Lochner v. New York, 198 U.S. 45 (1905), argued 23–24 Feb. 1905, decided 17 Apr. 1905 by vote of 5 to 4; Peckham for the Court, Harlan and Holmes in dissent. In 1905 the Supreme Court invalidated a New York regulation limiting the hours of labor in bakeries to ten per day or sixty per week. At the turn of the century it was not uncommon for journeymen bakers to work more than one hundred hours per week. In cities, bakeries were usually located in the cellar of a tenement house. The combination of long hours exposed to flour dust, plus the dampness and extremes of hot and cold in tenement cellars, was thought to have an ill effect on workers' health. Because this unsanitary environment affected both the product and the workers, the state in 1895 enacted legislation to regulate sanitary conditions as well as reform working conditions and reduce the hours of labor prevalent in the industry.

Proponents of shorter hours statutes had for decades been arguing that such legislation was needed to promote citizenship, improve family life, and protect health and safety. But mostly shorter hours laws were seen as a means to assure fairness for workers who were in no position to bargain for equitable conditions of employment. Opponents based their arguments on theories of social Darwinism and laissez‐faire economics. To them such legislation represented unwarranted governmental intrusion into the marketplace.

Political conditions in late nineteenth‐century New York did not favor laws regulating business and industry. State government was dominated by a business oriented Republican political machine headed by boss Thomas Collier Platt. Large cities were controlled by Democratic machines like Tammany Hall. Organized labor, the most likely proponent of such laws, represented only a small portion of the labor force. State regulation of the baking industry was made possible only when other reformers took an interest. Journalist Edward Marshall observed the squalor of New York City's cellar bakeries while serving on the Tenement House Committee of 1894. Beginning with an editorial in the New York Press, he led a crusade to clean up the industry and improve conditions of employment. Marshall was able to convince mainstream urban reformers that problems in the baking industry were linked to tenement reform and social reform generally. Meanwhile, Henry Weismann, an opportunistic leader of the Bakers' Union, seized the moment by getting his union behind the proposed law. Marshall's connection with urban mainstream reformers, however, provided the clout needed to push bakeshop regulation through the legislature. With their backing, the Bakeshop Act unanimously passed both houses of the legislature and was signed by the governor on 2 May 1895.

The people hurt most by the new legislation were master bakers or “boss bakers.” These were owners of the small shops that made up the bread‐baking industry. Most employed fewer than five workers and operated on a small margin of profit. Joseph Lochner owned this type of shop in Utica, New York. In 1902 he was fined fifty dollars for allowing an employee to work more than sixty hours in one week. Lochner appealed his conviction to the Appellate Division of the New York Supreme Court, where he lost by a vote of 3 to 2. He then appealed to the New York Court of Appeals, where he lost again in a 4‐to‐3 ruling. Ironically, former labor leader Henry Weismann came to his aid. After a falling out with the Bakers' Union, Weismann had opened two bakeshops and become an active member of the Master Bakers' Association. He also studied law. With the help of attorney Frank Harvey Field, Weismann took Lochner's appeal to the Supreme Court of the United States.

Lochner claimed the Bakeshop Act violated the Fourteenth Amendment by depriving him of life, liberty, or property without due process of law. Due process was originally thought of only as a guarantee that laws would be enforced through correct judicial procedure, but the concept changed drastically in the late nineteenth century. Under a theory called “substantive due process” courts assumed the power to examine the content of legislation as well as the means by which it was enforced. In the late 1880s the doctrine was employed successfully to overrule state attempts at regulating railroads. But it carried the broader implication that the Court could invalidate any type of state economic or reform legislation determined to be in conflict with a right protected by the Constitution.

