Todayâ??s most interesting debate about governance concerns a 110-year-old Supreme Court decision. Two participants in this debate are the chief justice of the U.S. Supreme Court and a justice on the Supreme Court of Texas. The latter is trouncing the former.
In his same-sex marriage dissent, John G. Roberts Jr. repeatedly denounced, with more animus than understanding, the U.S. Supreme Courtâ??s 1905Â LochnerÂ decision. In a recent opinion concerning occupational licensing in Texas, Justice Don Willett of the Texas Supreme Court demonstrates why the United States urgently needs many judicial decisions as wise asÂ Lochner.
An 1895 New York law limited the hours that bakers could work daily and weekly. Ostensibly health and safety legislation, it actually was rent-seeking by large, unionized bakeries and their unions. They wanted to crush their small, family-owned, nonunionized competitors that depended on flexible work schedules. New York, defending the law, presented no evidence that baking wholesome bread is an especially unhealthful occupation or requires limiting workersâ?? hours. So, the U.S. Supreme Court properly declared the law an unconstitutional â??interferenceâ?ť with an unenumerated (by the Constitution) right of individuals to liberty of contract.
The main dissent, suffused with progressive statism, said government may limit working hours to preserve workersâ?? â??physical and mental capacity to serve the stateâ?ť and provide for dependents. Another dissent, by Oliver Wendell Holmes, was breezily and characteristically indifferent to details and to all rights but one: â??The right of a majority to embody their opinions in law.â?ť
Holmes claimed, falsely, that theÂ LochnerÂ majority gave constitutional status to â??a particular economic theory,â?ť laissez faire. Actually, it affirmed the United Statesâ?? foundational doctrine: Majorities cannot legislate away individualsâ?? constitutional rights for preposterous or protectionist reasons. Many individuals used theÂ LochnerÂ precedent to challenge, with mixed results, laws declaring women unsuited to practice law or be bartenders, prohibiting interracial marriages, enforcing restrictive real estate covenants, or forbidding black barbers from cutting white childrenâ??s hair. Because such laws were enacted by legislatures, they presumptively embodied majority opinions, thereby satisfying Holmesâ??s dogmatic majoritarianism and pleasing progressives by permitting unfettered government.
Oblivious of, or disregarding, evidence about the base motives behind the lawÂ LochnerÂ overturned, Roberts repeated the myth thatÂ LochnerÂ â??convert[ed] personal preferences into constitutional mandates.â?ť Roberts expressed an aversion to what he oddly calls â??implied fundamental rights.â?ť And he denounced the â??freewheeling notion of individual autonomyâ?ť affirmed byÂ Lochnerâ??s recognition of â??the general right of an individual to be free in his person and in his power to contract in relation to his own labor.â?ť Roberts praised as â??judicial self-restraintâ?ť theÂ LochnerÂ dissentersâ?? refusal to recognize that right.
Judges like Roberts consider it virtuous to refuse to closely examine and forthrightly invalidate laws that, like the oneÂ LochnerÂ overturned, arise from disreputable motives and have unjust consequences. To such judges, Willett responds: â??Judges exist to be judgmental, hence the title.â?ť
He addressedÂ LochnerÂ in anÂ opinionÂ concurring in a decision overturning an occupational licensing law. It imposed on aspiring eyebrow threaders â?? disproportionately low-income minorities â?? burdensome requirements of cosmetology training having no rational relationship to public health or safety. Instead, the law erected barriers to entry into a profession, benefiting entrenched practitioners who are averse to competition.
Threaders without licenses are, Willett said, less dangerous than government with an unlimited license to decide who gets bureaucratic permission to pursue particular vocations.Â LochnerÂ asserted that â??majorities donâ??t possess an untrammeled right to trammel.â?ťÂ LochnerÂ meant that government mustÂ proveÂ the public necessity of its restrictions of economic liberty. Sensible judicial deference to government regulations does not require judicial dereliction of its duty to gaze skeptically on governmentâ??s often ridiculous rationalizations of them. Since the New Deal, when courts abandoned protection of economic liberty, government has felt no obligation to produce evidence of the rationality of its restrictions. So, disreputable reasons go unchallenged.
The next Republican president should ask this of potential court nominees: Do you agree thatÂ LochnerÂ correctly reflected the U.S. natural rights tradition and the Ninth and 14th amendmentsâ?? affirmation of unenumerated rights? To his first nominee, however, this president should simply say, â??Welcome to Washington, Justice Willett.â?ť