In the fifth installment of his series highlighting some of the worst-reasoned Supreme Court decisions in American history, Bryan explores how one decision led to an entire era of invalidating efforts to curb the excesses of employers and bolster the common good through, ironically, an appeal to the freedom of individual workers.
Freedom can be a double-edged sword Often, this can be seen in American history as the tendency of Europeans and their descendants to define freedom as the ability to act without considering the implications of one’s own actions; the freedom to oppress others, essentially. Yet this is not the only way in which the principle of individual freedom has been used to undermine collective rights and a better quality of life for the masses. One such instance in the late 19th century made it all the way to the Supreme Court as an employer sought to challenge the Constitutional basis of mounting Progressive reforms that protected the rights and lives of workers. The resulting decision in Lochner v. New York ushered in a whole new era of jurisprudence that hamstrung early efforts to rein in the industrial excesses of the Gilded Age.
In 1899, Utica bakery owner Joseph Lochner was charged with violating New York’s Bakeshop Act, passed just four years previously in 1895. The law mandated that bakery employees could not work more than 60 hours in a week, or more than 10 hours in a single day. It was common for bakeries of the era (and today, as well) to employ two shifts of workers: one that prepared dough in the evening, and another that actually baked the products in the early morning. Lochner, however, only used one shift of workers, providing them with an onsite dormitory in which to sleep between the evening and morning work. Generously for the era, he actually continued to pay the bakers for the hours they slept at the same rate—but this then meant they were working double shifts a day, violating the New York law. Lochner was initially fined $25, but when he continued using these methods, he was fined again, this time for $50. It was this second fine that Lochner appealed, ultimately appearing before the Supreme Court in 1905.
In a 5-4 decision, the Court sided with Lochner: New York’s Bakeshop Act was indeed unconstitutional. Citing the 1897 ruling in Allgeyer v. Louisiana that had established the right to freely enter contracts as protected under the 14th Amendment’s guarantee of due process, Justice Rufus Peckham asserted that this right also extended to one’s ability to buy or sell labor. Only in the case of circumstances that substantially justified government invention could that right be interfered with. According to the majority of justices, such a right did not exist in this case. Comparing fatality statistics to heavy industry, of all things, they alleged that bakeries were not particularly dangerous, and there was no public health concern for bakers working long hours. If a state wasn’t attempting to literally save peoples’ lives, and in sufficiently large numbers, the majority declared that it could not regulate.
So why does Lochner v. New York qualify for this series? These skeptical and strict, one might say dubiously so, qualifications on when government may legislate protections for workers are certainly disagreeable, more in line with an old (and increasingly new again) era of extreme laissez faire economics, but that’s not the kind of case I discuss here. This case is one of the most controversial in the history of the Court, and was from the moment of its decision, because it so selectively applied this “freedom of contract” in defiance of so many other precedents of law dating back as far as the Middle Ages. As Justice Oliver Wendell Holmes, Jr. pointed out in his (equally famous) dissent, almost all of government and society is based on legislating and providing for the kinds of protections and services the majority rejected. Laws limiting interest rates, banning work on Sundays, not to mention taxation and its various uses which citizens may or may not approve of all essentially “violate” freedom of contract, and yet the court did not take issue with them. It appears that only interference that might affect employers’ ability to exploit their workers qualified as infringement (and Holmes rightly pointed out that basing a decision on economic rather than legal theory is the very definition of irresponsible jurisprudence).
With this decision, Joseph Lochner lent his name to an entire era, as freedom of contract and its associated theories provided the basis to undercut worker protections in areas from working hours to minimum wage laws to union membership. Happily, that Lochner era is long past, and it has been replaced with one based on another dissent from the same case, this one joined by the other three minority justices that did not join Holmes’. This one, written by John Marshall Harlan, had contended that while the right to enter contracts certainly could be infringed in an unconstitutional manner, it is up to the plaintiff to prove it is so, not up to the government to prove it is necessary (Harlan also admirably pointed out that regardless of relative statistics, the New York law was clearly attempting to safeguard bakers’ well being from the dangers of their own profession). Truth be told, I don’t know if this current standard is much better, as assuming the government is justified and must be proven wrong, in other words assuming constitutionality except in egregious breaches, is a path to a whole other reprehensible, dare I say cowardly, school of jurisprudence. Hopefully that doesn’t provide more fuel for this series in future years.