I find Howard's explanation troubling. (Of course that is not to say that I think
it is false.)Is it that "the Lochner era" was invented later or just calling the era
"the Lochner era" was a later development? If the later, this doesn't explain the
reason for dubbing the era "the Lochner era" as opposed to using the names of at least
a half dozen other cases. Moreover, just how does one establish that what we now think
were seminal (or at least terribly important) cases were just ordinary cases that the
historical actors (especially justices) didn't think mattered much. Further, what
justifies "the process by which legal commentators construct the "canon" (and
"anti-canon") of constitutional law is a distinct political-legal activity"? Is it
simply inevitable? Moreover, how is the practice to be defined? Is it inevitable that
hisory is defined (or redefined) in this manner, or only judicial history? What
constraints should be placed on commentators and judges in their !
attempt to construct the legal canon that non-legal historians need not abide by?
Finally, is this process of reconstruction merely a result of some contemporary
cocneption of legal realism, or does some other jurisprudential theory ground it?
Further, there exists a signifiant distinction between future legal commentators
giving an ordinary case an an extraordinary meaning, on the one hand, and cases
pilloried in their time acquiring new meaning subsequently. In the former context,
just why was "Lochner" picked to depict the era? In the later context, no one disputes
the significance of the case (Brown, say), just whether the case was decided rightly
or wrongly. At the time of its decision, it was pilloried, while through future
reconstruction it turns out to be valorized, at least by many.
Also, there exist important pedagocial reasons for being troubled by Howard's
explanation. (Again, this does not mean that I reject it.) Although, in class I
typically say "what has come to be known as the 'Lochner era,' stands for ....," I'm
sure that I give the impression that Lochner was considered terribly important at the
time. Finally, in my view, Lochner's clarity in setting up the different political
philosophical positions about freedom and government regulation, especially Holmes'
dissent, reflect values that contemporary constitutional controversies implicate
today. Consequently, if "the case was not viewed as all THAT special or distinctive
at the time it was handed down", in my view, commentators and jurists of that day
blundered.
Bobby Lipkin
Widener University School of Law
Delaware
