70. Social static

I recently ran across this eloquent explanation of the role the judiciary plays when reviewing actions of the police.  The executive branch might defend those actions on the basis that suppressing criminal violence is a good thing.  But that really isn't the point:

In every case that comes before this court, therefore, where police action of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty?  ...

This is not a question of substituting the judgment of the court for that of the officer on the scene, or of the legislature that enacts the law the officer is seeking to enforce.   If the act be within the power of the state it is valid, although the judgment of the court might be totally opposed to it.  But the question would still remain: Is it within the police power of the state? and that question must be answered by the court.

The quotation is from one of the most notorious anti-Progressive Supreme Court rulings of the early twentieth century.  I altered it to change the topic under discussion from labor laws to the criminal law.  The fascinating thing is that while "the Lochner era" is universally condemned in the law schools, and treated as a discredited relic of a benighted past, the era has yet to end. 

It's just that state laws that violated the contract clause in 1905 don't violate it today, and state actions that were consistent with the fourth, sixth and fourteenth amendments in 1905 are violations of those same amendments today.  In 2105 (assuming we've survived climate change and the Iranian and North Korean nuclear bombs), will the attentions of the courts be directed elsewhere?  Will law professors laugh at Warren Court opinions the way they laugh today at those of the Fuller Court?   I wouldn't want to bet against it.

In Lochner, Justice Holmes famously wrote in dissent: " The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics."  But, of course, he was wrong, because the majority opinion in Lochner ruled, in so many words, that it did.  The entire text of Herbert Spencer's 1851 Social Statics: Or, the Conditions Essential to Human Happiness Specified, and the First of Them Developed  is available on line, and even a casual scan of part III will convince you that much of what Spencer wrote retains its potency in American political and constitutional discourse to this day. 

Spencer, who coined the phrase "survival of the fittest", was the father of social Darwinism, a libel on a great scientist but today, as in 1905, the dominant philosophy of our judiciary.  Today's Supreme Court deprecates "majoritarianism" (see post 54), while Spencer wrote:  "Of the political superstitions lately alluded to, none is so universally diffused as the notion that majorities are omnipotent." 

The Supreme Court justice who wrote that constitutional litigation was the arena for "the unceasing contest between personal liberty and government oppression" was exactly echoing Spencer's view that those were the only choices.  So was the justice who described the core issue in all constitutional litigation this way: "It is a question of which of two powers or rights shall prevail, - the power of the state ... or the right of the individual to liberty".

The only confusing thing is that one of those justices was writing the universally-despised Lochner decision, and the other was William J. Brennan.