Tom Bowden in The Objective Standard — VOICES for REASON

A new article by Tom Bowden has just been published at The Objective Standard and is freely available online. “Justice Holmes and the Empty Constitution” starts this way:

On April 17, 1905, Justice Oliver Wendell Holmes Jr. issued his dissenting opinion in the case of Lochner v. New York. At a mere 617 words, the dissent was dwarfed by the 9,000 words it took for the Supreme Court’s eight other Justices to present their own opinions. But none of this bothered Holmes, who prided himself on writing concisely. “The vulgar hardly will believe an opinion important unless it is padded like a militia brigadier general,” he once wrote to a friend. “You know my view on that theme. The little snakes are the poisonous ones.”

Of the many “little snakes” that would slither from Justice Holmes’s pen during his thirty years on the Supreme Court, the biting, eloquent dissent in Lochner carried perhaps the most powerful venom.

The essay analyzes Holmes’s dissent and its continuing influence on constitutional thinking, public debate, and criteria for selecting judges. The case involved the criminal conviction of Joseph Lochner, a bakery owner in New York state, who allowed one of his employees to work more than 60 hours in a week. Over Holmes’s dissent, the majority voted to overturn New York’s maximum-hours law as an unconstitutional violation of contractual liberty.

The majority interpreted the Constitution as if it embodies a principled commitment to protecting individual liberty. But no such foundational principle exists, Holmes asserted, and the sooner judges realize they are expounding an empty Constitution-empty of any underlying view on the relationship of the individual to the state-the sooner they will step aside and allow legislators to decide the fate of individuals such as Joseph Lochner.

This article explains why Holmes’s Lochner dissent has been called “a major turning point in American constitutional jurisprudence” and “the greatest judicial opinion of the last hundred years.” In future posts on this blog, the essay’s author will explore some connections between Holmes’s enduring, pernicious influence and the nomination of Judge Sonia Sotomayor for a seat on the Supreme Court.