Lochner v. New York

United States 1905

Synopsis

In 1897, in response to wretched working conditions at bakeries in New York State, the state legislature enacted the New York Bakeshop Act, as part of the New York State Labor Law. Among other provisions, the act limited the hours that bakers could work. A bakery owner named Joseph Lochner from Utica, New York, subsequently challenged the Bakeshop Act in court, and the suit eventually made its way to the U.S. Supreme Court. The Supreme Court's upholding of Lochner's challenge to the New York Bakeshop Act became a landmark decision in support of laissez-faire economics and the newly invented legal doctrine of "substantive due process." It also touched off what is commonly known as the "Lochner Era," wherein the Court struck down many economic and labor regulations as violating the rights of businesses. The Lochner Era is viewed in many different ways today, but it is most commonly seen in a negative light, as an era during which the Court substituted its own political will and economic theories for those of legislatures.

Timeline

• 1885: Indian National Congress is founded. In the years that follow, the party will take the helm of India's independence movement.
• 1890: U.S. Congress passes the Sherman Antitrust Act, which in the years that follow will be used to break up large monopolies.
• 1895: Brothers Auguste and Louis Lumière show the world's first motion picture—Workers Leaving the Lumière Factory—at a café in Paris.
• 1898: United States defeats Spain in the three-month Spanish-American War. As a result, Cuba gains it independence, and the United States purchases Puerto Rico and the Philippines from Spain for $20 million.
• 1901: U.S. President William McKinley is assassinated by Leon Czolgosz, an anarchist. Vice President Theodore Roosevelt becomes president.
• 1903: Russia's Social Democratic Party splits into two factions: the moderate Mensheviks and the hard-line Bolsheviks. Despite their names, which in Russian mean "minority" and "majority," respectively, Mensheviks actually outnumber Bolsheviks.
• 1904: Russo-Japanese War, which lasts into 1905 and results in a resounding Japanese victory, begins. In Russia, the war is followed by the Revolution of 1905, which marks the beginning of the end of czarist rule; meanwhile, Japan is poised to become the first major non-western power of modern times.
• 1905: Russian Revolution of 1905 occurs. Following the "bloody Sunday" riots before the Winter Palace in St. Petersburg in January, revolution spreads throughout Russia, in some places spurred on by newly formed workers' councils, or soviets. Among the most memorable incidents of the revolt is the mutiny aboard the battleship Potemkin. Suppressed by the czar, the revolution brings an end to liberal reforms, and thus sets the stage for the larger revolution of 1917.
• 1905: Albert Einstein presents his special theory of relativity.
• 1905: In the industrial Ruhr region in Germany, 200,000 miners go on strike.
• 1909: National Association for the Advancement of Colored People (NAACP) is founded by W. E. B. Du Bois and a number of other prominent black and white intellectuals in New York City.
• 1914: On the Western Front, the first battles of the Marne and Ypres establish a line that will more or less hold for the next four years. Exuberance is still high on both sides, but will dissipate as thousands of German, French, and British soldiers sacrifice their lives in battles over a few miles of barbed wire and mud. The Eastern Front is a different story: a German victory over Russia at Tan-nenberg in August sets the stage for a war in which Russia will enjoy little success, and will eventually descend into chaos that paves the way for the 1917 revolutions.

Event and Its Context

Bakeries

During the late 1800s and early 1900s, baking as a profession, along with most of the American economy, had undergone macroeconomic shifts in the wake of the Civil War and the triumph of industrial capitalism that it heralded. Like most other workers, bakers were moving away from working for themselves and toward working for other people. A large number of bakeshops arose in New York State, due to the ease of opening such shops. There also appears to have been a large demand for bakeshop services as more and more people worked and lived in tenement buildings where doing one's own baking could be inconvenient.

The bakeries were often dark, dank, decrepit, and unsafe for workers and customers. Tuberculosis was rampant and bakeries almost certainly contributed to its spread. Contemporary accounts describe great mounds of dough resting on workers' sweaty bodies and knives being carried in their mouths.

Workers were made to work very long hours, in apparent violation of an 1867 eight-hour workday statute that provided for neither penalties nor enforcement of the requirement. In 1891 New York bakers went on strike for a 12-hour workday.

By 1895 the bakers' workweek appears to have stabilized at around 74 hours. This was long, even by the standards of the day, and bakers' working conditions were particularly odious. New York-based labor unions, especially in New York City, were concerned and sought to achieve safer working conditions and shorter hours by using collective bargaining and strikes, to little or no avail. As a general rule, the labor unions of the day were relatively suspicious of politics in general and of legislative action in particular and followed the bargaining strategy associated with Samuel Gompers, president of the American Federation of Labor.

