to as opposed to moral behavior behind closed doors against which there were some laws but those laws were hardly ever enforced by the state and therefore rarely if ever tested legally so yes there are appropriate governmental ends the question that Lochner poses to you in this room today is whether you believe judges have a role as both the majority and justice Harlan believed judges have a role in policing the outer boundaries of legislative discretion to make sure that that legislative discretion is being exercised in faith that is its good-faith efforts to secure the health and safety of the citizenry and it was the good faith of the legislature that the Lochner majority was skeptical about skeptical about whether this one provision buried in an otherwise appropriate Health and Safety regulation was really being exercised as a good faith method of protecting the health and safety of the public or really whether it was being cast for other motives that were that about which legislators were not competent Randy what's your thought on just the constitutionality not the wisdom I might be actually with you on the wisdom especially at a certain price point of minimum wage laws minimum wage laws certainly when the minimum wage cases were first decided use you know the minimum wage laws were first only applied to women and they weren't applied across the board and that is the minimum wage laws that were first invalidated on the grounds that they were arbitrary and in fact they were a means of disadvantaging women in the marketplace when competing with men because women it was thought could undercut the wages of men since women could basically make their own salary possibly as a second income whereas men had to support a family and therefore women would undercut them and that's why it was thought that that's why labor union supported minimum wage laws for women and when it comes to minimum wage laws across the country I do think that's an interference with freedom of contract and in fact as we all know the minimum wage the real minimum wage is zero because if you raise the ostensible minimum wage too high then you will be replaced by a kiosk and you will no longer have a particular wage at all and then you'll have no wages what so they would be unconstitutionally you would think I'm not going to say whether I think they that they're unconstitutional I would have to see that they would have a connection to an appropriate legislative purpose and I'm not exactly sure I would see what that appropriate legislative purpose is but that's the way I would structure that argument how about and and in fact with respect to any one of these hypotheticals that you're about to launch at me you're doing your Justice Breyer impersonation here though my questions are short yeah most of these all of these questions are ultimately very very fact dependent and that means there has to be a generation of a record on both sides by both parties to a particular case in controversy and then that record has to be impartially adjudicated by a judge or if you're talking about the constitutionality of a particular statute I would favor going back to the old practice in which only three-judge panel could invalidate a law for being unconstitutional that was what the Williamson believed the optical lower court was it was a judge a three-judge panel of a of a circuit court judge that the presiding judge of the district court in a district court judge and the three of them had to find a law was unconstitutional but then but they were fairly adjudicating the evidence that they heard in Williamson V Lee optical that's what I would like to see happen with every case that restricts the liberties of we the people what we're not talking about wrongful behavior we're simply talking about the reasonable regulation of rightful behavior and that's what needs to be adjudicated if challenged and the other question is because these are really interesting questions today as a matter of infringement of Liberty that's just a general anti-discrimination laws in essay employment not not I'm not talking about serving customers or other people just in general employment anti-discrimination laws which does limit the ability of the employer to choose as the employer sees fit well I said I wasn't going to answer any more hypothetical questions okay and and if you like you can pose one Randy brings our attention to calls our attention to the good faith of the legislature and asked us to inquire about that and there's a lot of language to that effect in Lochner itself a suspicion that there was some other motive and this is echoing Chief Justice Marshall and the idea of pre tax and how should we think about that should courts be in the business of scrutinizing the good faith motive pretext of statutes or not I think they have to be in and so pleased and proud because of course that pretext paragraph comes from McCulloch which you read in its entirety that's because I assigned it in this entirety and you still remember that paragraph from from the the basic con law class and I'm very proud that you do because I've always thought that's a particularly important paragraph since Randy mentioned the Bill of Rights suppose we didn't have the Bill of Rights at all we would have to think about a lot of what government does thinking about government pretext so for example you know an article in commerce that that's bought and sold across state lines well ordinarily it could be regulated or prohibited if it's a diseased piece of fruit or defective table or lamp but suppose government said you know we're going to prohibit the interstate shipment of opposition newspapers and this is a regulation of the channels of Commerce we're going to do this in 1789 and we don't yet have a 1st today BC that's a violation of the First Amendment but we don't have a First Amendment you see and we would have had to have a jurisprudence that that's not really what the cut that's not a proper and necessary and proper I'm hat tip to Jerry Lawson and pedigree and and but I step beyond Gary lost him because I'm not talking about in his terminology an executor Tory law I'm talking about actually even if it were done straight under the interstate commerce clause and not under the interstate commerce plus the necessary prep we would actually have to have an analysis of motivation as the colonists themselves actually did in the great federalism debate that was the 1760s and 1770s because they admitted that Parliament could regulate for certain purposes of Imperial benefit but they actually denied that Parliament actually could try to tax them which required them to