by David E. Bernstein. Chicago: University of Chicago Press, 2011. 208pp. Cloth. $45.00 ISBN: 9780226043531. E-book. $7.00 to $45.00. ISBN: 9780226043180.

Reviewed by George W. Liebmann, Liebmann and Shively, P.A. of Baltimore and Visiting Fellow of Wolfson College, Cambridge. Email: george.liebmann2 [at]


This tendentious monograph is essentially a brief for ‘conservative’ judicial activism. It has been acclaimed by some defenders of fashionable ‘liberal’ jurisprudence like Jack Balkin and Mark Tushnet for disclosing “attractive resources in libertarian themes” and “discordant undertones [to] progressive themes.” Its villains are the ‘progressive’ judges: Holmes (the arch-villain), Brandeis, Frankfurter and Learned Hand; the role of Charles Evans Hughes is curiously slighted. A new generation of law students is to be taught that these judges were indifferent to state-imposed racial segregation, sex-specific labor laws, restrictions on private schooling and coercive eugenics and were “products of their prejudiced times,” Mr. Bernstein’s era being one of true enlightenment. Holmes is charged, not for the first time, with rejecting ‘natural law’ in favor of ‘German legal positivism.’ What is implicitly sought are judges who will return to an alleged libertarian ‘mainstream’ in politics and economics, in which “individual rights” are sustained against the assumed arbitrariness of legislatures by periodic forays by wise judges enforcing “natural rights” and condemning “class legislation.”

The monograph has its virtues. It exhausts the secondary law review literature on its subjects (though scarcely touching the historical and economic literature). Its prose is compressed and clear, though marred by the increasingly fashionable use of contractions and colloquialisms; there are many “didn’t”s and “won’t”s; the apostrophe appears to be the author’s favorite punctuation mark. We are thankfully spared the academic “liberal’s” promiscuous scattering of feminine pronouns. The proofreading is generally good, though there is one memorable howler; Holmes is converted into a born-again monarchist by a quotation (page 147 n.135) “I see no meaning in the rights of man except what the crown will fight for.” It is not the first book on the Lochner case; Paul Kens’ LOCHNER v. NEW YORK: ECONOMIC REGULATION ON TRIAL (1998) is more thorough and even-handed.

Professor Bernstein begins his historical account with the assertion that Dred Scott was not the first manifestation of substantive due process, pointing out that the Free Soil Party and the 1856 and 1860 Republican platforms advanced similar theories on the opposing side. This is certainly true, but no reader of the Lincoln-Douglas debates let alone the literature collected in Edmund Wilson’s PATRIOTIC GORE can doubt that competing constitutional [*389] fundamentalisms were a major cause of the Civil War. Prudential arguments, and the meliorative legislation they might have inspired, were lacking. As the Harvard philosopher William Ernest Hocking observed about abuses by the reactionary Weimar judiciary: “Right is psychologically a claim whose infringement is met with a resentment deeper than the injury would justify, a resentment that may amount to a passion for which men will risk life and property as they would never do for an expediency.”

There was, in fact, little case law supporting LOCHNER’s notion of liberty of contract. DRED SCOTT and the highly general language of WYNEHAMER v. PEOPLE were scarcely compelling precedents. Paul Kens (2010) in his study of the Waite court (observed: “Rather than being an inevitable continuation of tradition, the theories that drove laissez-faire constitutionalism were a revolutionary break with long-standing constitutional tradition – a tradition that emphasized popular sovereignty and the rights of the community” (p.171) ”Their theory of substantive due process . . . was more akin to a revolution. . . it would turn debates over economic regulation into matters of individual rights rather than public policy. It was, in other words, an earlier version of the ‘rights talk’ that modern conservatives so disdain. Although its target may have been different, it had the same consequence of undermining political dialogue” (pp.10-11).