In Lochner's case, the right arguably infringed by New York's workday ceiling was “liberty of contract” (see Contract, Freedom of). This was not a right written into the Constitution. Rather, like substantive due process, it evolved through judicial interpretation of the Fourteenth Amendment. Justice Stephen Field, dissenting in the Slaughterhouse Cases (1873), first advanced the idea that the liberty protected by the Due Process Clause included “the right to pursue an ordinary trade or calling.” With subsequent decisions expanding the idea, it became the means by which the judicial supervision envisioned by proponents of substantive due process could be applied to laws regulating the employer‐employee relationship. Laws such as those requiring that wages be paid in cash rather than company scrip or setting standards for computing miners' pay were invalidated. By the 1880s this doctrine—liberty of contract—was being used by state courts to suggest that the Constitution protected a right to enter into any agreement free from unreasonable governmental interference. However, the U.S. Supreme Court had applied the theory only once, in Allgeyer v. Louisiana (1897).

Justice Rufus Peckham, who wrote Allgeyer, also wrote Lochner. He more firmly entrenched the doctrine of liberty of contract into constitutional law by ruling that New York's attempt to regulate hours of labor in bakeries “necessarily interfered with the right of contract between the employer and the employee.” Peckham held that the liberty protected by the Fourteenth Amendment included the right to purchase and sell labor. Therefore, any statute interfering with it would be invalid “unless there are circumstances which exclude that right.”

Liberty of contract was recognized, but it was not absolute. The protection it provided had to be balanced against the legitimate exercise of the state's power to govern. This authority was referred to as the police power of the states. As originally understood, the phrase was used to simply distinguish the function of state governments from that of the federal government. In the late nineteenth century, however, it was transformed into an ill‐defined limit on the power of states to govern within their own sphere of authority. When interpreted broadly as the duty to enhance the general welfare, police power could accommodate most any type of law. But Peckham had a narrow conception of police power in mind when he wrote the Lochner decision. For him only legislation designed to protect public morals, health, safety, or peace and good order represented a legitimate exercise of a state's police power.

In the Lochner case this became a question of whether the Bakeshop Act was necessary to protect the public health or health of bakers. In Holden v. Hardy (1898), the Court upheld an eight‐hour day for workers in mines and smelters. There the danger was obvious. But the claim that baking was an unhealthy trade was not so graphic. Reformers maintained that long hours of labor in bakeshops created a likelihood that workers would develop respiratory ailments such as “consumption.” Peckham rejected this idea outright. Taking judicial notice of a “common understanding” that baking was never considered an unhealthy trade, he concluded that the Bakeshop Act was not a legitimate exercise of the police power and was therefore unconstitutional.

Dissenting, Justice John Marshall Harlan argued that the majority started its reasoning from the wrong presumption. Harlan believed that, when the validity of a statute was questioned on constitutional grounds, a presumption ought to exist in favor of the legislature's determination. In his words, legislative enactments should be enforced “unless they are plainly and palpably beyond all question in violation of the fundamental law of the Constitution” (p. 68). Harlan did not disagree that liberty of contract applied to this situation. Nor did he disagree that concern for worker health and safety would be the only legitimate justification for the Bakeshop Act. Harlan was simply more willing than Peckham and the majority to recognize that there was evidence supporting that claim. The very fact that there was room for debate should have laid to rest all arguments that the law was unconstitutional. The weighing of claims regarding health conditions in the industry was a matter of legislative discretion.

Taking a position similar to Harlan's, Justice Oliver Wendell Holmes maintained that a state law should be upheld unless a rational person would necessarily admit that it would infringe upon fundamental principles of American laws and traditions (see Fundamental Rights). But Holmes's famous dissent also criticized the majority's decision to expand liberty of contract and its narrow view of the police power. Recognizing that these doctrines reflected the theories of social Darwinism and laissez‐faire economics, Holmes directly attacked the underlying premise of the decision. “A constitution is not intended to embody a particular economic theory,” he wrote. “It is made for people of fundamentally differing views” (p. 74). For Holmes, the opinion was dangerous because it represented the unwarranted infusion into the Constitution of a new fundamental right.

