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Dueling perspectives on Lochner v. United States

Lochner v. New York. The 1905 case represents an entire era of Supreme Court jurisprudence – the “Lochner era.” But what was it about? And was it a good or bad decision? Paul Kens and Randy Barnett recently debated the case and these issues in an event sponsored by the Supreme Court Historical Society; Victoria Nourse served as moderator.

Lochner has “not enjoyed a very good reputation, to put it mildly,” Kens asserted, “and it deserves that reputation.” But Barnett countered that the case was “[p]robably the right decision.”

The case was a challenge to the Bakeshop Act, passed unanimously by the New York state legislature in 1895, that restricted business practices in bakeshops. As Kens explained, working conditions in the baking industry were atrocious, and many workers regularly logged more than one hundred hours in a week. One particular regulation – a limit on the number of hours a bakery employee could work per day – was intended to remedy this problem.

Or perhaps, as Barnett countered, the real story is a little different. The corrupt state government favored large bakery corporations, which even at reduced hours could employ enough workers to keep factories running throughout the night, as baking at an industrial scale requires. Smaller Italian- and Jewish-owned bakeries would be forced to close – which, Barnett suggested, was exactly the government’s intent.

Either way, Joseph Lochner soon found himself arrested for violating the Bakeshop Act, and his case worked its way up to the Supreme Court. In a five-to-four opinion written by Justice Rufus Peckham, the Court struck down the regulation on the ground that it violated an individual’s liberty of contract, which the majority held was implicit in the Fourteenth Amendment.

Kens sought to discredit the pro-Lochner argument that defends the decision on the ground that liberty from governmental regulation is a dominant characteristic of American constitutional tradition, even if it is not explicitly protected by the Constitution. Kens explained that, by the early twentieth century, states routinely regulated business practices through (among other restrictions) licensing requirements, price and quantity controls, and employment rules.

Such laws, Kens continued, demonstrate that the prevailing understanding at the time entrusted government with a duty to use its police power – its legitimate authority – to protect the rights of individuals and the community. For instance, Kens referenced the 1877 opinion for the Court in Munn v. Illinois, in which Chief Justice Morrison Waite wrote that with the police power the government regulates conduct and, when necessary for the public good, how people and businesses should use private property.

The police power was extensive but not unlimited, Kens explained. Generally speaking, governments could not unilaterally confiscate property. In Kens’s view, the legal sleight of hand performed by certain ideologically motivated lawyers and jurists after the Fourteenth Amendment’s passage was to collapse the meaning of “regulate” into “confiscate” and to associate the “police power” with communism and paternalism.

Agreeing with Kens about the unsavory working conditions, unequal bargaining power, and prevalent governmental regulations at the time, Barnett challenged the notion that Lochner supporters must necessarily oppose government regulation.

Rather, in Barnett’s view, the Court at the time of the decision quite simply had a clear pattern for assessing health-and-safety regulations like the one at issue in Lochner: Was the regulation irrationally related to the proposed objective, or did the law arbitrarily interfere in the property of some for the benefit of others? If the answer to either of those questions was no, it suggested impermissible ulterior motives – like forcing Italian and Jewish bakeries to close. And in Barnett’s view, the Court simply determined that the regulation at issue failed both criteria. No secret judicial revolution here.

The problem many today have with Lochner, Barnett suggested, comes not from the case itself but from the practice of constitutional law before the present-day Supreme Court. In the doctrines of contemporary constitutional law, Barnett explained, certain key “fundamental rights” are very strongly protected. Conversely, governments have wide leeway to regulate actions that fall outside these protected categories. As a result, scholars and jurists are very guarded over what rights are to be considered “fundamental.” From the contemporary “fundamental rights” approach, Barnett continued, the decision in Lochner would seem to elevate the right to contract to the level of a fundamental right without apparent justification. The Court in 1905, however, saw itself as simply evaluating a health-and-safety regulation, not establishing a new right.

Additionally, Barnett maintained that contemporary dislike of Lochner is largely the fruit of later constitutional arguments. According to Barnett, Lochner was generally considered a mundane case when decided. In fact, many editorial boards for newspapers around the country applauded the decision. As Barnett explained, however, contemporary constitutional law depends in large part on the precedents established by certain canonical and non-canonical cases – Lochner being an example of a non-canonical case from which advocates at the Court would try to distinguish their cases.

Citing in particular a 1978 article by Laurence Tribe that distinguished Lochner from the landmark privacy and sexual autonomy cases Griswold v. Connecticut and Roe v. Wade on the basis of the rights the Court chose to protect, not the process behind the judicial reasoning in the cases, Barnett alleged that progressives are motivated to keep Lochner – and the freedom of contract it represents – in the anti-canonical camp. Perhaps the Court would do well to return to pre-New Deal approaches to jurisprudence, Barnett closed.

Recommended Citation: Andrew Hamm, Dueling perspectives on Lochner v. United States, SCOTUSblog (Jun. 3, 2016, 1:33 PM),