George Will strikes at the heart of modern liberalism this morning with his discussion of David Bernstein’s new book, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform, co‐published by Cato and the University of Chicago Press. As Will concludes:
Long execrated by most law professors, Lochner is the liberals’ least favorite decision because its premises pose a threat to their aspiration, which is to provide an emancipation proclamation for regulatory government. The rehabilitation of Lochner is another step in the disarmament of such thinking.
That gets it exactly right. In fact, this new book by Bernstein, a Cato adjunct scholar, is the fourth in a series of books Cato has lately published, all of which are aimed at disarming those who’ve given us the modern redistributive and regulatory state.
Start with Richard Epstein’s How Progressives Rewrote the Constitution and you’ll see the roots of modern “constitutional law” – not to be confused with the Constitution itself – in the thinking of the Progressives, 30 and more years before the New Deal Court instituted that “law.” As Epstein writes: the Progressives “were determined that their vision of the managed economy should take precedence in all areas of life. Although they purported to have great sophistication on economic and social matters, their understanding was primitive. The Progressives and their modern defenders have to live with the stark truth that the noblest innovations of the Progressive Era were its greatest failures.”
Then go to Tim Sandefur’s The Right to Earn a Living: Economic Freedom and the Law and you’ll see what Progressivism has wrought in the way of impediments to economic freedom. Sandefur traces the natural and common law origins of the fundamental right to earn a living and shows, through modern cases, some of which he himself has litigated, how this right has been thoroughly compromised by the Progressive thinking George Will excoriates this morning.
Finally, to sink your teeth into a detailed history and analysis of the right to freedom of contract, you can do no better than to read David Mayer’s new book Liberty of Contract: Rediscovering a Lost Constitutional Right. The book shatters myths that scholars have created about the Progressive Era, including the notion that the Court was reading a “laissez‐faire” ideology into the Constitution – as Justice Oliver Wendell Holmes asserted in his Lochner dissent.
And before I forget it, you’ll find these themes throughout the new Cato Supreme Court Review, due out next Thursday. Read all of this and you’ll be well armed to disarm the Progressive thinking that today is increasingly on the ropes, and rightly so.