Lochner v. New York
Bill Long 10/20/05
198 US 45, Decided April 17, 1905
This case, which still sends shivers up people's spines, was decided by a divided (5-4) US Supreme Court precisely 100 years ago. Like Holmes' The Common Law (1881), which everyone reveres but no one reads, so Lochner is generally not read anymore because it stands for the supposedly discredited notion of "substantive due process." The purpose of this essay is to get beyond labels and describe the case in its time, focusing on the facts and law, the decision of the majority and the major points of the two dissentings opinions.
Facts and Underlying Law
Plaintiff employer was charged with violating an 1897 NY statute which provided that no employee shall be "required or permitted" to work in a bakery more than 10 hours/day or 60 hours/week. He had hired bakers to work for longer shifts. Other sections of the statute required bakery employers to provide adequate drainage, plumbing, and ventilation of the facilities (sec. 111); adequte construction of facilities with cement and plaster (sec. 112); adequate washrooms and sleeping places (sec. 113); regular bakery inspection (sec. 114); and adequate notice by the factory inspector to the owner when alterations needed to be made (sec. 115). Thus, the statute is a prime example of "Progressive Era" protective legislation that began to be passed in the 1890s. The employer was convicted of violating the hours section of the statute (110) by employing people in his Utica bakery who worked more than the statutorily-permitted hours, and his conviction was upheld on appeal by divided votes. The case came to the Supreme Court from the highest NY court, the Court of Appeals.
Legal Discussion of the Court
The legal question in this case may be easily stated: did the New York Legislature exceed its police powers (as it was phrased at the time) in enacting this legislation and so conflict with the 14th Amendment liberty guarantee? Justice Peckham (re)states the issue immediately: "The mandate of the statute that 'no employee shall be required or permitted to work,' is the substantial equivalent of an enactment that 'no employee shall contract or agree to work...'" He goes on:
"The statute necessarily interferes with the right of contract between the employer and employes concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment."
But the state also has its police powers, "the exact limitation of which have not been attempted by the courts," even though it is agreed that they "relate to the safety, health, morals and general welfare of the public." So, does this interest of the state in protecting the health of its citizens trump the rights of an owner freely to contract under the 14th Amendment?
Justice Peckham goes on to review the kinds of things that the state is able to do: protect the morals of its citizens, prohibit illegal contracts, etc., and then he reviews some of the Court's jurisprudence on the issue of the extent of these police powers. For example in Holden v. Hardy (169 US 366 (1898)), the Court upheld the power of the State of UT to limit underground mining hours to eight hours per day. In 1905 the Court upheld the ability of the State of MA to require vaccinations. But, he concluded, these cases do not shed light on the present situation.*
[*One might wonder why the Utah case is distinguishable, since it also had to do with regulating work in a dangerous environment.]
So, how is the Court to make a determination whether this statute exceeds the state's police powers? Peckham poses the question as follows: "Is this a fair, reasonable and appropriate exercise of the police power of the State, or it is an unreasonable, unnecessary and arbitrary interference with the right of an individual to his person liberty?" By stating the issue so baldly, you recognize that the Court is flying without instruments and will decide the case "by its guts." He says, in what must be one of the most disingenous comments I have seen in a long time, "This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the State, it is valid..." You can see why Roscoe Pound and others would have gone ballistic when reading these sentences. And the next few.
"The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable grounds for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker."
Why not? Because there is no contention that bakers aren't as smart as other workers. They are not "wards of the State." "We think that a law like the one before us involves neither the safety, the morals, nor the welfare of the public." And later, "We think that there can be no fair doubt that the trade of a baker, in and of itself is not an unhealthy one to that degree which would authorize the legislature to interfere with the right of labor..." On what basis did "we think" this to be the case? The Justice is silent on that one.
And then follows the parade of horribles. If we are to allow the state to limit the hours of bakers, what is next? Will it want to regulate hours of "printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a dry good clerk, ...a clerk in almost any kind of business?" If the Court permitted New York to do this, "no trade, no occupation, no mode of earning one's living could escape this all-pervading power..." Horror upon horror.
But the Court couldn't close without putting in a dig against the progressive types who are trying to save the world: "It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in realityh, passed from other motives." The Court declined, however, to identify these motives.
The tone of the majority's opinion is so self-righteous, so acid, that you can tell that hugely emotional issues are swirling right beneath the surface of the opinion. Times are changing and the Court will dig in its heels to prevent this from happening. And so the Court hands down this most activist decision. Justice Oliver Wendell Holmes dissented on two grounds. First he said that the Court's decision imports a certain economic theory into the Constitution ("the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics"). Second, he would defer to the legislature of a state.
"I think that 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."
See what Holmes is doing? He is articulating an early version of the "rational basis" test when it comes to the constitutionality of state statutes.
I will mention the other dissent, by Harlan, White and Day, more quickly. They go through the precedents of the Court in great detail to show that the New York law wasn't beyond the police power of a state. But they close with an interesting comment regarding the unhealthy nature of the baker's job. Quoting a Professor Hirt, they say:
"The labor of the bakers is among the hardest and most laborious imaginable, because it has to be performed under conditions injurious to the health of those engaged in it. It is hard, very hard work, not only because it requires a great deal of physical exertion in an overheated workshop and during unreasonably long hours, but more so because of the erratic demands of the public, compelling the baker to perform the greater part of his work at night, thus depriving him of an opportunity to enjoy the necessary rest and sleep, a fact which is highly injurious to his health."
What is not said in the opinion, however, is whether this information quoted by Justice Harlan was part of the "record" of the case and, if it was, to what extent it was recognized by the Court. One of the next big social welfare cases the Court faced, in 1908, would not let the Court ignore the social implications of laws. How did the Court have to face it? Through the Brandeis brief....
Copyright © 2004-2008 William R. Long