Bakers' unions, however, appear never to have abandoned the legislative strategy, and their lobbying appears to have been behind New York State assembly member Arthur Audett's interest in the issue. In 1897 the legislature was preoccupied with a wholesale modification of New York State's General Laws (now known as the Consolidated Laws), which covered labor law in the state.

After dealing with the possible opposition of the Republican political boss Thomas C. Platt, Audett managed to add an article to the new labor law dealing specifically with labor, safety, and health conditions at bakeries (Article 8, "Bakery and Confectionary Establishments," informally known as the "New York State Bakeshop Act"). The Bakeshop Act consisted of three pages of a law that went on for several dozen. The bulk of the Bakeshop Act, Sections 111 through 115, outlined specific safety requirements. However, Section 110 specified that workers in bakeshops covered by the law could neither be required nor permitted to work more than 10 hours in one work-day, nor more than 60 hours in one workweek. The act contained "flexibility" language that allowed more than 10 hours per day if compensatory time off was granted later in the week.

Bakers were never really happy about the law, but it took several years for a serious challenge against it to be mounted.

The Case

Joseph Lochner owned a small bakery in the upstate New York town of Utica. His first violation of Section 110 of the Bakeshop Act took place in 1902, and he violated it several times after that. He repeatedly appealed one of his convictions, which went to the Supreme Court in February 1905. At issue was whether or not the Bakeshop Act's limit on hours of labor was an improper use of the state's "police powers," a vaguely defined set of powers held by the states to regulate on behalf of their citizens' health, welfare, and morals. Police powers could, under certain conditions, override freedom of contract. Although the Lochner decision ultimately did little to define "police powers," it did help to establish the doctrine of "substantive due process," under which laws could be declared unconstitutional on their substance.

Lochner's apparently unlicensed attorney constructed a simple argument concluding that Section 110 of the labor law was contrary to the United States Constitution on three basic grounds:

• It did not apply uniformly to all bakeshops but only to those that met the specific definition in the law.
• Section 110 could not really be a health and safety law, as such issues were covered by other provisions of the Bakeshop Act.
• Section 110 was not a proper use of the state police power (this argument was vaguely constructed at best).

Lochner's attorney argued that these factors made this section of the New York State Bakeshop Act an impairment on Lochner's freedom of contract and that it violated the "due process" clause in the Fourteenth Amendment of the U.S. Constitution.

New York State, represented by State Attorney General Julius M. Mayer, constructed a monolithic argument; contextual evidence suggests that Mayer was distracted by preparation for another case that he was to argue before the Court within a few months. Unless, Mayer argued, Lochner can show "no basis upon which the state court could rest its conclusion that the legislation in question was a proper exercise of the police power," such policy questions were up to the New York State legislature to decide, not the courts. In justifying the idea of such legislation to begin with, Mayer cited the state's interest in having "able-bodied men at its command when it desires." Neither side attempted to offer a specific definition of the "police powers" of the states.

The Decision

The majority opinion delivered by Justice Rufus Peckham simply concluded that Section 110 was an unfair and unwarranted limitation on freedom of contract and that it did not relate properly to public health or safety nor to the specific conditions of baking, and was therefore not a legitimate exercise of the state's police power. Somewhat oddly, Peckham specifically cited the fact that there was no means by which an emergency situation could override the hours limit (though Peckham failed to cite an example of a baking emergency). Peckham failed to develop a systematic legal test to determine what would and would not be a legitimate exercise of the police power.

Peckham went further, however, and insulted the legislature, suggesting that "other motives" than the public health and safety were behind the Bakeshop Act. Finally, Peckham argued that there was no empirical reason to enact such a law, as "common sense" dictated that baking was not a particularly dangerous profession.

Justice Harlan wrote the minority opinion. Harlan's minority opinion and Peckham's majority opinion agreed in the essentials. They agreed that the police power existed and that it was held by the states; they agreed further that it could override the implied freedom of contract in the Fourteenth Amendment's "due process" clause. Harlan, however, was willing to give the states the benefit of the doubt, and Peckham was not. Harlan argued that the burden of proof was on those who wished to repeal such laws, and that the presumption was in favor of the state legislatures. Peckham was unwilling to make that presumption. Harlan, further, had clearly done a good deal of reading on the subject of baking and came to the same conclusion as the New York State legislature: baking indeed was an abnormally dangerous profession, and it was conceivable that New York State could have had a legitimate public health rationale for enacting the law it did. Peckham, by contrast, fell back on "common sense" and offered no empirical evidence, nor did he display any knowledge on the subject of baking or of labor hazards in general.