LOCHNER, Bernstein becomingly concedes, was in no small measure due to the ineffective brief filed by the State of New York (p.32). This insight, regrettably, is not pursued further. The dislike of the ‘progressive’ judges for judicial review was founded on suspicion of the process as well as its results. Constitutional discourse involves the use of specialized skills and language, and gives the rich and well-organized at any time a powerful advantage. In our time, youthful assistant state attorneys general or assistant county solicitors are called upon to do battle, at a moment’s notice, with powerful corporate or advocacy groups that have spent years preparing their cases. Constitutional litigation is a game played “on a cloth untrue, with a twisted cue, and elliptical billiard balls.” The judicial restraint preached by Holmes and his followers rested on the view that the legislative process disclosed more facts relating to public policies, and that its results usually accommodated more interests and were less immutable than those decreed by judges. Certainly, Brandeis believed as much; he was no fan of some of the legislation he voted to sustain, the certificates of convenience and necessity involved in the Oklahoma ice case providing an example. Nor were Holmes and Learned Hand (“the filii aurorae make me ill”) enthusiasts for all ‘progressive’ legislation. The insight that they shared was that attributed to Holmes by Louis Menand in a chapter of his book THE METAPHYSICAL CLUB: that counting heads is better than breaking them. The jurisprudence sought to be fostered by this book will, if carried further, lead to a great deal of breaking of heads. Bernstein quotes from Holmes’ dissent in LOCHNER, but he leaves out its key passage: “[the constitution] is made for people of fundamentally differing views.” [*390]

Holmes, Bernstein accurately says “was a democrat not because he was a progressive but because he saw democracy as a relatively peaceful way for individuals to engage in the Darwinian struggle for survival”(p.46). Bernstein characterizes Holmes’ “idea that the Constitution is, and was meant to be neutral as between individualist and collectivist economic and social systems” as “this radical sentiment . . . beyond the pale”(pp.36-37).

Holmes’ ‘radical sentiment’ also inspired Charles Evans Hughes’ opposition to the expulsion of Socialists from the New York legislature. It was even not lost on Mr. Justice Day who in a little-remembered unanimous opinion insisted that the Court refrain from interference with the closest American approach to state socialism, the legislative package enacted by the Non-Partisan League in North Dakota (GREEN v. FRAZIER, 253 U.S. 233 (1920)).

Bernstein asserts that Holmes’ doctrines were eclipsed after the Second World War because Nazi behavior discredited “German legal positivism, which strongly influenced progressives.” This is simply a smear. The evidence for the influence, even on Holmes, of German legal positivism is slight. Carl Schmitt, its best-known exemplar, is cited not at all in the Holmes-Laski and Holmes-Pollock letters; as for Hegel, Holmes observed "he has not succeeded in convincing me that the King of Prussia was God, in his day” (1 Holmes-Pollock Letters, 188). The influence of English legal positivism, that of Austin and others, persists to this day; even with the adoption of the European Convention on Human Rights, Parliament has the last word in England. And there is no judicial veto over statutes.

It is strange that a writer who so frequently invokes the ‘natural law’ tradition has so little to say about its fundamental texts and interpreters. For natural law as expounded by writers from Aquinas onward is not inconsistent with legal positivism; it defines not the content of the law but the circumstances under which it may legitimately be defied, and admonishes its adherents to ‘render unto Caesar.” For Aquinas the legitimate functions of the magistrate were limited to corrective or commutative justice, the vindication of settled expectations. Distributive justice was a matter for rulers, whether monarchs or legislatures. As stated by Russell Hittenger (2003, p. 112), "even in the extreme case of refusing to render judgment, the judge, insofar as he is a judge, is not entitled to plough ahead and substitute his own law for that of the legislator” (p.112).

Bernstein’s other favored reviewing principle, the cry of “class legislation,” was met with Holmes’ observation that all legislation is class legislation. Like ‘natural rights,’ it too is too indefinite to provide anything but an excuse for expanding the discretionary power of unelected judges.

Bernstein accurately notes that much of today’s individual rights jurisprudence, including ROE v. WADE, rests on a foundation provided by Justice Mc Reynolds’ opinions in MEYER v. NEBRASKA and PIERCE v. SOCIETY OF SISTERS (p.116). Holmes, Hand and Frankfurter agreed with the results in these decisions but accurately forecast that the decisions were not worth the [*391] trouble they would cause. In fact the legislatures that enacted the nativist laws in Nebraska and Oregon were rather swiftly turned out of office.

Bernstein might with equal accuracy have said that ROE was anticipated by the ‘progressive’ case of BUCK v. BELL. Professor Fowler Harper of the Yale Law School, the architect of the GRISWOLD-ROE litigation campaign was himself, as Bernstein notes, an enthusiast for mandatory eugenics, (p.98 n.75) and Mr. Justice Blackmun, a child of the twenties, enthusiastically cited BUCK v. BELL in ROE v. WADE.