Peckham claimed his opinion did not substitute the judgment of the Court for that of the legislature on the matter of health in the baking industry. But many observers thought this was exactly what he had done. The Bakeshop Act had passed the state legislature unanimously. One hundred and nineteen elected representatives had voted in favor of the workday ceiling. Even seven of the twelve appellate judges who had previously ruled on Lochner's case voted to uphold the law. Critics maintained that the Court had no special knowledge of the industry and that it was in no better position than the state legislature to determine if the trade was unhealthy. And, although it was not irrefutable that the baking trade was unhealthy, ample statistical support for that contention was included in the record before the Supreme Court.

The usurpation of legislative authority and glaring subjectivity of Peckham's ruling brought the case into the limelight. In 1910, President Theodore Roosevelt pointed at Lochner when denouncing the judiciary for erecting insurmountable obstacles in the path of needed social reform (see Judicial Activism). Critics found it frustrating that the opinion of one appointed judge could reverse the reforms adopted by elected legislatures. For the next three decades, Lochner symbolized judicial misuse of power.

The specific outcome was not the most important thing about the Lochner case. It was a setback, but not a fatal blow to the shorter hours movement. By 1912 collective bargaining gave the union bakers of New York the ten‐hour day. In Muller v. Oregon (1908) the Court upheld a work‐day limit for women, and in Bunting v. Oregon (1917) it gave its blessing to a ten‐hour ceiling for adult males as well as women and children working in most industries. (See Gender.)

Of more lasting importance was the rationale adopted by the Lochner majority. It made the Court the overseer of all kinds of state regulatory legislation. Between 1905 and 1937, when the Court rejected this rationale in *West Coast Hotel v. Parrish (1937), countless subsequent attempts to reform social and economic conditions were challenged on the precedent of Lochner. Many of these state regulations were upheld. But state statutes such as minimum wage laws, child labor laws, regulations of the banking, insurance, and transportation industries were vetoed by the Court. Enough reform statutes were invalidated that the history of constitutional law during that time is commonly called “the Lochner era.”

The Court is said to have made the mistake in Lochner of becoming involved in formulating policy rather than interpreting the law. As Holmes pointed out, it also embraced one theory of the function of government at the expense of all others. Judicial construction alone had imbedded that theory into the fundamental law of the land. For these reasons the case still stands as a symbol of unrestrained judicial activism.

See also Due Process, Substantive.

Bibliography

Felix Frankfurter , Hours of Labor and Realism in Constitutional Law, Harvard Law Review 23 (1916): 353.
Paul Kens , Judicial Power and Reform Politics: The Anatomy of Lochner v. New York (1990).
Bernard H. Siegan , Rehabilitating Lochner, San Diego Law Review 22 (1985): 453.
Cass R. Sunstein , Lochner's Legacy, Columbia Law Review 87 (1987): 873.

Paul Kens

LOCHNER V. NEW YORK

In Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the U.S. Supreme Court struck down a state law restricting the hours employees could work in the baking industry, as a violation of the freedom of contract guaranteed by the due process clause of the fourteenth amendment. This seemingly minor decision spawned a new era in constitutional interpretation.

constitutional law is often divided into three eras, the center of which is Lochner. In the pre-Lochner era (1789–1870), courts interpreted the Due Process Clause of the fifth amendment to have primarily a procedural content that protected persons against arbitrary governmental deprivations of life, liberty, and property. This procedural right meant that individuals were entitled to sufficient notice and a fair hearing before the government could take harmful action against them. Courts reviewed only the manner in which a particular law infringed on a substantive right, without evaluating the importance of the right or the severity of the infringement.

During the Lochner era (1870–1937), courts interpreted the Due Process Clauses of the Fifth and Fourteenth Amendments to have a substantive content that protected from governmental intrusion certain economic and property interests, such as the right of employers and employees to determine the terms and conditions of their employment relationship. (Though Lochner was decided in 1905, prior cases going back to 1870 contributed to Lochner and are included in the Lochner era.)

