Book Review

Although it has long since been overturned, Lochner v. New York (1905) remains one of the most controversial cases in Supreme Court history. The facts of the case are well known. In Lochner, the Court declared unconstitutional a New York State law limiting bakery workers to no more than ten-hour days or sixty hours per week. The Court argued that the law impaired the workers' liberty to contract for longer hours if they so wished. Known both for the judicial activism of the majority and the famous dissents by Oliver Wendell Holmes and John Marshall Harlan, Lochner remains central to the ideological battles over the Court's role in the conflict between the free-market and the regulatory state.	1
In Lochner v. New York: Economic Regulation on Trial, Paul Kens offers a revised edition of his first book, Judicial Power and Reform Politics: The Anatomy of Lochner v. New York. The thesis is the same in both books. Kens describes the powerful influence social Darwinist and laissez-faire ideas had on the Lochner court. This, of course, is not a new argument. Kens is following in the footsteps of turn-of-the-century Progressives (and historians such as Charles Beard and Robert McCloskey) who accused the Court of grafting the ideas of Herbert Spencer and William Graham Sumner onto the Constitution. In his dissent in Lochner, Justice Holmes fueled these allegations when he wrote "this case is decided upon an economic theory which a large part of the country does not entertain." Although not new, what makes Kens's argument important is that it challenges recent scholarship which argues that the Lochner decision had little to do with laissez-faire or social Darwinist ideals. Rather than linking Lochner to the laissez-faire ideas of Herbert Spencer, many recent scholars view the case as a natural outgrowth of the values of Jacksonian economic individualism and the Republican Party's antebellum free-labor ideology. In response, Kens points out that the majority in Lochner hardly had Jacksonian goals in mind. Jacksonian individualism was based on a deep resentment of moneyed interests and concentrations of wealth. Jacksonians feared that the government would aid the rich and powerful at the expense of the common person. This was not, Kens argues, the view held by the laissez-faire jurists of the Lochner court who were concerned with protecting economic privilege rather than opposing it. Instead, Kens successfully links the evolution of substantive due process and liberty of contract—the doctrines that underpinned the Lochner decision—to the rise of laissez-faire and social Darwinist thought in the late-nineteenth century. If Rufus Peckham and the other members of the Lochner majority thought they were upholding Jacksonian ideals, Kens concludes, the history of the case shows "how laissez-faire constitutionalism turned the Jacksonian ideals on their head" (184). While Kens does acknowledge that the Court actually overturned very few turn-of-the-century reform laws--Lochner was the exception, not the rule—he also shows how substantive due process and liberty of contract forced lawmakers to tailor reform statutes to meet the Court's constricted definition of police powers. Kens also outlines how the judicial activism of the Lochner court laid the groundwork for the Supreme Court's reactionary stand against the New Deal in the 1930s. While the Supreme Court let many Progressive-era reform laws stand, the doctrines of substantive due process and liberty of contract gave the Court a veto power over state legislation that it had not had in the past and that it would use increasingly in the future.	2
As a revised edition of a previous monograph, Lochner v. New York: Economic Regulation on Trial, restates Kens's thesis in a more accessible, updated, footnote-free, and paperback format. This is a welcome contribution. The book should now find its way onto the reading lists of courses on legal and constitutional history, as it is well suited for a general audience. Kens places the Lochner decision firmly within its historical context and uses it as a window to an age. In the course of his narrative, Kens introduces the reader to an array of subjects including the noisome conditions in New York's tenement bakeries; Progressive reformers and Tammany Hall politics; nineteenth-century intellectual, economic, and labor history; and the lives and personalities of important jurists and lawyers. He does this while presenting the key constitutional and legal developments in a clear and compelling manner. Thus, the book will keep the attention of undergraduates, law students, and other general readers. For this achievement alone, Kens should be commended.	3
Michael A. Ross Loyola University, New Orleans

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