Lochner v. New York

Facts

Joseph Lochner, who owned Lochner's Home Bakery in Utica, claimed that the New York Legislature's Bakeshop Act of 1895 was unconstitutional. The Bakeshop Act regulated health conditions in bakeries and prohibited employees from working in bakeries for more than ten hours per day or sixty hours per week. In 1899, Lochner was indicted on a charge that he violated Section 110 of Article 8, Chapter 415, of the Laws of 1897, as he had wrongfully and unlawfully permitted an employee working for him to work more than sixty hours in one week. He was fined $25 (equivalent to $700 in 2016). For a second offense in 1901, Lochner drew a fine of $50 (equivalent to $1,400 in 2016) from the Oneida County Court. Lochner appealed his second conviction. However, the conviction was upheld, 3–2, by the Appellate Division of the New York Supreme Court. He appealed again to the New York Court of Appeals, New York's highest court, where he lost, 4–3. He then took his case to the Supreme Court of the United States.

Lochner's appeal was based on the Fourteenth Amendment to the US Constitution: "... nor shall any State deprive any person of life, liberty, or property, without due process of law." In a series of cases starting with Dred Scott v. Sandford (1857), the Supreme Court established that the Due Process Clause (found in both the Fifth and Fourteenth Amendments) is not only a procedural guarantee but also a substantive limitation on the type of control that the government may exercise over individuals. Although that interpretation of the due process clause is a controversial one (see substantive due process), it had become firmly embedded in American jurisprudence by the end of the 19th century. Lochner argued that the right to contract freely was one of the rights encompassed by substantive due process.

Scholars have noted that when the Fourteenth Amendment was adopted in 1868, 27 out of 37 state constitutions had Lockean Provisos, which typically said: "All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring and possessing and protecting property: and pursuing and obtaining safety and happiness." As such clauses were "deeply rooted in American history and tradition," they likely informed the original meaning of the scope and nature of the fundamental rights protected by the Fourteenth Amendment in the eyes of Lochner-era justices.

The Supreme Court had accepted the argument that the due process clause protected the right to contract seven years earlier, in Allgeyer v. Louisiana (1897). However, the Court had acknowledged that the right was not absolute but subject to the police power of the states. For example, in Holden v. Hardy (1898), the Supreme Court upheld a Utah law setting an eight-hour work day for miners. In Holden, Justice Henry Brown wrote that while "the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety, or morals." The issue facing the Supreme Court in Lochner was whether the Bakeshop Act represented a reasonable exercise of the state's police power.

Lochner's case was argued by Henry Weismann, who had been one of the foremost advocates of the Bakeshop Act when he was Secretary of the Journeymen Bakers' Union. In his brief, Weismann decried the idea that "the treasured freedom of the individual ... should be swept away under the guise of the police power of the State." He denied New York's argument that the Bakeshop Act was a necessary health measure by claiming that the "average bakery of the present day is well ventilated, comfortable both summer and winter, and always sweet smelling." Weismann's brief contained an appendix providing statistics showing that bakers' mortality rates were comparable to that of white-collar professionals.

Judgment

The Supreme Court ruled 5–4 that the law limiting bakers' working hours did not constitute a legitimate exercise of state police powers and so was unconstitutional. It argued for freedom of contract, and that unequal bargaining power was irrelevant. The opinion of the Court was delivered by Justice Rufus Peckham.

Harlan's dissent

Justice John Marshall Harlan wrote a dissenting opinion, which was joined by Justices Edward Douglass White and William R. Day. Harlan contended that the liberty to contract is subject to regulation imposed by a state acting within the scope of its police powers. Harlan offered the following rule for determining whether such statutes are unconstitutional:

Harlan asserted that the burden of proof should rest with the party seeking to have such a statute deemed unconstitutional.

Harlan's dissent argued that the Court gave insufficient weight to the state's argument that the law was a valid health measure addressing a legitimate state interest. Harlan contended that it was "plain that this statute was enacted to protect the physical well-being of those who work in bakery and confectionery establishments." Responding to the majority's assertion that the profession of a baker was not an unhealthy one, he quoted at length from academic studies describing the respiratory ailments and other risks that bakers faced. He argued that the Supreme Court should have deferred to the New York Legislature's judgment that long working hours threatened the health of bakery employees. According to Harlan, "If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere."