The post-Lochner era (1937–present) is marked by decreased constitutional protection for economic and property rights and increased recognition of "fundamental" constitutional rights that protect minorities from discrimination, safeguard the interests of criminal defendants, and delineate a sphere of private conduct upon which the state may not encroach.

The Lochner era was an outgrowth of the U.S. industrial revolution. During the second half of the nineteenth century, the output of manufactured goods tripled, and the value of those goods soared from $3 billion to over $13 billion. The national labor force kept pace during this period, growing from 13 million to 19 million workers. Along with the growth of industry came a large disparity in the wealth and working conditions of U.S. citizens. Although some business proprietors were working fewer hours and making more money, many of their employees were working more hours in unhealthy conditions for scant wages. The bakers of New York were one group of such workers.

New York bakers at this time reportedly worked 12 hours a day, seven days a week, in a confined and uncomfortable environment. This lifestyle left little time for rest, causing some bakers to live in their kitchen and sleep at their workbench. A number of bakers died at an early age, and others contracted debilitating diseases. In 1895 the New York state legislature unanimously passed the Bakeshop Act, which attempted to address these problems by limiting the working hours of bakers to ten a day and 60 a week.

In 1902 Joseph Lochner, who owned a small bakery in Utica, was fined $50 for permitting an employee to work more than 60 hours in a week. During the trial Lochner offered no defense and was convicted. On appeal he challenged the constitutionality of the Bakeshop Act, claiming that it interfered with his right to pursue a lawful trade. The state defended the statute by arguing that it represented a legitimate exercise of its police powers, pursuant to which the legislature may enact laws to preserve and promote the health, safety, and morality of society.

Lochner's claim did not lack precedent. In 1897 the Supreme Court nullified a Louisiana statute that attempted to regulate contracts between state residents and out-of-state insurance companies (Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832 [1897]). Holding that that statute impaired the liberty of contract guaranteed by the Due Process Clause of the Fourteenth Amendment, the Court said that the Louisiana resident had a right "to live and work where he will," "to earn a livelihood by any lawful calling," and to "enter into all contracts which may be proper, necessary, and essential to … carrying out … the purposes above mentioned."

In addition to this precedent, the general mood of the country also favored Lochner's claim. Despite the universal support for the Bakeshop Act in the New York Legislature, a large number of U.S. citizens were still committed to the idea that in a capitalistic market, a government that governs least governs best (an idea that reflects laissez-faire economics).

In a 5–4 decision, the Supreme Court upheld Lochner's due process claim, striking down the Bakeshop Act as an interference with the right of employers and employees "to make contracts regarding labor upon such terms as they may think best, or upon which they may agree." Writing for the majority, Justice rufus w. peckham said that despite statistics indicating that the baking industry was not as healthy as some other trades, the common understanding of the Court suggested otherwise. "The trade of a baker," Peckham wrote, "is not … unhealthy … to such a degree which would authorize the legislature … to cripple the ability of the laborer to support himself and his family."

The Court acknowledged that state governments possess police powers to protect the health and safety of their residents. However, the Court said, a statute must have a direct relation to a material danger that would compromise the public health or the health of employees before it may restrict the hours of labor in any trade or profession. In this case, the Court concluded, the connection between the Bakeshop Act and the health and welfare of New York bakers was too remote.

Two dissenting opinions were written in Lochner, one by Justice oliver wendell holmes jr., and the other by Justice john m. harlan. Both dissents attacked the majority opinion as judicial activism and extolled the virtues of judicial self-restraint.

Harlan conceded that the Due Process Clause contains a substantive content that protects the liberty of contract. But this liberty, Harlan emphasized, may be circumscribed by state regulations that are calculated to promote the general welfare. Such regulations, Harlan argued, must be sustained by state and federal courts unless they clearly exceed legislative power, bear no substantial relation to societal welfare, or invade rights secured by fundamental law. Harlan concluded that doubts as to the validity of a statute must be resolved in favor of upholding its validity. Applying this standard, Harlan found the Bakeshop Act valid.