Justice Oliver Wendell Holmes's dissenting opinion has entered the lexicon of American legal history to the point that Harlan's dissent is often seen as of secondary importance. However, apart from a bitter remark that the U.S. Constitution did not automatically legitimize the ideas of social theorist Herbert Spencer, the Holmes dissent amounted to a shorter and more strongly worded version of the Harlan dissent.

The Impact

As a general rule, the Lochner case is studied in the context of American legal rather than labor history. It is commonly seen in a negative light, as having ushered in the so-called Lochner Era, wherein the U.S. Supreme Court, using the "substantive due process" doctrine, sought to enforce a social Darwinist ideology and in so doing felt free to override state legislatures on what were essentially political questions. In relatively recent years, however, revisionist historians have attempted to argue that the Lochner Era represented not an imposition of the will of the Court on the will of the state legislatures, but rather a "restoration" of the American Constitution and American constitutional principles that had been under "assault" by the economic regulations enacted by the state legislatures. The conventional view, however, still seems to be the most commonly accepted one in most quarters.

Whatever view is taken, by the early to mid-1930s, when the Great Depression caused the courts to rethink laissez-faire capitalism and to uphold several economic and labor regulations, such as minimum wage and maximum hours laws, the Lochner Era was over.

Within the labor movement, the Lochner decision appears to have achieved relatively little notoriety or attention. This is probably because during the Lochner Era organized labor continued to organize workers, conduct strikes, and negotiate with employers for shorter working hours, higher wages, better working conditions, vacation time, and the like, just as they had always done. Within 30 years of the Lochner decision, many of the critical reforms for which labor had fought were enshrined in federal law, via the Fair Labor Standards Act.

Key Players

Audett, Arthur J.: Audett was a member of the New York State Assembly and primary author of the Bakeshop Act.

Holmes, Oliver Wendell (1841-1935): Holmes was a native of Boston, Massachusetts, and a graduate of Harvard University. He was a Theodore Roosevelt appointee to the U.S. Supreme Court from 1901 to 1932 and is an extremely important figure in American legal history. His notoriety in the Lochner decision comes chiefly from an extremely short and notably scathing dissent wherein he argued that the majority opinion was attempting to impose a social Darwinist ideology on the American Constitution. From a legal perspective, the other, less-cited dissent is of greater importance to the case itself, but it was Holmes's dissent that framed the continuing political and academic perception of the decision and its meaning.

Peckham, Rufus (1838-1909): Peckham was a native of Albany, New York, and a prominent lawyer affiliated with the Democratic Party. He was appointed by President Grover Cleveland to the U.S. Supreme Court in 1895 and served there until his death. Peckham had previously served as a judge in various New York State courts. He is best remembered for his Lochner decision.

Platt, Thomas C. (1833-1910): Platt was a native of Oswego, New York. He served in the U.S. House of Representatives from 1873 to 1877 and became a U.S. senator in 1881 but resigned almost immediately following a patronage dispute with then-President Garfield. He later served in the Senate from 1897 to 1909. In New York State, his prominence derived more from his prestige as a Republican political boss than from his various terms in elected office. His chief role in the Lochner matter was to allow Arthur Audett to persuade him to let the Bakeshop Act pass.

See also: Fair Labor Standards Act.

Bibliography

Books

Bernstein, David E. Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal. Durham, NC: Duke University Press, 2001.

Friendly, Fred W., and Martha J. H. Elliott. The Constitution: That Delicate Balance (Landmark Cases That Shaped the Constitution). New York: McGraw-Hill Publishing Company, 1984.

Gillman, Howard. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence.Durham, NC: Duke University Press, 1993.

Kens, Paul. Judicial Power and Reform Politics: The Anatomy of Lochner v. New York. Lawrence: The University of Kansas Press, 1990.

——. Lochner v. New York: Economic Regulation on Trial. Lawrence: The University of Kansas Press, 1998.

Padover, Saul K., and Jacob W. Landynski, eds. The Living U.S. Constitution. New York: New American Library, 1983.

Wall, Joseph F. "Lochner v. New York: A Study in the Modernization of Constitutional Law." In AmericanIndustrialization, Economic Expansion, and the Law, edited by Joseph R. Frese and Jacob Judd. Tarrytown, NY: Sleepy Hollow Press, 1981.

