1905 Ad

The most famous dissent in American jurisprudence is Oliver Wendell Holmes's denunciation of court-ordered Social Darwinism in Lochner v. New York (1905). Lochner struck down a law which forbade a particular class of employers to work their laborers more than sixty hours per week. The U.S. Supreme Court declared this law a violation of the "liberty" guaranteed by the Fourteenth Amendment. In a florid opinion, the justices of the Gilded Age constitutionalized economic laissez faire.

Holmes's dissent in Lochner is scarcely longer than the Gettysburg Address, and nearly as masterful in stating central truths about American democracy. Holmes insisted that the "liberty" clause of the Fourteenth Amendment was not intended to trump popular sovereignty in the name of laissez faire. In a well-known aphorism, Holmes stated: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." The Constitution, he added, "is made for people of fundamentally different views....I think that the word `liberty,' in the Fourteenth Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental. principles as they have been understood by the traditions of our people and our law."

Undeterred by Holmes's rebuke, the Supreme Court went on dictating laissez-faire capitalism as constitutional law for more than thirty years. With grandiose declamations on "liberty," the Court struck down minimum wage laws, child labor laws, and much other social welfare legislation.

A constitutional crisis arose when the Court's libertarians persisted in overruling the democratic consensus during the Depression. President Franklin D. Roosevelt proposed a "court-packing plan" that would overtly have politicized the Court by expanding its membership and allowing the rapid addition of New Deal justices. With these threats in the air, the Court at last abandoned its practice of acting as an ideological superlegislature on marketplace issues. It conceded that the Constitution's "liberty" clauses contemplate a regime of ordered liberty, and do not dictate laissez faire.

This chapter of American legal history is well recalled today. We stand in a constitutional crisis of a similar nature. Once more, libertarian judges are overriding democratic consensus and invoking the "liberty" clause of the Fourteenth Amendment as justification. The current outbreak of judicial libertarianism is not economic, but hedonic. Its constant impulse is to maximize individual choice in seeking pleasure and in avoiding pain, regardless of the common good.

Beginning in the 1960s, the Supreme Court dictated a kind of sexual laissez-faire to the nation through its anti-censorship rulings. It constitutionalized most erotic imagery and went on to constitutionalize access to contraceptives for unmarried people (a seemingly subtle change in law that has had enormous impact on the status of the family). Then it aggressively constitutionalized abortion, imposing the most permissive abortion regime found anywhere in the Western world.

More recently, lower courts have taken libertarian ideology to even greater lengths. The most flagrant example of this is Compassion in Dying v. State of Washington (March 1996). In this holding, the Ninth Circuit U.S. Court of Appeals declared that constitutional "liberty" includes a right to die in the manner one chooses, and furthermore includes a right to have poison prescribed by a physician.

Compassion in Dying, like Lochner, is a pure act of judicial legislation. The Court simply dictates libertarian ideology and overrides the democratic consensus (some forty-four states had laws against assisted suicide when this opinion was released). The opinion itself weighs mountains of sociological data, delivers ideological speeches, then briskly dismisses all the reasons for laws against assisted suicide (for example, protection of the handicapped, protection of doctors, integrity). The Ninth Circuit Court negates popular government as nonchalantly as did the Gilded Age justices in Lochner.

As laissez-faire ideology once again overrides democratic consensus, our culture naturally displays increasingly Social Darwinist features. The tragedy of casual teen-age sex and teen-age pregnancy, and now the emerging horror of euthanasia (with feeble old and handicapped people hounded to "die and get out of the way") are Darwinism at its rawest. Laissez faire, after all, is nothing but an elegant French expression for imposing the law of the jungle.

We must speak up. We are embroiled in a constitutional crisis, as in the Depression, and we must once again convince the courts that they stand on untenable ground. We must convince the courts that we are determined to govern ourselves through democratic argument and consensus, not to have libertarianism imposed on us by decree.

John Hagen, Jr., is a lawyer who lives and work in Minneapolis.

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