Holmes's dissent is considered a classic exposition of judicial self-restraint. As part of the U.S. system of democracy, Holmes stated, a majority of adults residing in any state have the "right to embody their opinions in law," even if those opinions are tyrannical or injudicious. It is the judiciary's role in this system to interpret and apply the laws passed by the coordinate branches of government.

Notwithstanding the Court's decision in Lochner, state legislatures were apparently free to maintain a paternalistic role when enacting similar laws that applied only to women. Three years after Lochner, the Court upheld the constitutionality of an Oregon statute that restricted women from working more than ten hours per day in a mechanical establishment, factory, or laundry. Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908). Although the statute was very similar to the New York statute, except that it applied to women, the Court clearly based its decision upon its perception that women were inferior to men. According to the majority opinion written by Justice david brewer, "That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious … history discloses the fact that woman has always been dependent upon man." Because the Court found that the statute was designed for what it considered the necessary protection of women in the workplace, the Court upheld the statute as constitutional under the Fourteenth Amendment. In doing so, the Court specifically left the ruling in Lochner intact.

Lochner remained the controlling precedent for nearly 30 years; it was overruled finally in west coast hotel co. v. parrish, 300 U.S. 378, 57 S. Ct. 578, 81 L. Ed. 703 (1937). Parrish examined the validity of a Washington state statute that established a minimum wage for women. A hotel owner challenged the constitutionality of the statute on the grounds that it violated his liberty of contract guaranteed by the Fourteenth Amendment.

The hotel owner relied on Lochner and a series of subsequent cases that nullified various state regulations as inconsistent with the substantive rights protected by the Due Process Clause. One of these cases, Adkins v. Children's Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785 (1923), invalidated a similar minimum wage law in the District of Columbia. But the Supreme Court was no longer persuaded by the rationale underlying Lochner and ruled that the Washington statute was a reasonable exercise of the state's police powers.

In the 32 years between Lochner and Parrish, the United States was confronted by a stock market crash in 1929, which precipitated the Great Depression of the 1930s. President franklin d. roosevelt attempted to combat some of the more serious problems of the depression by initiating a host of federal laws known collectively as the new deal. These events made many U.S. citizens more sympathetic to governmental largesse.

The Supreme Court was also affected by these events. Where Lochner had underscored free-market laissez-faire principles, Parrish highlighted the unequal bargaining power of employers and employees, as well as the oppression and exploitation of female workers. Freedom of contract, the Supreme Court said in Parrish, is not an absolute and uncontrollable liberty.

Any lingering doubts as to the validity of Lochner were eliminated by the Supreme Court in United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938), which held that courts must sustain state and federal laws that regulate economic interests, unless there is no rational basis to support them. By contrast the Court said that legislation that "appears on its face to be within a specific prohibition of the Constitution … restricts … political processes … [or is] prejudic[ial] against discrete and insular minorities" will be subject to stricter scrutiny.

The Carolene Products case ushered in the post-Lochner era. During this era the Supreme Court has offered little constitutional protection for contract and other property rights. At the same time, the Court has offered increasing protection against legislation that touches upon a fundamental constitutional right or denies a governmental benefit to a suspect class of persons, what the Court in Carolene Products called "discrete and insular minorities."

Fundamental rights include most of the rights enumerated in the first ten amendments to the Constitution, as well as the right to privacy, the right to travel, the right to vote, and the right to education. Suspect classes include groups of persons who are discriminated against on the basis of race, gender, national origin, or other "immutable" genetic characteristics (frontiero v. richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 [1973]).

further readings

Agomo, Chioma Kanu. 1995. "Work Environment and Women: U.S. Practice." Annual Survey of International and Corporate Law 41.