Periodicals

Cohen, Julia E. "Lochner in Cyberspace: The New Economic Orthodoxy of 'Rights Management.'" Michigan Law Review 97 (November 1998).

Other

Lochner v. New York. 198 US 45 (1905).

—Steven Koczak

LOCHNER V. NEW YORK

Lochner v. New York (1905) was one of several U.S. Supreme Court cases before and after the turn of the twentieth century involving state regulation of American labor conditions. Because its opinion appeared to favor the concerns of employers over those of employees, Lochner achieved considerable notoriety as an instance of an activist court interpreting the Constitution to support a dominant pro-business ideology, affirming legally the English philosopher Herbert Spencer's Social Darwinist doctrine of "survival of the fittest." The "Lochner era" and "Lochnerism" became conventional terms in legal scholarship, denoting a historical period (roughly 1905–1937) in which courts typically upheld laissez-faire economic principles and resisted governmental regulation; the era clearly came to an end with the depression-era court decisions that made possible President Franklin Roosevelt's (1882–1945) New Deal, with its massive regulation of the American economy. From another perspective, however, Lochner articulated with particular clarity the central contestations confronting American culture in its uneasy transition to the modern period: between the claims of the individual and the collective, between a traditional liberal idealism and situational pragmatism.

THE MAJORITY OPINION: LIBERTY OF CONTRACT

The case involved a baker in Utica, New York, Joseph Lochner, convicted in lower courts of violating a state statute limiting to sixty the weekly hours for bakery employees. The Supreme Court, in a 5–4 decision represented in Justice Rufus Peckham's (1838–1909) majority opinion, reversed the lower courts' rulings, invoking a fundamental "right to contract" implicit in the "due process clause" of the U.S. Constitution's Fourteenth Amendment ("nor shall any State deprive any person of life, liberty, or property, without due process of law"):

The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power. (Lochner, p. 45)

Like the Fifth Amendment that it reinforced, and like the Declaration of Independence that it echoed, the Fourteenth Amendment's due process clause invoked the individualistic tradition of the seventeenth-century British philosopher John Locke (1632–1704), the founder of modern liberalism, who insisted on men's inalienable "perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit . . . without asking leave, or depending upon the will of any other man" (p. 259). Thus, in finding for the employer Lochner, the court simply returned to the most sacred of American institutions: the natural right of the individual to freedom.

Moreover, the court argued, New York's labor law was in this case clearly not a "legitimate exercise" of "police power," whose proper function it defined as protecting the "safety, health, morals, and general welfare of the public" (Lochner, p. 53). Unlike statutes demanding compulsory vaccination or Sunday business closures, New York's law had no clear value for the public's physical or moral well-being; more important, it differed from laws regulating certain kinds of inherently hazardous labor (such as mining) because, in Peckham's words, "to the common understanding the trade of a baker has never been regarded as an unhealthy one" (Lochner, p. 59). Any reasonable observer would conclude that bakers needed no special protection against their own right to enter into contracts.

The criterion of "common knowledge" or "the common understanding," with its implicit appeal to reasonableness, was important to the court exactly because, as Peckham pointed out, all labor carried with it an element of risk or unhealthiness. To attempt general state regulation of all risk would open the doors to extraordinary (and paternalistic) expansions of police powers. Peckham vividly and sardonically imagined a regulatory dystopia where not only the right to contract but all fundamental rights would be jeopardized, where

conduct . . . as well as contract, would come under the restrictive sway of the legislature. Not only the hours of employees, but the hours of employers, could be regulated, and doctors, lawyers, scientists, all professional men, as well as athletes and artisans, could be forbidden to fatigue their brains and bodies by prolonged hours of exercise, lest the fighting strength of the state be impaired. (Lochner, pp. 60–61)

In the majority's opinion, New York's law had passed the limits of common sense and started down the slippery slope to "meddlesome interferences with the rights of the individual" (Lochner, p. 61)—and to a repugnant Orwellian future.

THE DISSENTS: DATA AND "THE WILL OF THE PEOPLE"

Two dissents accompanied the Lochner decision. The first, written by Justice John Marshall Harlan (1833–1911) (best known for his powerful 1896 dissent to Plessy v. Ferguson's justification of racial segregation) and supported by two other judges, accepted the majority argument's general premises but arrived at different conclusions concerning both "police powers" (and how to determine their legitimate use) and the courts' relation to the legislative process. To justify regulating bakers' hours, Harlan substituted professional expertise and statistical data for the "common knowledge" according to which Peckham claimed that baking as an occupation posed no particular threat to employee health. He quoted at length two scholarly researchers, cited the Eighteenth Annual Report by the New York Bureau of Statistics of Labor and other unattributed "statistics," and concluded that, despite what the "common understanding" might think, bakers indeed deserved the kind of special-case protection afforded to workers in more obviously dangerous jobs.

