David Bernstein (law Professor) - Constitutional History

Constitutional History

David Bernstein is an expert on the Lochner era of American constitutional jurisprudence. He wrote Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke U. Press 2001), and Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (U. Chicago Press 2011). Historian G. Edward White calls the latter book "the best general survey of the literature of Lochner revisionism," and Yale Law School professor Jack Balkin adds that "Rehabilitating Lochner will change the way people think about the transition from the late nineteenth century to the modern New Deal and Civil Rights regime."

Bernstein's work on Lochner is notable because unlike most other Lochner revisionists, he argues that the Supreme Court's liberty of contract jurisprudence was primarily rights-based, rather than resulting from concerns over "class legislation". His work is unique in that it often focuses on how the due process decisions of the "Lochner era" affected the rights and prospects of disenfranchised immigrants, women, and African Americans. Rehabilitating Lochner emphasizes the continuities between the Supreme Court's pre-New Deal Fourteenth Amendment jurisprudence and its current jurisprudence, suggesting that Progressive Era opponents of Lochner and other cases protecting individual rights ultimately won only a partial victory.