inquire into the purpose was the stand was the the Townsend duties really actually a proper legitimate regulation of Imperial trade or was it actually an attempt to raise revenue which you shouldn't do without the consent of the people being taxed so um we have to do it when it comes to race so we have to do it when it comes to a free speech so now of course you need a proper pretext analysis my claim is the fundamental one that a law designed to favor the have-nots at the expense of the house is in general not an improper purpose even when given the the spirit and intent of the Reconstruction Amendments that's the fast and especially as reinforced by an income tax amendment that is understood by everyone whether they're for it or against it as blessing the permissibility of certain kinds of redistribution because the tax is going to be a soak the rich redistribute of time so I have a question a keel that row along that lines and we agree entirely on the prana use of proper and pretext and the importance of the McCulloch language but at the state level do you think it's an improper purpose for a legislature to enact a so-called economic regulation in order to benefit a certain subgroup that is politically well connected and perhaps it makes campaign contributions would it for example be appropriate appropriate motive to help out the ophthalmologists and optometrists at the expense of the opticians and if that's the case what sort of inquiry is justified under the Due Process Clause in order to ferret out the bad motives or the what the Lochner court called the other motives in a lower court proceeding excellent and unlike you I won't dodge hypotheticals just just saying so I think we want to distinguish two things and and and Randi in his writings on this is exquisitely acutely attentive to this important question about the judicial role so he says you know one question is really on whom you put the burden of proof in a case like Lochner and and that's actually a rather significant theme of this book which I do commend to you all and this one also although I feel just to be fair in that book I do praise Harlan in his dissent and I say that would be better if we had Harlan's approach today no I'm saying nice things about you know don't fight me I haven't told them the mistakes yet but if you push me is that the first edition no excuses here so we might want to distinguish between things that are actually not constitutionally proper from in a platonic sense and the judicial role and what judges are good at and not good at and and this is John Ellie's book a democracy in this trust it's subtitle is a theory of judicial review this is Caroline products a footnote for which is not about opticians and optometrists and ophthalmologists Williamson versus the optical but the earlier case about synthetic milk and and whole milk and it might very well be that judges don't need to intervene that much to protect you know one you know fairly well organized group opticians or optometrists off the models against other equally well organized groups I'm not at all sure that that the judicial scrutiny economy is best served because you know there are only so many things judges can do I want them to focus a lot on smoking out a race discrimination and a political viewpoint discrimination and gender discrimination these are actually central things in the 14th amendment I'm not sure that they actually need to be as skeptical as the majority it was in Lochner of a law as I said designed to basically help employees at the expense of employers and I understand that they're going to be differences among employees and and they're not all always going to be on the same page but but it seems to me that the owners are able to pretty well to protect themselves in the legislature and I don't see that the 13th and 14th amendments were all about protecting against minimum wage I think this last 30 seconds and we're gonna take some I think this is a distortion of how things actually go on search some people are well organized but the kinds of challengers that for example the Institute for justice brings concerns the individual florist or a hair braider or somebody who does animal massage these people are not people who are organized and they are up against organized entrenched interest groups who have the ear of regulators that they tend to capture and what the modern and I you know my goal here isn't really to to debate a keel my goal here is to convince the people in this room that their vision of the Lochner Court is a mistaken one it's a distorted one it's a vision that doesn't concern the real Lochner case one other things with that is made this debate more interesting is that a keel is coming closer to the real Lochner than the one that you've read about in law school that your law professors told you about or even the Lochner that just - Chief Justice Roberts is is is talking about in his dissenting opinion in obergefell where he mentions Lochner 13 times as though simply incanting the word Lochner is a legal argument in and of itself that is my mission here and that I think Akhil and I you know have you know have our interests are somewhat aligned and in that world it's the individual who needs recourse to a impartial judicata in the form of a federal judge to protect the individual against organized groups who are able to secure special favors for themselves in ledges in state legislation and 132nd maybe note of agreement they there was a case judge higgenson was involved in involved evolving I think religious COFF COFF and makers I had some sympathy with the libertarian issue claims that actually did prevail in that case I don't think I've read the hair braider case but I've read accounts of it maybe on the vol conspiracy and this did not seem to me outlandish I did think that the attack on on individual mandate to somehow in themselves egregious was a bridge too far we've got some time for audience questions I see one over here and some mics are gonna travel to you we said I have one in the middle as a hand see that yep someone's coming towards you please a reminder a question always ends with a question mark that's how you know and you know occasionally one sentence introduction to your question is permissible but please know monologues sure so I want to start with this agreement that there is a role for the Jew Sheree to subject some scrutiny in terms of driving this is that agreement that at least Harlan's approach is is plausible and for developing public acceptance what will the language be for recognizing that you believe the state's lips judiciary sure you should do this but over the