In addition, Harlan warned of another slippery slope: the threat of an overempowered judiciary finding in the gray areas of police powers a site upon which to make legislation counter to the people's will, rather than to judge cases under law. He ended by reminding the court of its own unanimous opinion two years previously, when it had upheld a state's labor law in Atkin v. Kansas:

It is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against merely arbitrary power. That is unquestionably true. But it is equally true—indeed, the public interests imperatively demand—that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably, beyond all question, in violation of the fundamental law of the Constitution. (Lochner, p. 74)

In other words, the collective "will of the people," expressed as legislation, had rights too—perhaps not equal to those granted individuals by the "fundamental law," but worth guarding.

The second, terser, dissent, submitted by Oliver Wendell Holmes Jr. (1841–1935), did not enter the argument over the limits of police powers. Instead, Holmes noted that the state's right to infringe individual freedoms was not itself in question, and never had been: "The liberty of the citizen to do as he likes . . . is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not" (Lochner, p. 75). Because individual liberty was thus in practice clearly not absolute, he argued, what was really at stake in Lochner was the endorsing of "a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire" (Lochner, p. 75). In the absence of absolute principles, Holmes famously advocated a particularist, pragmatic jurisprudence—"General propositions do not decide concrete cases"—and, like Harlan, concluded by acknowledging in most cases the primacy for law of the collective "will of the people," or simply "dominant opinion":

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. (Lochner, p. 76)

LOCHNER'S AFTERMATH: LEGAL PRAGMATISM

Harlan and Holmes lost the argument, but their opinions pointed out the course of legal philosophy for the next generation and beyond. In Lochner's outcome, classical liberal idealism prevailed over a nascent style of legal thinking, suggested in both dissents, that was at once scientifically empirical and flexible to the point of relativism: a jurisprudence that reflected society's real practices rather than prescribed them in accordance with a transcendent idealized "law." This legal pragmatism continued to articulate itself in a reform movement and growing body of legal theory over the following three decades.

Roscoe Pound (1870–1964), for example (the influential dean of Harvard's Law School and a leader among the "Progressive" legal theorists of the 1900s and 1910s), announced in 1914 that a "social-philosophical school" of thought could now understand law's purpose in distinctly modern, utilitarian terms that explicitly declared both Lochner and Locke outdated: "Instead of the maximum of individual self-assertion consistent with a like self-assertion by all others, we are now putting as the end the maximum satisfaction of human wants, of which self-assertion is only one" (pp. 367–368). By the 1930s a loosely defined movement of "Legal Realism," the inheritor of Pound's socially Progressive law, had developed at Harvard, Columbia, and other leading law schools, generally taking as its philosophical foundation an acknowledgement of the factitious or socially determined nature of law. The final assault on Lochner's classical idealist/individualist principles came with the appointment of pragmatically minded judges like Benjamin Cardozo and Felix Frankfurter to Franklin D. Roosevelt's Supreme Court, where the legal foundation for a society based on the collective rather than the individual would be confirmed.

LOCHNER AND LITERATURE

The social forces that called forth Lochner and its dissents—urbanization, industrialization, the increasing asymmetry of employee/employer relations—also shaped American literature of the late nineteenth and early twentieth centuries in plain ways. Literary naturalism's general exposure of the failure of traditional liberal individualism, whether in the face of biology or society, repeatedly explored the question at the heart of Lochner: how can the Lockean individual negotiate with and stand against the combine, the machine, the impersonal "system" of distributed powers? And, as they articulated their indictment of the "system," naturalists typically deployed the techniques of realistic, particularized reportage advocated by Émile Zola—and by Judge Harlan in his substitution of data for "common knowledge."

Literary products more or less explicitly dramatizing Lochner's dissents—narratives of labor and inequity—are ubiquitous, perhaps beginning with Hamlin Garland's "Under the Lion's Paw" (1891), which reveals precisely the power asymmetries of contract and the perils of reliance on liberal assumptions. They include the novels of Frank Norris, Upton Sinclair, and Theodore Dreiser; they continue into the Great Depression and New Deal most famously with John Steinbeck's The Grapes of Wrath (1939). While many of these writers and others like them were social reformers and critics, sharing the perspective of Progressive legal theorists such as Roscoe Pound, they rarely in their work envisioned a well-regulated future organized around Pound's "maximum satisfaction of human wants." Although an outmoded individualism provided no place for the naturalists to stand, collectivism offered no clear alternative. Their works returned compulsively to images of imbalances of power, of personal impotence, and of structure itself as an irresistible antagonist. Frequently, they ended narratives with the literal annihilation of the protagonist by some impersonal process.

