Wednesday, March 24, 2010

Thoughts Concerning Lochner v New York: Justice Holmes' Dissent

Lochner v The State of New York
198 U.S. 45
Argued February 23, 24, 1905.
Decided April 17, 1905.

Lochner is, in many ways, the most abused case ever to have been decided by the Supreme Court. While the issue of how many hours a person may work in a confectionery bakery is not particularly salient any longer, ideas such as the right of contract, judicial activism, and states' rights are, all of which are touched upon in this short case. I intend to skip over the majority decision and focus on the famous dissent of Justice Oliver Wendell Holmes, Jr. For the record, I believe the Court erred in its decision. The Court overstepped its boundaries in telling a particular state what it may or may not do, so long as due process is followed.

Justice Holmes' extremely short dissent is remarkable for the heights of wisdom and the depths of folly it achieves in so short a space:

"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."

Consider these three sentences. In the first sentence, Justice Holmes' errs in believing the case was decided by an economic theory rather than a constitutional theory, namely that the 14th Amendment prevents states from unduly taking away liberty or property. Regardless of the merits of that philosophy, it is inherently a judicial rather than economic theory. In the very next sentence, Mr. Holmes describes what a judicial activist, legislative from the bench, would do if that justice believed the Court should base controversies based on their opinion of the facts at hand rather than on the law. He rightly condemns this stance, but then proceeds to go too far by apparently stating the majority may impose any such law it wishes, when our Founding Fathers set up our government in a way as to specifically avoid tyrannies based upon majority factions. Indeed, Justice Holmes goes so far as to say apparently tyrannical state laws cannot be overturned by the Court, which I believe goes much too far and ignores both the 14th Amendment and Article IV, Section 4 of the Constitution, providing for a republican form of government to the states.

"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 Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics."

Whether he meant to do so or not, Justice Holmes rightly points out that all government taxation and regulation is restrictive upon personal liberty. Here we come to the crux of the matter. We establish government solely in order to safeguard the rights of Life, Liberty, and the Pursuit of Happiness (paraphrased version of property, courtesy of the philosopher John Locke), as is stated in our Declaration of Independence. Governments which become destructive to those ends may be abolished, according to that same Declaration. Government requires a sacrifice of some of these rights to protect the rest, but where is the line to be drawn? At what point does the government cease to be the protector of these God given rights and transform into the greatest threat instead? Justice Holmes gives no answer, but his willingness to abide by the decision of any majority is distressing to an extreme.

"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."

Justice Holmes is correct in a technical sense that our Constitution does not blatantly adopt any particular economic theory, but he is wrong to assume all economic theories can be compatible with the Constitution. A paternalistic state, by definition, removes people from the pursuit of happiness and substitutes itself in their place, assuming the government knows better for the people's well being than the people do. Every tyrant believes the same. Should individuals be debased enough to despise the pursuit of happiness in their own lives and wish to outsource those decision to another is their own personal decision, but to impose that notion, with force, on others who do not agree is to deny them one of their inalienable rights. Overarching governments leave no outs for those who wish to live their own lives; they face a government perverted in its aims, destroying our rights rather than preserving them.

"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 14th 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."

The very reason we have this Constitution, with the Bill of Rights and succeeding Amendments, is to prevent the "dominant opinion" from being imposed tyrannically! Just about any dominant opinion is likely to be met by a minority opinion, composed of rational and fair men who believe the proposed statute infringe upon fundamental principles as have been understood throughout the history of our nation. Liberty means to be free to act or not as we see fit; a dominant opinion that forces us to act or not act in a particular way is the exact opposite of liberty.

Justice Holmes illustrates two extremely important principles for our judiciary, though he only seems to agree with one of them. In the first, justices must respect the rule of law and put this higher than their own policy judgments. We elect legislators to create the law; we place justices on the bench to make rulings based on those laws, not their own desires. But secondly, the Constitution is the supreme law of the land, which no majority may override save by a Constitutional Amendment. Wherever the government and the dominant opinion overstep their enumerated powers, wherever they cease to be the protectors of our unalienable rights and transform into the greatest threat instead, the judiciary must step in. While we cannot abide judicial activism, judicial abandonment is the equivalent of abandoning the concept of limited government and individual rights in favor of an unchecked tyranny of the majority.

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