Holmes' dissent

Justice Oliver Wendell Holmes wrote three paragraphs accusing the majority of judicial activism, claiming the case was "decided upon an economic theory which a large part of the country does not entertain." The Fourteenth Amendment did not enshrine liberty of contract, because laws against Sunday trading and usury were "ancient examples" to the contrary: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics" (a book advocating strict laissez faire philosophy). He concluded, "a constitution is not intended to embody a particular economic theory."

Significance and legacy

The Supreme Court's due process jurisprudence over the next three decades was inconsistent, but it took a narrow view of states' police powers in several major labor cases after Lochner. For example, in Coppage v. Kansas (1915), the Court struck down statutes forbidding "Yellow Dog contracts." Similarly, in Adkins v. Children's Hospital (1923), the Supreme Court held that minimum wage laws violated the due process clause, but Chief Justice William Howard Taft strongly dissented, suggesting that the Court instead should have overruled Lochner. The doctrine of substantive due process was coupled with a narrow interpretation of congressional power under the commerce clause. Justices James McReynolds, George Sutherland, Willis Van Devanter, and Pierce Butler emerged during the 1920s and 1930s as the foremost defenders of traditional limitations on government power on the Supreme Court and so were collectively dubbed by partisans of the New Deal the "Four Horsemen of Reaction". All four believed in laissez faire economics.

In 1934, the Supreme Court decided Nebbia v. New York stating that there is no constitutional fundamental right to freedom of contract. In 1937, the Supreme Court decided West Coast Hotel Co. v. Parrish, which expressly overruled Adkins and implicitly signaled the end of the Lochner era. The decision repudiated the idea that freedom of contract should be unrestricted:

Although the Supreme Court did not explicitly overrule Lochner, it agreed to give more deference to the decisions of state legislatures. The Court sounded the death knell for economic substantive due process several years later in Williamson v. Lee Optical of Oklahoma (1955). In that case, a unanimous Supreme Court declared, "The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought."

Coming at a time of mounting political pressure over the judiciary's stance toward the New Deal, the Court's shift is sometimes called "the switch in time that saved nine."

Modern substantive due process

In the post-Lochner era, the Supreme Court has applied a lower standard of review to confront restrictions on economic liberty. A higher standard is used in reviewing legislation infringing on personal liberties. A line of cases dating back to the 1923 opinion by Justice McReynolds in Meyer v. Nebraska, citing Lochner as establishing limits on the police power, has established a privacy right under substantive due process. More recently, in Roe v. Wade (1973), the Supreme Court held that women have a privacy right to determine whether or not to have an abortion. In 1992, Planned Parenthood v. Casey reaffirmed that right, but the Court no longer used the term "privacy" to describe it.

Scholarly reaction

The Supreme Court's decision in Lochner v. New York has been criticized by legal scholars. Law professor Bernard Siegan described it as "one of the most condemned cases in United States history." According to the Center for American Progress, a left-leaning think tank, law professors often use Lochner, along with Plessy v. Ferguson and Korematsu v. United States, as examples of "how judges should not behave."

Lochner is sometimes used as shorthand for extreme right-wing constitutional theory. However, it has come under harsh criticism from conservative and libertarian jurists as well because of the Lochner Court's embrace of substantive due process, a doctrine at odds with the original understanding of the Constitution. For example, conservative legal scholar Robert Bork called the decision an "abomination" and the "quintessence of judicial usurpation of power." Similarly, former Attorney General Edwin Meese said that the Supreme Court "ignored the limitations of the Constitution and blatantly usurped legislative authority." Siegan, a self-described libertarian, described it as "a symbol of judicial dereliction and abuse."

However, the decision also has attracted defenders by libertarians: the Cato Institute and the scholars Richard Epstein and Randy Barnett, who argue that Lochner was correct in its protection of economic liberty. Randy Barnett has argued that Lochner's presumption in favor of liberty of contract was basically right; the decision was wrong only in that it perpetuated the misinterpretation of the Fourteenth Amendment that was established in the Slaughter-House Cases. According to Barnett, liberty of contract is properly found in the Privileges or Immunities Clause, not in the Due Process Clause of the Fourteenth Amendment. David Bernstein, in Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, argues that the decision in Lochner was well grounded in Supreme Court precedent and that the decision's emphasis on limits to the states' police powers informed the Court's early civil liberties and civil rights cases.