Today'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 United States Supreme Court and a justice on the Supreme Court of Texas. The latter is trouncing the former.
In his same-sex marriage dissent, John Roberts repeatedly denounced, with more animus than understanding, the U.S. Supreme Court's 1905 Lochner decision. In a recent opinion concerning occupational licensing in Texas, Justice Don Willett of the Texas Supreme Court demonstrates why America urgently needs many judicial decisions as wise as Lochner.
An 1895 New York law limited the hours 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 workers' hours. So, the U.S. Supreme Court properly declared the law an unconstitutional "interference" 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 workers' "physical and mental capacities to serve the state" and provide for dependents. Another dissent, by Oliver Wendell Holmes, was breezily and characteristically indifferent to details and to all rights but one: "The right of the majority to embody their opinions in law."
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Holmes claimed, falsely, that the Lochner majority gave constitutional status to "a particular economic theory," laissez faire. Actually, it affirmed America's foundational doctrine: Majorities cannot legislate away individuals' constitutional rights for preposterous or protectionist reasons. Many individuals used the Lochner 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 children's hair. Because such laws were enacted by legislatures, they presumptively embodied majority opinions, thereby satisfying Holmes' dogmatic majoritarianism and pleasing progressives by permitting unfettered government.
However, in his same-sex marriage dissent, Roberts referred to "the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner." But Lochner was not "unprincipled" unless the natural rights tradition (including the Declaration of Independence) and the Ninth Amendment ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people") involve no principles.
Oblivious of, or disregarding, evidence about the base motives behind the law Lochner overturned, Roberts repeated the myth that Lochner "convert[ed] personal preferences into constitutional mandates." Roberts expressed an aversion to what he oddly calls "implied" fundamental rights. And he denounced the "freewheeling notion of individual autonomy" affirmed by Lochner's recognition of "the general right of an individual to be free in his person and in his power to contract in relation to his own labor." Roberts praised as "judicial self-restraint" the Lochner dissenters' refusal to recognize that right.
Judges like Roberts consider it virtuous to refuse to closely examine and forthrightly invalidate laws that, like the one Lochner overturned, arise from disreputable motives and have unjust consequences. To such judges, Willett responds: "Judges exist to be judgmental, hence the title."
He addressed Lochner in an opinion concurring in a decision overturning an occupational licensing law. It imposed on aspiring eyebrow threaders -- disproportionately low-income minorities -- 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. Lochner asserted that "majorities don't possess an untrammeled right to trammel." Lochner meant that government must prove 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 government'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 that Lochner correctly reflected America's natural rights tradition and the Ninth and 14th Amendments' affirmation of unenumerated rights? To his first nominee, however, this president should simply say, "Welcome to Washington, Justice Willett."
George Will, Washington Post Writers Group. 1150 15th St. NW, Washington, D.C. 20071; email@example.com.