Justice Holmes and the Empty Constitution (Part 2)

In Part 1, we saw that the Lochner saga began in 1895, when the state of New York enacted a law setting maximum hours for bakers. Joseph Lochner appealed his conviction under that law all the way to the U.S. Supreme Court. New York argued that its law was a proper exercise of the “police power” aimed at promoting worker health. But in a 1905 decision, the Supreme Court struck down the law as violating the “right of contract between the employer and employees.” In Part 2, we’ll examine Justice Holmes’s dissenting opinion in detail.

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Holmes in Dissent: The Empty Constitution

Uninterested in whether or not the Bakeshop Act was a health law, Holmes devoted only a single line of his dissent to the issue: “A reasonable man might think it a proper measure on the score of health.”¹ As one commentator noted, he “entirely ignored his colleagues and refused to engage in their debate about how to apply existing legal tests for distinguishing health and safety laws from special interest legislation.”² Holmes, who has been called “the finest philosophical mind in the history of judging,” had more profound issues on his mind.³

Peckham’s majority opinion had been based on the premise that the Constitution protects individual liberty, including liberty of contract. Holmes attacked that premise outright. How could liberty of contract possibly be a principle capable of yielding a decision in Lochner’s case, Holmes asked, when violations of such liberty are routinely permitted by law? “The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same,” Holmes observed, “is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.” For good measure, he cited several cases in which the Court had recently approved laws prohibiting lotteries, doing business on Sunday, engaging in usury, selling stock on margin, and employing underground miners more than eight hours a day—each law a clear interference with contractual liberty. “General propositions do not decide concrete cases,” Holmes nonchalantly concluded—and what judge could have shown otherwise, given the state of American jurisprudence at the time?

With “liberty of contract” in tatters, Holmes could casually dismiss it as a mere “shibboleth,” a subjective opinion harbored by five justices that has no proper role in constitutional adjudication.⁴ To drive home his contempt for the majority’s approach, Holmes included in his Lochner dissent a snide, sarcastic gem that has become the most quoted sentence in this much-quoted opinion: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”⁵ For a modern reader to grasp the meaning of this reference, some factual background is required. The English author Herbert Spencer (1820–1903) was a prominent intellectual whose most important book, Social Statics,was originally published in 1853 and reissued continually thereafter. “In the three decades after the Civil War,” one historian has written, “it was impossible to be active in any field of intellectual work without mastering Spencer.”⁶ Central to Spencer’s thinking was a belief that our emotions dictate our moral values, which include an “instinct of personal rights.”⁷ That “instinct” Spencer defined as a “feeling that leads him to claim as great a share of natural privilege as is claimed by others—a feeling that leads him to repel anything like an encroachment upon what he thinks his sphere of original freedom.”⁸ This led Spencer to conclude: “Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.”⁹ Holmes, by coyly denying that Spencer’s “law of equal liberty” had the solemn status of a constitutional principle, masterfully conveyed two points: that any principle of individual liberty must emanate from a source outside the Constitution, not within it — and that the Peckham majority’s “liberty of contract” had the same intellectual status as Spencer’s emotionalist rubbish. “All my life I have sneered at the natural rights of man,” Holmes confided to a friend some years later.¹⁰ But in a lifetime of sneering, Holmes never uttered a more damaging slur than this offhand reference to Herbert Spencer’s Social Statics.

In order to mock “liberty of contract” as nothing more than a reflection of the majority’s tastes in popular reading, Holmes had to evade large swaths of evidence tending to show that the Constitution indeed embodies a substantive commitment to individual liberty. In the Declaration of Independence, the Founders clearly stated their intent to create a government with a single purpose — the protection of individual rights to life, liberty, and the pursuit of happiness. Consistent with the Constitution’s Preamble, which declares a desire to “secure the blessings of liberty to ourselves and our posterity,” every clause in the Bill of Rights imposes a strict limit on government’s power over individual liberty and property. In addition, Article I forbids the states to pass any law “impairing the obligation of contracts.”¹¹ And to prevent future generations from interpreting such clauses as an exhaustive list, the Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