language before a state constitutional amendment to sort of restore these protections and require the courts to put in the screws so what what language would each of you each of you put in for that I'm not sure I understand the question the that's why I deferred to you in order to employed state courts back in the business of evaluating whether a particular law is arbitrary what what's sort of summarizing would we just take George Mason's language what language like to add to state constitutions to help get them ratified to win the public argument that this kind of scrutiny should be done by courts well I think the traditional language of irrational and arbitrary is the correct language in fact they're so-called modern rational basis test is building upon the traditional rationality inquiry it just does the home Xion approach of simply saying that as long as any reasonable person in the universe thinks this is okay it's constitutional but they're still it's still trading or borrowing on the historic argument about rationality rationality requires some means ends fit and the end has to be an appropriate end of government and that's some of what the disagreement is between Akhil and me as to what the appropriate end of government and how we would figure out what the appropriate end of government is then that's something that would take us beyond this debate but that is the main disagreement you're seeing between us and arbitrary in the sense that that's being applied to some people but it's not being applied to other people who are similarly situated suggesting something untoward is going on in fact the current doctor and ever since Williamson be the optical and this is something that justice Douglas promoted is that you know legislators couldn't legislate a piece at a time it doesn't you know they can legislate this person over here they don't have to legislate that person over there they can just handle things a piece that's just a way around the historic constraint on arbitrariness or it is arbitrary to legislate this person over here without also restricting the same kind of conduct by that person over there and that's the sort of inquiry so if you everyone anybody wants to see what the sort of inquiry that I would like to see done how it would work look at the lower court opinion in Williamson V Lee optical and how the three-judge panel evaluated the law that restricted an out-of-state corporation who really was not in the position to defend itself in front of the legislature that was the Lee optical corporation how it evaluated the rationality and arbitrariness of that law even giving the law Lakers the benefit of the doubt which they did in that case Gil did you want to speak to that or in fact we request you over here Marc Marc Chenoweth new civil liberties Alliance a couple of years before Lochner the same Supreme Court upheld an eight-hour maximum work day for public contracts in the state of Kansas at can be stayed yep and so my question for you professor Mars if the Lochner report was anti redistribute redistributionist then why did it uphold the state law in Kansas and my question for professor Barnett is it does the deference to the legislature that was shown by the Supreme Court and the Atkin case suggests that deference to legislators predated the Holmes dissent in Lochner yeah it was the last thing I that was the the deference predates the Holmes dissent in Lochner so the majority opinion Lochner has no good distinction for the kansas case which is highlighted by John Marshall Harlan in his dissent and remember I'm with the Descent okay so you're making my point it is not the case that the court in every single area as has been mentioned was sort of always on the wrong side but oh in a lot of cases they're striking down minimum wage laws and maximum our laws and plausible safety laws and redistributive tax laws and they're not doing it everywhere just because actually if that's irrational that's a lot a great mass of legislation and every so often they buy more than every so often they let stuff through but they deep down in Lochner think this is wrong and I think is permissible to try to actually for example have a tax code that's modestly redistributed and that tax code has lots of arbitrariness in it they want the one that we have today and the one that we're gonna have next year and I don't know if justice Barnett is going to you know invalidate all of that well actually I think it's important I should have probably said this earlier I think it's important to distinguish between redistribution that happens by means of taxing and spending and redistribution that happens by restricting the liberties of some as opposed to others the Lochner case involves the latter it doesn't involve the former and I think there's pretty note there's really no doubt that going back all the way to the founding there were poor laws for example at the founding so there was redistribution of the state level there was the founders found that that there was a problem with that because there was a lot of free writing and cheating evolved so they then developed work houses in order to say that you had to work if you're going to get support but the idea this was all of course redistributed but it was being it was using the power of taxing and spending in order to redistribute not using the power of regulation and Lochner today is a case not about redistribution it's a case about economic regulation and whether there needs to be judicial scrutiny to ferret out pretext that's the Lochner case that I'm talking about today we have a question from David Bernstein author of rehabilitating Walker [Applause] really Bernstein this is like 50 yard seats for the Super Bowl for me so this is great Oh thirty thirty years ago when almost are usually attended my first national feral society symposium if this had been the topic of debate it would have been nearly impossible to find someone on either side of a political spectrum who have taken the not crazy position and here we have to the greatest stars of the constitutional law world from there either side of the political spectrum arguing at least the locker wasn't crazy so I would just like to ask professor Barnett Professor armar to comment on what this tells us about the development of the federal society conservative jurisprudence a future of economic Liberty how constants will change happens more generally anything like that you're on it you want to go first in the long run I do think the law tends to work itself pure we say freedom of speech or freedom the press and then we don't do what we have the Sedition Act and it's upheld by Justice