The return to economic due process for which this book implicitly calls is especially unwelcome in view of recent developments in federal judicial procedure. The fact-finding contemplated by the federal discovery rules is increasingly truncated by expedited summary judgments and the motions to dismiss revived by the recent IQBAL case, as well as by tightened rules governing expert testimony. Under the pressures of the ‘drug war’ and federal sentencing guidelines, the federal civil jury as a check on judicial prejudices has virtually disappeared, and its role in criminal cases has been reduced.

Bernstein also credits the ‘natural rights’ tradition for that most embarrassing of ‘due process’ cases, BOLLING v. SHARPE (pp.87-88) condemning school segregation in the District of Columbia, which might better have been rested on the frontispiece of the Fourteenth Amendment (“All persons born or naturalized in the United States are citizens of the United States’). The ‘conservative’ justices are also acclaimed for having anticipated the women’s rights jurisprudence of Ruth Bader Ginsburg in their condemnation of sex-specific protective labor legislation. But each day lends further credence to Justice Holmes’ observation, dissenting in ADKINS: “It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women or that legislation cannot take the differences into account.” Typical of later developments is the demise of the ‘maternal preference’ rule in child custody cases, a resultant weakening of the position of women in child support negotiations, followed by a ‘cure’ in the form of rigid and complicated child support formulas that have been a great boon to the accounting profession.

Bernstein ascribes to the ‘progressive’ justices a callousness about race relations, a charge not good against Hughes whose opinions on race relations in the thirties laid the foundation for what followed and had the added merit of incontestable logic and a charge also not good against Frankfurter who went to and beyond the limits of judicial propriety in fostering the result in BROWN v. BOARD OF EDUCATION. Holmes’ opinion in FRANK v. MANGUM was the first of the fourteenth amendment due process cases, while Learned Hand in his Holmes lectures recognized that a decision condemning all racial discrimination would be legitimate, though its legitimacy rested on civil war and new doctrines requiring the use of force were to be avoided.

It is true, as Bernstein says, that the ‘progressive’ justices viewed individual rights of free speech and to some extent [*392] fair trial as not absolute values but values incidental to the maintenance of a free political system. In their view, the function of judges was the protection of the political system, allowing freedom of revision, not the imposition of their own views of the true and beautiful in either morals or economics. That is not a fashionable view of the judicial function in our time, but it is a correct one. "Our system, abuse it as you will, at least gives a bloodless measure of social forces – bloodless, have you thought of that? – a means of continuity, a principle of stability, a relief from the paralyzing terror of revolution.” (Hand, 1960, p.98)

Hand, Learned. 1960. "Democracy: Its Presuppositions and Realities," in I. Dilliard (ed.), THE SPIRIT OF LIBERTY (New York: Knopf).
Kens, Paul. 1998. LOCHNER v. NEW YORK: ECONOMIC REGULATION ON TRIAL. Lawrence: U. Press of Kansas.
Kens, Paul. 2010. THE SUPREME COURT UNDER MORRISON R. WAITE, 1874-1888. Columbia: U.of South Carolina.
Liebmann, George W. 1998. THE GALLOWS IN THE GROVE: CIVIL SOCIETY IN AMERICAN LAW. Westport,CT: Praeger.

ADKINS v. CHILDREN'S HOSPITAL 261 U.S. 525 (1923).
BOLLING v. SHARPE 347 U.S. 497 (1954).
BROWN v. BOARD OF EDUCATION 347 U.S. 483 (1954).
BUCK v. BELL 274 U.S. 200 (1927).
FRANK v. MANGUM 237 U.S. 309 (1915).
GREEN v. FRAZIER, 253 U.S. 233 (1920).
LOCHNER v. NEW YORK 198 U.S. 45 (1905).
MEYER v. NEBRASKA 262 U.S. 390 (1923).
NEW STATE ICE CO. v. LIEBMANN 285 U.S. 262 (1932).
PIERCE v. SOCIETY OF SISTERS 268 U.S. 510 (1925).
ROE v. WADE 410 U.S. 113 (1973).
SCOTT v. SANDFORD 60 U.S. 393 (1857).
WYNEHAMER v. PEOPLE 13 N.Y. 378 (1856).

© Copyright 2011 by the author, George W. Liebmann.