Lochner v. New York

So when you are traveling, and if you could talk a little bit about the work you've done, how do other countries view our Supreme Court and this lack of kind of this advisory board? I would love to hear about that.

So I would say, and I'm not speaking from experience now, but I think the history is important, the constitutional courts that were created in many European countries in the very early part of the 20th century were in part a reaction to the US Supreme Court's most notorious decisions, including Dred Scott and Lochner.

So Dred Scott is a case, which I'm sure, uh, many of us are familiar with, in which the Supreme Court said that Black people could never be citizens of the United States, and Dred Scott also said that Congress couldn't prohibit slavery in the territories, basically said the Missouri Compromise was unconstitutional.

And some European ob-observers looking at Dred Scott said, "Oh, that seems to be a very powerful court exercising a lot of power over things that affect the most fundamental questions [chuckles] of political questions of the future of this democracy."

Yes.

So, so that was that.

And also Lochner was a case in which state legislatures, including the legislature of New York, they were trying to regulate maximum hours of work and unsafe workplaces, and the Supreme Court comes in and says, "Oh, the Bill of Rights or, you know, the 14th Amendment protects the freedom of contract, and therefore, because there's freedom of contract, states can't actually try to protect workers because the workers' and employers' freedom of contract would be destroyed." And so a lot of European observers looked at that, and that they said, "Oh, the Supreme Court seems to be this massive policymaking body overriding what the democratic legislatures are quite reasonably doing to protect their people." So this created a real puzzle for them because, on the one hand, they understood, and this is an, a lesson that became even more powerful after their bouts with authoritarianism, but they understood that if a constitution is going to mean ev- anything, you need to constrain political actors, whether they're your legislature or your president or your executive.

You need to constrain them with some legal limits on their power.

So I would say, and I'm not speaking from experience now, but I think the history is important.

The constitutional courts that were created in many European countries in the very early part of the 20th century were in part a reaction to the U.S. Supreme Court's most notorious decisions, including Dred Scott and Lochner.

So Dred Scott is a case, which I'm sure many of us are familiar with, in which the Supreme Court said that Black people could never be citizens of the United States.

And Dred Scott also said that Congress couldn't prohibit slavery in the territories, basically said the Missouri Compromise was unconstitutional.

Yes.

So so that was that.

And also Lochner was a case in which state legislatures, including the legislature of New York, they were trying to regulate maximum hours of work and unsafe workplaces.

And the Supreme Court comes in and says, oh, the Bill of Rights or, you know, the 14th Amendment protects workers.

But at the time, sometimes in those cases, we actually would see federal courts then having to get into general principles of constitutional law and then have to resolve, you know, some transaction or dispute between the states.

And and it turns out sort of a lot of early, almost proto Lochner type cases can be found in this in this era where they're like they're enforcing fundamental rights.

Again, without really talking about where they come from, without saying they're federal law, just as a form of general law.

And again, because this is the era before Erie, where when a federal court sat in diversity, now when a federal court sits in diversity, their job is to be a potted plant and sort of like ask themselves, what would the state court do here? And then just do nothing any different than the state court would do.

Now, I think the other tricky thing is just that, you know, in general law principles, I mean, there were a lot of unenumerated rights and liberties, fundamental rights and liberties, but there were also a lot of recognitions of the police power and the ability of the state to reasonably regulate those fundamental rights and liberties.

And so the more you move these cases to federal court, the more you're going to really put pressure on the question of when is a regulation reasonable and who decides.

And One way that leads you is to Lochner, which some people think is very bad.

Um, other people think, you know, maybe it's very necessary, but that's the, and there's a way in which, you know, they were thinking of the easiest case.