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An Interesting Historical Question: The Original Source of Holmes' Dissent in Lochner?

By Jack M. Balkin

Probably the most famous dissent in the history of the United States Supreme Court is Holmes? dissent in Lochner (1905). ?The 14th Amendment does not enact Mr. Herbert Spencer?s Social Statics,? he declaimed.

?A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens to the state or of laissez faire.?

Holmes? attack on the majority has been quoted innumerable times, and is widely considered a brilliant statement of what was wrong with the majority view.

There is reason to believe that Holmes got his argument?or at least the idea?from an article that was published a dozen years earlier (which I accidentally stumbled across). In 1893, making an argument that is remarkably resonant of Holmes? dissent, C.B. Labatt described what he saw as a newly emerging theory of constitutional interpretation:

The old theory was that there were abstract principles of justice, which, although they were not embodied in the organic law of a State, might be referred to for the purpose of deciding whether the will of the legislature might be overruled in some particular instance. The new theory is that certain doctrines of a particular school of political economists are impliedly, if not expressly, recognized as sound by the constitution, and may therefore be utilized to elucidate and further the intention of the framers.

Labatt went through several recent state cases to demonstrate his thesis, remarking that ?The court seems to have?pronounced its opinion in terse and emphatic language, which breathes the very spirit of Mr. Herbert Spencer himself.?

Labatt then asserted that the court?s argument in effect (implicitly) declares ?that the doctrine of laissez faire is a part of the constitutional law of this country??

That was precisely Holmes? argument in Lochner.

It?s difficult to know whether Holmes actually read the article (I haven?t bothered to find out whether he ever cited it), but there are a couple of reasons to think that he might have. It was published in the American Law Review, which was the leading law review of the day. Early in his career Holmes worked as an editor for the review, and he published a number of articles in it over the years.

Another reason to think Holmes might have read the article is that it critically discusses a recent Massachusetts Supreme Court decision as an example of this way of thinking. Holmes was on the court, and Labatt praised his ?quiet expression of doubt? about the reasoning in the case.

I am not suggesting that Holmes should have credited Labatt if he did get the idea from this article (although it would have been nice, and would have kept Labatt from historical obscurity). It?s just interesting to see, if true, where he got the idea from, and to learn (once again) that Holmes was not the stand alone maverick he is often made out to be.

The article can be found at 27 American Law Review 857 (1893).

Full post as published by Balkinization on February 22, 2008 (boomark / email).