To be sure, the Constitution’s basic principle was undercut by important omissions and contradictions, the most serious being its toleration of slavery at the state level. But the Civil War tragically and unmistakably exposed the evil of a legal system that allows state governments to violate individual rights.¹² Immediately after that war’s end, three constitutional amendments re-defined and strengthened the federal system, elevating the federal government to full sovereignty over the states and extending federal protection to individuals whose rights might be violated by state legislation. Two of these amendments were quite specific: The Thirteenth banned slavery, and the Fifteenth required that blacks be allowed to vote. But the Fourteenth Amendment’s reach was much broader. Not only did it endow individuals with federal citizenship, it also specified that no state government shall “abridge the privileges or immunities”¹³ of any citizen or deprive any person of “life, liberty, or property, without due process of law.”

In light of this context, no honest jurist in 1905 could deny that the Constitution embodies certain views on the proper relationship between the individual and his government. Reasonable disagreements might concern how that basic framework should guide interpretation of the document’s express language, but no such disagreement could obscure the fact that the Constitution was chock-full of substantive content. Yet it was precisely this fact that Holmes now urged the Court to evade. The same compromises and exceptions that rendered “liberty of contract” an easy target in Holmes’s attack on the Lochner majority also lent plausibility to his wider assault on the notion that America’s Constitution embodies any principles at all. A constitution, he wrote, “is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” As is evident from the two illustrations he chose, Holmes was using “economic theory” to mean a principle defining the individual’s relationship to the state. His first example, “paternalism and the organic relation of the citizen to the state,” refers to the Hegelian view that a nation, in one philosopher’s description, “is not an association of autonomous individuals [but] is itself an individual, a mystic ‘person’ that swallows up the citizens and transcends them, an independent, self-sustaining organism, made of human beings, with a will and purpose of its own.”¹⁴ Thus, as Hegel wrote, “If the state claims life, the individual must surrender it.”¹⁵ Holmes’s second example, “laissez faire,” refers to unregulated capitalism, a social system in which a nation is an association of autonomous individuals, who appoint government as their agent for defending individual rights (including private property rights) against force and fraud.

In Holmes’s view, a constitution cannot and should not attempt to embody either of these theories, or indeed any particular view on the individual’s relation to the state. Rather, a constitution is “made for people of fundamentally differing views,” any one of which may rightfully gain ascendancy if its adherents compose a sufficiently influential fraction of the electorate. As Holmes put it: “Every opinion tends to become a law,” and the reshaping of law is the “natural outcome of a dominant opinion.”¹⁶ In other words, a nation made up of capitalists, socialists, communists, anarchists, Quakers, Muslims, atheists, and a hundred other persuasions cannot reasonably expect its constitution to elevate one political view above all the others. Because opinions vary so widely, a nation that deems one superior to all others risks being torn apart by internal dissensions unable to find outlets in the political process. On this view, a proper constitution averts disaster by providing an orderly mechanism for embodying in law the constantly shifting, subjective opinions of political majorities. As one commentator explained, “Holmes believed that the law of the English-speaking peoples was an experiment in peaceful evolution in which a fair hearing in court substituted for the violent combat of more primitive societies.”¹⁷ It did not trouble Holmes that under such a constitution, society might adopt “tyrannical” laws. As he once wrote to a friend, “If my fellow citizens want to go to Hell I will help them. It’s my job.”¹⁸ And so Holmes was able to conclude, in his Lochner dissent, “that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion.”

So there you have it. In just 617 carefully chosen words, the framework of liberty erected by the Founding Fathers and buttressed by the Civil War amendments had been interpreted out of existence.