justices writing Circuit gleefully it it's in the 20th century Oliver Wendell Holmes for a unanimous court is willing to say Eugene Victor Debs the guy gets a million votes for president should go to prison for ten years for basically criticizing the war and it really does say freedom of speech and of the press and eventually the war in court you see catches up with that and it really does say actually I incorporation a senator Howard said it and Bingham and lots of others and the courts aren't doing that and then the Warren Court eventually does that these are two you go black themes five times it actually says in the Constitution today the right to vote Fourteenth Amendment section 215 amendment 19th amendment 24 26 and the courts aren't enforcing that see Justice Holmes in Giles V Harris and other cases and but eventually we catch up to that actually there really is a Tenth Amendment and when I'm in law school people kind of forget you know had forgotten about it but but it really does say it and and it has made a revival when Randy and I in Eugene bollock and others are first starting to write about the Second Amendment there's not a lot of case law at the Supreme Court level about it but it's made a revival the thesis of America's unwritten Constitution is in the long run the written text actually is important when stuff is really kind of way out of sync like Holmes who says the 14th amendment and the Constitution does not enact mr. Herbert Spencer social statics and it's great you know iambic meter you know does not enact mr. Herbert Spencer's social says he's great poetry I get it but Mr Justice Holmes what does it an act you see and he doesn't tell you that and in the long run my view is actually the case law eventually begins to correct itself a bit and and so it's a little like Princess Bride but the you know the text it's it may be mostly dead you know completely dead and it always has this possibility you know with the right kind of kiss to be yeah I think this is actually is a significant indicator of what's happened over the course of 30 years with the Federalist Society when the Federal Society was just getting going the primary mantra that existed amongst conservative lawyers was judicial restraint and it was a mantra that they essentially got from the progressives the post New Deal court was split between the old-fashioned progressive restraint judges and the newfangled judicial activist judges and that distinction in fact the term judicial activists was coined by Arthur Schlesinger jr. in a 1940's article in which he distinguished between the Lions of judicial self-restraint on the one hand like frankfurter and then the new Yale activists he associated with the a lot activists and the legal realists on the other hand and the federal and conservative judges conservative lawyers conservative movement people associated themselves with the restraints side of the post New Deal court and then what happened in the 1980s was elected and ed Meese came to town and ed Meese gave his famous speech to the ABA and in that he articulated a two-fold agenda one was restrained proper restraint so restraint hadn't been dropped but the other one was original ism the original meaning of the text is what we should follow that was not an emphasis amongst conservative lawyers prior to that it became an emphasis then Justice Scalia also in continued to make it an emphasis in what he was writing about and as a result of that is when we're talking but we then start to notice that there are many clauses of the Constitution that say what they mean and they are not ink blots and and they need to be paid attention to and it is not somehow improper for judges it is not a violation of some ethic for judges to try to enforce the entire Constitution including the parts that protect individual liberty better and so what's really happened I think is that the originalism on textualism part of the conservative agenda which we heard so eloquently last night from Don began when he said the philosophy of the judges that they're going to try to put on the court can be summarized in two words originalism and textualism there's no surprise that if you stress originalism and textualism you're going to get a more active judiciary but not an activist judiciary in any sort of pejorative word and i think it is the originalism having gotten traction over 30 years that has changed the discourse in the federal society for the better unfortunately we're almost out of time I thought it might be nice first end with a thought that I hope we can all agree on this is a passage from Lochner itself so that as Akhil points out they were at pains to emphasize the working conditions of the Baker's but the court says well but it's unfortunately true that labor even in any department may possibly carry with it the seeds of unhealth well unhealthiness a printer a tinsmith a locksmith a carpenter a cabinet maker dry goods clerk a banks a lawyers or a physician's clerk or a clerk of almost any kind might come under this path under the power of this assumption in our large cities there are many buildings into which the Sun penetrates for but a short time each day and these buildings are occupied by people carrying on the business of bankers brokers lawyers etc might be said it's unhealthy to work more than that number of hours in an apartment lighted by artificial light during the working hours the occupation of the banker and the lawyer etc might be unhealthy and I want to say it's we're thrilled that you've chosen to spend your Saturday afternoon with us but I do hope over Thanksgiving you will all get some Sun thanks George invaders thank you [Applause]

Channel: The Federalist Society

Views: 7,128

Rating: 4.860465 out of 5

Keywords: FedSoc2017, federalist society, nlc, law, lawyers, convention, conservative, libertarian, lochner v. new york, due process, supreme court, randy barnett, akhil reed amar, rosenkranz, 14th amendment, freedom of contract

Id: vca6JymWRhM

Length: 85min 37sec (5137 seconds)

Published: Sun Nov 19 2017

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From the description:

RESOLVED: Lochner v. New York: Still Crazy After All These Years.

The Tenth Annual Rosenkranz Debate was held on November 18, 2017, during The Federalist Society's 2017 National Lawyers Convention.

--Prof. Akhil Reed Amar, Sterling Professor of Law, Yale Law School

--Prof. Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

--Moderator: Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center

--Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

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