In other words, although much literature of the Lochner era appeared to follow the leads of Harlan and Holmes in its social awareness and its particularism, its trend was tragic rather than utopian. The lure of the free individual was more powerful in literary practice than in the legal theory that followed Lochner. One result was literary high modernism's well-known nostalgia, a pervasive longing for a strong time of clear and equitable relations among people, uncluttered by the confusions of modern commerce and state. Another was the emergence in the century's first two decades of a popular fantasy literature that provided protagonists and readers with a landscape of empowered, "naturally" free individuals: the western, beginning with Owen Wister's The Virginian (1902) and including Zane Grey's immensely popular novels of the 1910s and later (as well as pseudo-westerns like Edgar Rice Burroughs'sTarzan books or Martian romances). The western perhaps manifests the clearest literary response, a conservative one, to the conditions that generated Lochner: the imagining of a utopia, not in the present, but in an ahistorical past, something akin to Locke's "state of nature" itself, where the individual continues to take his destiny into his own free hands, where his law (sometimes explicitly an outlawed law) inevitably prevails. Nothing could be farther from Lochner's vexed but necessary world of bakers, regulations, and statistics.

See alsoJurisprudence

BIBLIOGRAPHY

Primary Works

Lochner v. New York, 198 U.S. 45 (1905).

Locke, John. Two Treatises of Government. Edited by Peter Laslett. Cambridge, U.K.: Cambridge University Press, 1988.

Pound, Roscoe. "Law and Liberty." In Lectures on the Harvard Classics, vol. 41, edited by William Allan Neilson et al., pp. 367–368. The Harvard Classics. New York: P. F. Collier & Son, 1914.

Secondary Works

Gillman, Howard. The Constitution Besieged: The Rise and Demise of the Lochner Era Police Powers Jurisprudence. Durham, N.C.: Duke University Press, 1993.

Kens, Paul. Lochner v. New York: Economic Regulation on Trial. Lawrence: University Press of Kansas, 1998.

Smith, Rogers M. Liberalism and American Constitutional Law. Cambridge, Mass.: Harvard University Press, 1985.

Tribe, Laurence H. American Constitutional Law. 2nd ed. Minneola, N.Y.: Foundation Press, 1988.

John N. Swift

LOCHNER V. NEW YORK

In Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the U.S. Supreme Court struck down a state law restricting the hours employees could work in the baking industry, as a violation of the freedom of contract guaranteed by the due process clause of the fourteenth amendment. This seemingly minor decision spawned a new era in constitutional interpretation.

constitutional law is often divided into three eras, the center of which is Lochner. In the pre-Lochner era (1789–1870), courts interpreted the Due Process Clause of the fifth amendment to have primarily a procedural content that protected persons against arbitrary governmental deprivations of life, liberty, and property. This procedural right meant that individuals were entitled to sufficient notice and a fair hearing before the government could take harmful action against them. Courts reviewed only the manner in which a particular law infringed on a substantive right, without evaluating the importance of the right or the severity of the infringement.

During the Lochner era (1870–1937), courts interpreted the Due Process Clauses of the Fifth and Fourteenth Amendments to have a substantive content that protected from governmental intrusion certain economic and property interests, such as the right of employers and employees to determine the terms and conditions of their employment relationship. (Though Lochner was decided in 1905, prior cases going back to 1870 contributed to Lochner and are included in the Lochner era.)

The post-Lochner era (1937–present) is marked by decreased constitutional protection for economic and property rights and increased recognition of "fundamental" constitutional rights that protect minorities from discrimination, safeguard the interests of criminal defendants, and delineate a sphere of private conduct upon which the state may not encroach.

The Lochner era was an outgrowth of the U.S. industrial revolution. During the second half of the nineteenth century, the output of manufactured goods tripled, and the value of those goods soared from $3 billion to over $13 billion. The national labor force kept pace during this period, growing from 13 million to 19 million workers. Along with the growth of industry came a large disparity in the wealth and working conditions of U.S. citizens. Although some business proprietors were working fewer hours and making more money, many of their employees were working more hours in unhealthy conditions for scant wages. The bakers of New York were one group of such workers.

