It’s no secret that Scott Walker is a very conservative governor. Indeed, Walker’s unapologetic conservatism is the centerpiece of his presidential campaign. In his announcement speech on Monday, Walker touted his efforts to hobble unions, his work restricting access to abortion, his support for easier access to guns, his conservative fiscal policy and his efforts to make it harder to vote in the state of Wisconsin.
A seemingly innocuous line in that speech, however, suggests that Walker’s broader ideological goals are even more ambitious than his record as governor suggests. In three sentences laying out his overarching theory of government, Walker appears to align himself with political theorists, some of whom died more than a century ago, who would radically dismantle the American system of government. He also appears to align himself with more modern constitutional theorists who wish to reinstate long-discredited Supreme Court cases that would eliminate much of the legal framework protecting workers from exploitation.
Echoing anti-government rhetoric that has been a mainstay of Republican stump speeches since the Reagan era, Walker declares his opposition to the so-called “top-down, government-knows-best approach we hear from politicians in Washington.” Yet, in the next sentence of his speech, he describes his anti-government philosophy in very specific terms: “As long as you don’t violate the health and safety of your neighbors — go out and start your own career, build your own business, live your own life.” This framework, where people are free to do as they wish so long as they do not violate others “health” or “safety” is the cornerstone of what Walker labels as “freedom.”
It’s also the cornerstone of an old conception of freedom which stretches back to the laissez faire attitudes of the Gilded Age.
“Health and Safety”
Christopher Tiedeman is, outside of certain academic circles, a forgotten figure in American history. Yet, at the height of his influence, Tiedeman was arguably the most significant legal thinker in the United States who was not a member of the judiciary. He bragged in the 1900 edition to one of his treatises, for example, that “the first edition of the book has been quoted by the courts with approval in hundreds of cases.”
That treatise explicitly rejected the notion that the right to govern flows from the consent of the governed, and instead called upon the judiciary to drastically limit government’s powers. “[T]he conservative classes,” Tiedeman wrote, “stand in constant fear of the advent of an absolutism more tyrannical and more unreasoning than any before experienced by man — the absolutism of a democratic majority.” To defeat what he imagined to be creeping tyranny, Tiedeman urged judges to “lay their interdict upon all legislative acts” that violated a narrow vision of government power, and he urged them to do so “even though these acts do not violate any specific or special provision of the Constitution.”
The Wisconsin Supreme Court’s 1902 decision in Zillmer v. Kreutzberg was typically of the genre of cases that relied upon Tiedeman’s writings in interpreting the law. In striking down a law prohibiting employers from firing workers because they joined a union, the court quoted from one of Tiedeman’s treatises — “it is the right of every one to determine whose services he will hire…. Governments, therefore, cannot exert any restraint upon the actions of the parties.”
As one scholarly examination of Tiedeman explains, the Gilded Age legal theorist’s vision for when government action is appropriate closely resembled the philosophy Walker articulated on Monday — at least in the context of the workplace. Tiedeman “limited the legitimate regulation of the labor contract to the preservation of the health and safety of the worker, or to the protection against fraud.” All other labor regulation, “including regulation of workers’ wages and hours-would violate the constitutional guarantee of liberty of contract, which Tiedeman argued was ‘intended to operate equally and impartially upon both employer and employee.’”
Enter The Supreme Court
In 1905, the United States Supreme Court embraced a slightly more moderate version of Tiedeman’s limits on government action in Lochner v. New York. Lochner is best known for reading a so-called “right to contract” into a provision of the Constitution which does not mention it, and then wielding this extra-textual “right” to constrain the government’s ability to improve labor conditions for workers. Though Lochner is widely viewed as a major error by the Supreme Court — Chief Justice John Roberts recently described it as “discredited” in a decision joined by two of his fellow conservatives — there is a burgeoning political movement in the American right, which includes some judges, senators and columnist George Will, which believes that Lochner should be reinstated.
(Will, it should be noted, disclosed in a column earlier this month that “[t]his columnist’s wife, Mari Will, works for Scott Walker.”)
Lochner relied on the distinctly Tiedemanesque notion that government is allowed to legislate for a certain limited set of purposes and not for any others. Like Tiedeman, Lochner permitted workplace regulation for the limited purpose of advancing “health” or “safety.” It also permitted legislation that involves “the morals” or “the welfare of the public.” But Lochner forbade laws that were enacted solely to advance what it viewed as an impermissible purpose — improving the lives of workers. These laws, Lochner concluded, were “an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.”
It’s worth noting that there is some disagreement among modern thinkers seeking to reinstate something similar to Lochner regarding whether this decision went far enough. Georgetown law professor Randy Barnett is the Christopher Tiedeman of 2015. Barnett was a major figure in the first Supreme Court lawsuit seeking to kill the Affordable Care Act. He’s also written that he “would prefer that courts adopt a ‘presumption of liberty’ of the sort the Court seemed to employ in Lochner.” Yet his other writings suggest that he views the Supreme Court’s Lochner era jurisprudence as too moderate, at least on economic issues.
In a 2004 law review article, Barnett criticizes the Court in decisions handed down in the years leading up to Lochner for sometimes construing government power “more broadly than was proper.” Specifically, Barnett complains, government power was typically construed to empower states to protect not only the ‘health and safety’ of the general public, but its ‘morals’ as well.” Thus, Barnett would hew closer to Tiedeman’s narrower framework for government power.
So What Of Scott Walker?
On the surface, Walker’s views appear closer to Barnett and Tiedeman than they are to Lochner. After all, in his announcement speech, Walker says that people should be free from government action so long as they do not violate the “health and safety” of their neighbors. He says nothing about laws regulating “morals.”
Walker’s broader record, however, suggests that a Walker presidency would be the worst of all worlds for liberals. Though Walker’s economic policies are consistent with a pro-Lochner agenda, he also seems quite content, at least in some cases, to wrap the crushing hand of government around individuals who violate his own personal moral code. This is, after all, the same Scott Walker who voted for a constitutional amendment protecting marriage discrimination, and who even opposed a law protecting the right of one member of a same-sex couple to visit their sick partner in the hospital.
Nevertheless, Walker’s statement about “health and safety,” when read in light of the wide range of libertarian literature that calls for a similar anti-government philosophy to be read into the Constitution, may offer some window into one of the most obscure aspects of his candidacy — who he would appoint to the federal bench and, potentially, to the Supreme Court, if elected president.
In Wisconsin, judges are typically elected and judgeships are only filled by a gubernatorial appointment when a vacancy arises. Accordingly, Walker has appointed fairly few judges and no members of his state’s supreme court. At a conservative legal conference in 2013, Walker hinted that he may appoint Judge Diane Sykes, a federal appeals court judge who backed voter ID laws and who wrote an opinion that SCOTUSBlog’s Lyle Denniston once described as “the broadest ruling so far by a federal appeals court barring enforcement of the birth-control mandate in the new federal health care law.” But his record as governor is too thin to predict whether he would take up George Will’s call to reinstate Lochner.
Walker’s announcement speech, however, puts some flesh on the bare bones of his record on judicial appointments. It echoes the rhetoric of more than a century of judges and scholars who read workplace deregulation into the Constitution. And it suggests that, should Walker have the opportunity to name Supreme Court justices, all of American law could swiftly take a hard right turn.