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.


Author’s reply: David E. Bernstein, Foundation Professor, George Mason University, School of Law. Email: dbernste [at] gmu.edu.

(Editor’s note: The following is a comment on a recently published review. LPBR welcomes such comments and invites submissions to the editor.)

I am writing in response to George W. Liebmann’s review of my book, REHABILITATING LOCHNER: DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM, that appeared in Volume 21, No. 7 of LPBR.

To borrow a phrase from Liebmann, his review is not without its merits. But I feel moved to respond for several reasons.

First, Liebmann begins his review by claiming that the book is “essentially a brief for ‘conservative’ judicial activism,” and he later advises that I implicitly call for a “return to economic due process.” This is incorrect. REHABILITATING LOCHNER is a work of history. It concludes that LOCHNER v. NEW YORK “has been treated as a unique example of constitutional pathology to serve the felt rhetorical needs of advocates for various theories of constitutional law, not because the decision itself was so extraordinary, its consequences so bad, or its anti-statist presumptions so clearly expelled from modern constitutional law.”(page 6)

But the book draws no normative conclusions about current constitutional practice and indeed explicitly disclaims such conclusions. As I write on page six of the book, “even the soundest history cannot provide a theory of constitutional interpretation, nor can it dictate one’s understanding of the proper role of the judiciary in the American constitutional system.” The history I present, therefore, is inherently agnostic on whether LOCHNER or any other case discussed in the book was correctly decided, much less on the proper outcome of broad contemporary debates about “judicial activism.” Liebmann should have reviewed the book that was actually written, not the strawman-of-a-book that he proceeds to knock down.

Second, Liebmann engages in a gratuitous and unfair attack on two of the book’s blurbers, Yale Law School’s Jack Balkin and Harvard Law School’s Mark Tushnet. Tushnet and Balkin are serious scholars with very different views on constitutional interpretation. Lumping them together dismissively as defenders of “fashionable ‘liberal’ jurisprudence,” as Liebmann does, is insulting and uncalled for. To make matters worse, Liebmann misquotes Tushnet. And, Liebmann never manages [*425] to explain why if the book is a “brief for conservative judicial activism,” it has “been acclaimed” by “defenders of fashionable liberal jurisprudence.”

Finally, Liebmann’s review displays, at best, a very sloppy reading of the text. For example, he claims several times that I posit that Justice Oliver Wendell Holmes, Jr., was influenced by German positivism. That assertion does not appear in the book.

Liebmann also writes that I “frequently invoke[] the natural law tradition.” He then spends a paragraph chastising me for not discussing the views of natural law scholars like Aquinas. Actually, I frequently invoke the natural rights tradition associated with, for example, John Locke, Thomas Jefferson, and many antebellum abolitionists. I don’t know whether Liebmann doesn’t understand the distinction between natural rights and natural law, or if he was simply too careless to notice his error. Either way, it doesn’t exactly lend credibility to his review.

© Copyright 2011 by the author, David E. Bernstein.