New York bakers at this time reportedly worked 12 hours a day, seven days a week, in a confined and uncomfortable environment. This lifestyle left little time for rest, causing some bakers to live in their kitchen and sleep at their workbench. A number of bakers died at an early age, and others contracted debilitating diseases. In 1895 the New York state legislature unanimously passed the Bakeshop Act, which attempted to address these problems by limiting the working hours of bakers to ten a day and 60 a week.

In 1902 Joseph Lochner, who owned a small bakery in Utica, was fined $50 for permitting an employee to work more than 60 hours in a week. During the trial Lochner offered no defense and was convicted. On appeal he challenged the constitutionality of the Bakeshop Act, claiming that it interfered with his right to pursue a lawful trade. The state defended the statute by arguing that it represented a legitimate exercise of its police powers, pursuant to which the legislature may enact laws to preserve and promote the health, safety, and morality of society.

Lochner's claim did not lack precedent. In 1897 the Supreme Court nullified a Louisiana statute that attempted to regulate contracts between state residents and out-of-state insurance companies (Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832 [1897]). Holding that that statute impaired the liberty of contract guaranteed by the Due Process Clause of the Fourteenth Amendment, the Court said that the Louisiana resident had a right "to live and work where he will," "to earn a livelihood by any lawful calling," and to "enter into all contracts which may be proper, necessary, and essential to … carrying out … the purposes above mentioned."

In addition to this precedent, the general mood of the country also favored Lochner's claim. Despite the universal support for the Bakeshop Act in the New York Legislature, a large number of U.S. citizens were still committed to the idea that in a capitalistic market, a government that governs least governs best (an idea that reflects laissez-faire economics).

In a 5–4 decision, the Supreme Court upheld Lochner's due process claim, striking down the Bakeshop Act as an interference with the right of employers and employees "to make contracts regarding labor upon such terms as they may think best, or upon which they may agree." Writing for the majority, Justice rufus w. peckham said that despite statistics indicating that the baking industry was not as healthy as some other trades, the common understanding of the Court suggested otherwise. "The trade of a baker," Peckham wrote, "is not … unhealthy … to such a degree which would authorize the legislature … to cripple the ability of the laborer to support himself and his family."

The Court acknowledged that state governments possess police powers to protect the health and safety of their residents. However, the Court said, a statute must have a direct relation to a material danger that would compromise the public health or the health of employees before it may restrict the hours of labor in any trade or profession. In this case, the Court concluded, the connection between the Bakeshop Act and the health and welfare of New York bakers was too remote.

Two dissenting opinions were written in Lochner, one by Justice oliver wendell holmes jr., and the other by Justice john m. harlan. Both dissents attacked the majority opinion as judicial activism and extolled the virtues of judicial self-restraint.

Harlan conceded that the Due Process Clause contains a substantive content that protects the liberty of contract. But this liberty, Harlan emphasized, may be circumscribed by state regulations that are calculated to promote the general welfare. Such regulations, Harlan argued, must be sustained by state and federal courts unless they clearly exceed legislative power, bear no substantial relation to societal welfare, or invade rights secured by fundamental law. Harlan concluded that doubts as to the validity of a statute must be resolved in favor of upholding its validity. Applying this standard, Harlan found the Bakeshop Act valid.

Holmes's dissent is considered a classic exposition of judicial self-restraint. As part of the U.S. system of democracy, Holmes stated, a majority of adults residing in any state have the "right to embody their opinions in law," even if those opinions are tyrannical or injudicious. It is the judiciary's role in this system to interpret and apply the laws passed by the coordinate branches of government.

Notwithstanding the Court's decision in Lochner, state legislatures were apparently free to maintain a paternalistic role when enacting similar laws that applied only to women. Three years after Lochner, the Court upheld the constitutionality of an Oregon statute that restricted women from working more than ten hours per day in a mechanical establishment, factory, or laundry. Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908). Although the statute was very similar to the New York statute, except that it applied to women, the Court clearly based its decision upon its perception that women were inferior to men. According to the majority opinion written by Justice david brewer, "That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious … history discloses the fact that woman has always been dependent upon man." Because the Court found that the statute was designed for what it considered the necessary protection of women in the workplace, the Court upheld the statute as constitutional under the Fourteenth Amendment. In doing so, the Court specifically left the ruling in Lochner intact.

