April 17, 1905 – The U.S. Supreme Court Decided Lochner v. New York

Is it the function of the Judiciary to second-guess the elected representatives of the people? Or can it be assumed the majority knows best? Should economic power confer political power? These are some of the questions posed by one of the most famous cases in U.S. Supreme Court history, Lochner v. New York, 198 U.S. 45 (1905).

In New York at the end of the 19th Century, bakers were paid by the day, which could run from ten to fourteen hours. Bakers wanted shorter workdays and were also concerned about the health hazards in their workplaces. A “muckraking” reporter for the New York Press published stories about unsanitary working conditions in small bakeries, confirmed by inspection reports. This led to the enactment of New York’s Bakeshop Act of 1897, which regulated (some) sanitary conditions and strongly supported the baker’s union, establishing the 60-hour maximum workweek.

Utica bakery owner Joseph Lochner had a small business. He felt that the reforms, expensive to put into effect, gave an unfair advantage to larger, more prosperous bakeries. He fought the union, which then filed a complaint against him for employing a baker for more than sixty hours in one week. Lochner was found guilty and appealed, arguing that The Bakeshop Act violated the Fourteenth Amendment (which holds that “No state shall make or enforce any law which shall … deprive any person of … liberty…without due process of law….”)

Justice Rufus Peckham, writing for a five-Justice majority of the Supreme Court, found that “The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment of the Federal Constitution.” This included the right to purchase and sell labor, except as controlled by the state in the legitimate exercise of its police power. Justice Peckham did not consider the health effects of a 60-hour workweek to be a “reasonable ground” for interference with the liberty of contract under federal law. Moreover, restriction of hours is “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to labor, and, as such, it is in conflict with, and void under, the Federal Constitution.”

(The Court previously had agreed that some state police power is appropriate with respect to labor conditions, such as for underground mining, but apparently working in a bakery did not arouse much interest in the Court. Justice Peckham wrote: “There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State.” No one dissenting expressed disagreement on the point of whether bakers were more intelligent than miners.)

Justice Rufus Peckham

Justice Rufus Peckham

As for the deleterious effects of working in a bakery, The Court contended that “all occupations more or less affect the health.” But does that fact, Justice Peckham asked, put us all “at the mercy of legislative majorities?” The bottom line for the Court was that “The [Bakery Act] is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts.”

[Interfering with contracts on the grounds of public policy is controversial because first, it empowers a court to interfere in private agreements. Second, there is no bright line between acceptability and abuse. And third, it is not clear that courts should impose their value judgments not only on private individuals but on popularly-elected legislatures.]

Justice Oliver Wendell Holmes, Jr. notably dissented (Judge Richard Posner characterized the Holmes dissent as “the best Supreme Court opinion ever written”), maintaining that the real issue was whether the Court had the right to impose its own preferences over the right of the majority as manifested by the legislation it enacts. Holmes contended that the state’s power to interfere with the right to contract in ways that could not easily be distinguished from the bakers’ hours law, including such ancient laws as those against usury and work on Sundays, was well established. According to Holmes, the word “liberty” in the Fourteenth Amendment “is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”

Justice Oliver Wendell Holmes, Jr.

Justice Oliver Wendell Holmes, Jr.

Holmes’ view was eventually adopted, but not for some thirty years. With this decision, the Supreme Court embarked upon the so-called Lochner Era of its history. Over the next three decades, the Court struck down numerous attempts by state governments to improve working conditions or protect consumers, all pursuant to the Lochner holding of “liberty of contract.” The term “substantive due process” is often used to describe the Court’s approach – that is, ruling on the “substance” of legislation rather than the process used to enact it. And in fact, “Lochnerism” is used as shorthand to indicate judicial activism, as well as, somewhat ironically, judicial conservatism.

In the late 1930’s, in the new atmosphere created by the administration of Franklin Roosevelt, the Court rejected the approach of safeguarding private business from government encroachment, and began to uphold the constitutionality of the regulatory scheme, deferring to the expertise and findings of the legislature.

As David E. Bernstein writes in “Lochner v. New York: A Centennial Retrospective,” 83 Wash. U. L. Q. 1469 (2005):

The post-Lochner reincarnation of fundamental rights began in 1937 in Palko v. Connecticut (302 U.S. 319, 325), with all of the “Progressive” Justices joining a Cardozo opinion stating that the Fourteenth Amendment protects against the states all rights ‘implicit in the concept of ordered liberty.’ The Court also expressed its reluctance to entirely abandon judicial review of purported police power regulations in the famous Footnote Four of the 1938 Carolene Products case (United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4, 1938). The Court suggested that ‘[t]here may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth.’”


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