Making up Rights?: Lochner v. New York (1905)
In April 1901, Utica, New York bakeshop owner, Joseph Lochner, was arrested for allowing one of his few employees, baker Aman Schmitter, to work more than sixty hours in a week. A grand jury indicted Lochner for violating a New York bakeshop law regulating work hours. In February 1902, he was tried, convicted, and fined fifty dollars for his misdemeanor crime.
The law in question that Lochner was criminally penalized for violating was the New York Bakeshop Act (1895) that the state legislature passed unanimously. The law primarily prevented employers from either allowing or requiring employees from working more than ten hours in a day or sixty hours in a week. The laws also mandated a variety of other sanitation provisions for bakeshops to protect the health of workers and consumers.
The New York legislature passed the act during a period of reform known as progressivism, which was a movement for the state and national governments to regulate business for the public interest and to achieve social justice. The legislature passed this law because “muckraking” journalists exposed the long working hours and possible threats to public health in large, crowded urban areas such as New York City. The conditions of the bakeries were mainly connected to their location in the damp, dirty basements of urban tenements where immigrants lived in extreme squalor. An alliance of progressive reformers, public health commissioners, and members of the Journeymen Bakers’ and Confectioners’ International Union of America lobbied successfully for the passage of the bill.
Henry Weismann was one of the leaders of the bakers’ union who helped steer the bill through the legislature. He soon became disgruntled with the union and resigned. He opened two bakeshops of his own, worked with the Retail Bakers’ Association, and became a lawyer. Weismann took on Lochner’s case and defended him against the prosecution under the very law that Weismann had helped guide through the state legislature.
Weismann argued that Lochner’s Utica clean and airy bakery was not a threat to public health nor did Lochner coerce his employee to work unusually long hours that endangered his life like mining or factory work. Weismann further argued that the state had illegitimately exercised its “police powers” regulating the health, safety, welfare and morals of its citizens.
The Supreme Court announced its decision on April 17, 1905. In the 5-4 decision read by Justice Rufus W. Peckham, the majority of the Court invalidated the New York Bakeshop Act as a violation of “liberty of contract.” The law “necessarily interferes with the right of contract between employer and employees, concerning the number of hours which the latter may labor in the bakery of the employer.” The Court argued that it was not “substituting the judgment of the Court for that of the legislature.” The majority reasoned that the state simply could not regulate anything that it wanted within its borders especially when it violated an essential liberty of individuals.
Justice John Marshall Harlan dissented and argued that the Court should not have declared the law unconstitutional unless it was
“plainly, palpably, beyond all question, inconsistent with the Constitution.” He asserted that the Court “expanded the scope of the Fourteenth Amendment far beyond the original purpose, and brought under the supervision of the Court matters which belonged exclusively to the legislative departments of the states.”
Justice Oliver Wendell Holmes also dissented and maintained that the will of state legislatures should be upheld unless they infringed upon the fundamental principles of American law and the Constitution. He argued that the decision reflected the popular idea of the time of Social Darwinism, or survival of the fittest in the private economy. He wrote that, “A constitution is not intended to embody a particular economic theory.” Holmes thought the Court was creating a new fundamental right not actually in the written text of the Constitution.
The Lochner decision was a highly controversial case and remains so in arguments over jurisprudence in law schools and law journals. Indeed, the period from after the Civil War to the New Deal is known as the “Lochner era” for its supposed conservative jurisprudence protecting property rights and advancing Social Darwinism. Moreover, it has even become a verb—to “Lochnerize”—used when criticizing judicial activism and advancing rights not found in the Constitution.
The decision found its origins in the Slaughter-House Cases (1873), in which Justice Stephen Field dissented and advanced the argument the Due Process Clause of the Fourteenth Amendment protected “the liberty of citizens to acquire property and pursue happiness,” and the “right to pursue an ordinary trade or calling.” The idea of “substantive due process” instead of merely “procedural due process” continues to be controversial because it has led both a conservative and liberal Court to advance rights such as liberty of contract or the right to privacy not found in the Constitution. Each side criticizes substantive due process as “judicial activism” when it disagrees with the outcome and right articulated.
Supporters of the Lochner decision argue that the Supreme Court posited a natural law right consistent with the ideals of the Declaration of Independence and constitutionalism. The Constitution does not specifically protect the liberty of contract but the Contract Clause does protect the sanctity of contracts from being impaired.
Critics of the Lochner decision have attacked it from different sides of the ideological spectrum. Conservatives worry about going beyond the text of the Constitution to protect rights under substantive due process because it has resulted in decisions such as Roe v. Wade (1973). Liberals criticize the decision for being an example of a Social Darwinist court that invalidated government regulation of the economy or protected property rights until the New Deal revolution in 1937 when the Court permitted much greater regulation under the Commerce Clause.
The Lochner decision raised as many issues as it settled especially related to the principle of federalism. The Court advanced the principle of liberty of contract and restricted the police powers of the state, but upheld state regulation of working hours in mining or women’s labor in other cases before and after Lochner. Moreover, over the course of the twentieth century, the Court increasingly used substantive due process to invalidate the will of the state legislatures even when almost all restricted an action the Court believed to be an essential constitutional right of individuals. This seminal case and its consequences will continue to be debated.
Lochner v. New York (1905) Supreme Court decision:
Tony Williams is a Constituting America Fellow and the author of five books including Washington & Hamilton: The Alliance that Forged America.