Lochner remained the controlling precedent for nearly 30 years; it was overruled finally in west coast hotel co. v. parrish, 300 U.S. 378, 57 S. Ct. 578, 81 L. Ed. 703 (1937). Parrish examined the validity of a Washington state statute that established a minimum wage for women. A hotel owner challenged the constitutionality of the statute on the grounds that it violated his liberty of contract guaranteed by the Fourteenth Amendment.

The hotel owner relied on Lochner and a series of subsequent cases that nullified various state regulations as inconsistent with the substantive rights protected by the Due Process Clause. One of these cases, Adkins v. Children's Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785 (1923), invalidated a similar minimum wage law in the District of Columbia. But the Supreme Court was no longer persuaded by the rationale underlying Lochner and ruled that the Washington statute was a reasonable exercise of the state's police powers.

In the 32 years between Lochner and Parrish, the United States was confronted by a stock market crash in 1929, which precipitated the Great Depression of the 1930s. President franklin d. roosevelt attempted to combat some of the more serious problems of the depression by initiating a host of federal laws known collectively as the new deal. These events made many U.S. citizens more sympathetic to governmental largesse.

The Supreme Court was also affected by these events. Where Lochner had underscored free-market laissez-faire principles, Parrish highlighted the unequal bargaining power of employers and employees, as well as the oppression and exploitation of female workers. Freedom of contract, the Supreme Court said in Parrish, is not an absolute and uncontrollable liberty.

Any lingering doubts as to the validity of Lochner were eliminated by the Supreme Court in United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938), which held that courts must sustain state and federal laws that regulate economic interests, unless there is no rational basis to support them. By contrast the Court said that legislation that "appears on its face to be within a specific prohibition of the Constitution … restricts … political processes … [or is] prejudic[ial] against discrete and insular minorities" will be subject to stricter scrutiny.

The Carolene Products case ushered in the post-Lochner era. During this era the Supreme Court has offered little constitutional protection for contract and other property rights. At the same time, the Court has offered increasing protection against legislation that touches upon a fundamental constitutional right or denies a governmental benefit to a suspect class of persons, what the Court in Carolene Products called "discrete and insular minorities."

Fundamental rights include most of the rights enumerated in the first ten amendments to the Constitution, as well as the right to privacy, the right to travel, the right to vote, and the right to education. Suspect classes include groups of persons who are discriminated against on the basis of race, gender, national origin, or other "immutable" genetic characteristics (frontiero v. richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 [1973]).

further readings

Agomo, Chioma Kanu. 1995. "Work Environment and Women: U.S. Practice." Annual Survey of International and Corporate Law 41.

Bieneman, Charles A. 1991. Review of Judicial Power and Reform Politics: The Anatomy of Lochner v. New York, by Paul Kens. Michigan Law Review 89.

Bork, Robert H. 1990. The Tempting of America. New York: Free Press.

Ely, James W., Jr., 1991. Review of Judicial Power and Reform Politics: The Anatomy of Lochner v. New York, by Paul Kens. Vanderbilt Law Review 44.

Kordana, Kevin A. 1995. "Law Firms and Associate Careers: Tournament Theory Versus the Production Imperative Model." Yale Law Journal 104.

Shell, G. Richard. 1993. "Contracts in the Modern Supreme Court." California Law Review 81.

cross-references

Due Process of Law; Jurisprudence; Labor Law; Rational Basis Test; Substantive Law.

LOCHNER V. NEW YORK

LOCHNER V. NEW YORK, 198 U.S. 45 (1905). Lochner, proprietor of a Utica, New York, bakery, had been arrested, tried, and convicted for violation of a state law setting maximum work hours for workers in the baking industry at ten hours per day and sixty hours per week. Seven years earlier, in Holden v. Hardy, the Supreme Court had upheld a Utah law regulating hours for workers in dangerous industries. But in Lochner, the Court argued that such protections were unnecessary in industries that required care in cleanliness and sanitation. The Court, rejecting the New York law's stated intent to safe-guard public health, held the act void as a violation of freedom of contract.

BIBLIOGRAPHY

Gillman, Howard. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. Durham, N.C.: Duke University Press, 1993.

Kens, Paul. Judicial Power and Reform Politics: The Anatomy of Lochner v. New York. Lawrence: University Press of Kansas, 1990.

———. Lochner v. New York: Economic Regulation on Trial. Lawrence: University Press of Kansas, 1998.

W. BrookeGraves

Andrew C.Rieser

See alsoLabor Legislation and Administration ; Wages and Hours of Labor, Regulation of ; West Coast Hotel Company v. Parrish ; andvol. 9:Women in Industry (Brandeis Brief) .