According to Holmes, judges who claim to find fundamental principles in the Constitution are merely giving vent to their own personal political beliefs, which make some laws seem “natural and familiar” and others “novel, and even shocking.” But either reaction, in his view, is an “accident” having no proper place in adjudication. A judge’s “agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law,” Holmes wrote, no matter what the judge’s reasons. “Some of these laws embody convictions or prejudices which judges are likely to share,” said Holmes. “Some may not.”¹⁹ Thus, it makes no difference whether a judge holds a conviction based on careful reflection, and an understanding of the Constitution’s specific clauses and content, its history and mission—or merely harbors a prejudice based on upbringing, social class, or a desire to please those in power. All such views are personal to the judge and hence irrelevant in adjudication—an interpretive principle to which Holmes made no exception for himself. “This case is decided upon an economic theory which a large part of the country does not entertain,” Holmes wrote in Lochner. “If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty. . . .”

In short, Holmes believed that theSupreme Court presides over an empty Constitution — empty of purpose, of moral content, of enduring meaning — bereft of any embedded principles defining the relationship between man and the state. This distinctively Holmesian view, novel in 1905, is today’s orthodoxy. It dominates constitutional interpretation, defines public debate, and furnishes a litmus test for evaluating nominees to the Supreme Court. Although judges sometimes close their eyes to its logical implications when their pet causes are endangered, Holmes’s basic argument remains unrefuted by the legal establishment. In his bleak universe, there exists no principled limit on government power, no permanent institutional barrier between ourselves and tyranny — and the government can dispose of the individual as it pleases, as long as procedural niceties are observed. This pernicious Holmesian influence is reflected in the declining stature of America’s judiciary.

Concluded in Part 3.

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1. Unless otherwise noted, all quotations of Holmes in this section are from his dissent, 198 U.S. at 74–76.
2. Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America (New York: Times Books/Henry Holt and Company, 2007), 113.
3. Posner, Overcoming Law, 195 (emphasis in original).
4. A “word or saying used by adherents of a party, sect, or belief and usually regarded by others as empty of real meaning.” Merriam-Webster Online, “shibboleth,” http://www.merriam-webster.com/dictionary/shibboleth (last accessed March 25, 2021).
5. A Lexis/Nexis search performed on February 27, 2009, indicated that this sentence had been quoted verbatim in 59 reported appellate cases, 98 news reports, and 338 law review articles.
6. Richard Hofstadter, Social Darwinism in American Thought (New York: George Braziller, Inc., rev. ed., 1959), 33.
7. Herbert Spencer, Social Statics: The Conditions Essential to Human Happiness Specified, and the First of Them Developed (New York: Robert Schalkenbach Foundation, 1995), 25, 86.
8. Ibid., 86.
9. Ibid., 95–96 (emphasis in original).
10. Richard A. Posner, ed., The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr. (Chicago: University of Chicago Press, 1992), xxv.
11. Article I, section 10, clause 1.
12. See Harry Binswanger, “The Constitution and States’ Rights,” The Objectivist Forum, December 1987, 7–13.
13. This was a 19th-century term of art denoting “fundamental rights” and “substantive liberties” of the individual, to be protected against “hostile state action.” Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC: Duke University Press, 1986), 47–48.
14. Leonard Peikoff, The Ominous Parallels: The End of Freedom in America (New York: Stein and Day, 1982), 27.
15. Robert Maynard Hutchins, ed., Great Books of the Western World (Volume 46: Hegel) (Chicago: W. Benton, 1952), 123.
16. As Holmes wrote in another dissent years later, concerning liberty of contract, “Contract is not specially mentioned in the text that we have to construe. It is merely an example of doing what you want to do, embodied in the word liberty. But pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts.” Adkins v. Children’s Hospital, 261 U.S. 525, 568 (1923) (Holmes, J., dissenting).
17. Sheldon M. Novick, “Oliver Wendell Holmes,” The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992), 410.
18. Letter to Harold Laski, March 4, 1920, in Mark deWolfe Howe, ed., Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski 1916–1935, vol. 1 (Cambridge, MA: Harvard University Press, 1953), 249.
19. Emphasis added.