Justice Holmes and the Empty Constitution

On April 17, 1905, Justice Oliver Wendell Holmes Jr. issued his dissenting opinion in the case of Lochner v. New York.1 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.”2

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. A dissent is a judicial opinion in which a judge explains his disagreement with the other judges whose majority votes control a case’s outcome. As one jurist put it, a dissent “is an appeal . . . to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”3 Holmes’s Lochner dissent, though little noticed at first, soon attained celebrity status and eventually became an icon. Scholars have called it “the greatest judicial opinion of the last hundred years” and “a major turning point in American constitutional jurisprudence.”4 Today, his dissent not only exerts strong influence over constitutional interpretation and the terms of public debate, but it also serves as a litmus test for discerning a judge’s fundamental view of the United States Constitution. This means that any Supreme Court nominee who dares to question Holmes’s wisdom invites a fierce confirmation battle and risks Senate rejection. As one observer recently remarked, “The ghost of Lochner continues to haunt American constitutional law.”5

Holmes’s dissent in Lochner blasted the majority opinion endorsed by five members of the nine-man Court. Holmes, as if anticipating the modern era of “sound bites,” littered his dissent with pithy, quotable nuggets that seemed to render the truth of his opinions transparently obvious. Prominent scholars have called the dissent a “rhetorical masterpiece” that “contains some of the most lauded language in legal history.”6 His “appeal to the intelligence of a future day” was a stunning success. So thoroughly did Holmes flay the majority’s reasoning that Ronald Dworkin, a prominent modern legal philosopher, dismisses the majority decision as an “infamous . . . example of bad constitutional adjudication” that gives off a “stench”; and Richard A. Posner, prolific author and federal appellate judge, writes that Lochner is the type of decision that “stinks in the nostrils of modern liberals and modern conservatives alike.”7

What heinous offense did the Lochner majority commit to provoke Holmes’s caustic dissent? It was not the fact that they had struck down a New York law setting maximum working hours for bakers. Holmes personally disapproved of such paternalistic laws and never questioned the Supreme Court’s power to strike down legislation that violated some particular clause in the Constitution.8 No, in Holmes’s eyes the majority’s unforgivable sin did not lie in the particular result they reached, but in the method by which they reached it. 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.

Lochner, a bakery owner whose criminal conviction sparked one of the Supreme Court’s most significant cases, never denied he had violated the New York Bakeshop Act of 1895. Instead, he contended that the statute itself was unconstitutional. The majority agreed with Lochner, and Holmes was moved to dissent—for reasons that are best understood against the background of Progressive Era reform. . . .

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Acknowledgments: The author would like to thank Onkar Ghate for his invaluable suggestions and editing, Adam Mossoff and Larry Salzman for their helpful comments on earlier drafts, Peter Schwartz for sharing his thoughts on legal interpretation, and Rebecca Knapp for her editorial assistance.

1 Lochner v. New York, 198 U.S. 45, 65 (1905) (Holmes, J., dissenting). The full text of the dissent can be found here.

2 Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes (Boston: Little, Brown and Co., 1989), p. 283.

3 Charles Evans Hughes, The Supreme Court of the United States, quoted in Catherine Drinker Bowen, Yankee from Olympus: Justice Holmes and His Family (Boston: Little, Brown and Co., 1943), p. 373.

4 Richard A. Posner, Law and Literature (Cambridge, MA: Harvard University Press, 1998), p. 271; G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), p. 324.

5 David E. Bernstein, review of Michael J. Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s, Law and History Review,vol. 21 (Spring 2003), p. 231.

6 Posner, Law and Literature,p. 271; Bernard H. Siegan, Economic Liberties and the Constitution (Chicago: University of Chicago Press, 1980), p. 203.

7 Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1997), pp. 82, 208; Richard A. Posner, Overcoming Law (Cambridge, MA: Harvard University Press, 1995), pp. 179–80.

8 Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000), p. 63; Posner, Law and Literature,p. 269.

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