Russell and Duenes

Would Oliver Wendell Holmes Be Confirmed as a Supreme Court Justice Today?

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In Lochner v. New York, the Supreme Court struck down a New York statute that limited bakers from working longer than 10 hour days or 60 hour work weeks. Justice Rufus Peckham, writing for the majority, said that the New York statute limiting working hours for bakers did not pass constitutional muster because it did not properly address any health issues pertinent to bakers, and therefore, because Americans have a constitutional right to freedom of contract, the state could not properly limit the number of hours people contract to work, unless some other more important fundamental right overrode the freedom of contract, such as health.

In support of his holding, Justice Peckham argued that “[t]he right to purchase or to sell labor is part of the liberty protected by [the 14th] amendment, unless there are circumstances which exclude the right.” Thus, Peckham held that “it becomes of great importance to determine which shall prevail, – the right of the individual to labor for such time as he may choose, or the right of the state to prevent the individual from laboring, or from entering into any contract to labor, beyond a certain time prescribed by the state.” Ultimately, the Court decided that “[t]here is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of baker.”

But upon what constitutional basis did Justice Peckham reach this conclusion? For it seems clear that such a right to “freedom of contract” is found nowhere in the text of the Constitution. Indeed, according to Hadley Arkes, in Constitutional Illusions and Anchoring Truths, Robert Bork said of Peckham’s decision, that it “lives in the law as a symbol, indeed the quintessence, of judicial usurpation of power . . . . To this day [says Bork], when a judge simply makes up the Constitution, he is said ‘to Lochnerize,’ usually by someone who does not like the result.” (pgs.79-80). This finding of rights not specifically listed in the Constitution, is what has been termed “substantive due process.”

But what of this “substantive due process?” Importantly, it’s what supports Roe v. Wade and its progeny. As all acknowledge, there is nothing in the Constitution about a “right to abortion.” So where did the Court find the right to it back in 1973? You guessed it: Substantive Due Process. It’s one of those “rights” that we apparently “know” we have, and that is protected by the constitutional guarantee of “liberty,” even though the Constitution nowhere talks about it and a good many states had laws prohibiting it. As Arkes points out, such application of substantive due process is the hallmark of liberal jurisprudence today. Indeed, Robert Bork was trashed, tarnished, and banished from confirmation as a Supreme Court justice precisely because he argued against notions of substantive due process. As Arkes argues: “Bork, we will remember, got himself into some unexpected trouble because of the criticism he directed at Griswold v. Connecticut, with its new doctrines of ‘privacy.'” (p. 82).

Which brings me to Oliver Wendell Holmes, no hero of conservatives, he. Generally, he would be thought of as a champion of progressivism, yet in his dissent in Lochner, he derides Justice Peckham for finding a right to freedom of contract. Holmes wonders from what magical thin air Peckham pulled such a “right.” He says, “It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract.” But wouldn’t this mean that “state constitutions and state laws may regulate” abortion, even if some judges, perhaps Justice Holmes, would find such laws “tyrannical?” Indeed state laws were imposing just such regulations on abortion prior to Roe. Thus, it’s Holmes’ argument, not Peckham’s, that would raise the hackles of the pro-abortionists in the Senate today. As Arkes concludes, “The irony here is that, if we sought today to quarrel with Peckham, it could only be on the basis of the jural groundwork that Peckham had written so precisely to sustain. It certainly could not be on the grounds of the positivism that led Holmes and Hugo Black to reject the jurisprudence of Lochner. For almost no one, today – not even the jural conservatives – is willing to suspend judgment so uncritically and honor virtually anything that a legislature has ‘posited’ as law through the vote of a majority.” (p. 106) (italics mine).

Thus, it seems highly unlikely that Justice Holmes could make it on to the high Court today. His jurisprudence would be too threatening to Roe. He’d get “Borked.”

-D

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Written by Michael Duenes

September 5, 2012 at 6:32 pm

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