Bieneman, Charles A. 1991. Review of Judicial Power and Reform Politics: The Anatomy of Lochner v. New York, by Paul Kens. Michigan Law Review 89.

Bork, Robert H. 1990. The Tempting of America. New York: Free Press.

Ely, James W., Jr., 1991. Review of Judicial Power and Reform Politics: The Anatomy of Lochner v. New York, by Paul Kens. Vanderbilt Law Review 44.

Kordana, Kevin A. 1995. "Law Firms and Associate Careers: Tournament Theory Versus the Production Imperative Model." Yale Law Journal 104.

Shell, G. Richard. 1993. "Contracts in the Modern Supreme Court." California Law Review 81.

cross-references

Due Process of Law; Jurisprudence; Labor Law; Rational Basis Test; Substantive Law.

LOCHNER V. NEW YORK (1905)

Background

A changing economy, moving toward larger industries and complicated corporate structures, meant that workers lost significant control over their work. Though the court in the 1890s had allowed corporations to expand, the courts had not been friendly to workers who tried to form unions. Working people were expected to negotiate individually for their wages and working hours. Courts used injunctions to prevent workers from striking, and the courts were equally skeptical of state attempts to improve working conditions. In 1885 the Supreme Court had struck down a New York law that regulated working conditions for cigar makers. Working in their tiny tenement apartments, cigar makers rolled tobacco into cigars. Often the entire family, women and young children, spent long hours rolling cigars for which they were paid by the piece. This kind of work, often the only kind available to an unskilled immigrant, paid a tiny amount and posed significant health risks to the worker and his family. The law, sponsored by assemblyman Theodore Roosevelt, prohibited this kind of work. But the Supreme Court in 1885 ruled that New York could not regulate these working conditions, as to do so violated the cigar maker's and his employees' liberty to make a contract. In 1898 the court upheld a Utah law that limited the working hours of miners, because the court recognized the hazards of mining: more than two thousand miners would die in mine accidents between 1900 and 1909. Though labor was much weaker than business, workers and middle-class reformers pressured legislatures to restrict working hours in hazardous occupations. In 1897 New York's legislature, recognizing that breathing flour dust contributed to lung disease, limited bakers in "biscuit, bread, or cake bakery, or confectionary" factories to sixty hours of work each week.

Lochner and the Court

Joseph Lochner owned a bakery in Utica, New York. Lochner's bakers worked more than sixty hours a week. He was arrested and fined fifty dollars. He appealed his conviction, but the state appeals court, in an opinion written by Alton B. Parker, affirmed his guilt. The state could regulate the working hours of bakers in order to protect the health and safety of citizens.

Lochner Challenges the Law

One of Lochner's employees studied law and urged him to appeal the case to the U.S. Supreme Court. The New York law, he said, violated the U.S. Constitution. The Fourteenth Amendment says no state can deprive any person of equal protection, and no state can deprive any person of life, liberty, or property without due process. Because the New York law did not apply to bakers in hotels or restaurants, it denied all bakers equal protection. Because the law restricted the number of hours bakers could work, it limited their liberty to make contracts with their employers. The U.S. Supreme Court had said that the liberty to make contracts was a fundamental liberty covered by the Fourteenth Amendment.

The Supreme Court Rules

The Supreme Court over-turned Lochner's conviction. The state law violated Lochner's freedom to make contracts with his employees. Justice Rufus Peckham ruled that the state had no reasonable ground to interfere with a baker's working hours and that bakers could protect themselves without help from the state. A state could only restrict working hours or regulate working conditions when it could prove that its regulation was fair, reasonable, and appropriate. Peckham did not understand baking to be a particularly hazardous occupation. Doctors would likely not recommend working in a bakery as a way to improve one's health, but that did not mean the state could restrict the hours bakers could work. Nor did the state show that by restricting working hours of bakers would the bread they produced be healthier. There was, then, no compelling reason for the state to limit bakers to sixty hours of work, and to do so violated their liberty to work longer hours if they desired. There had to be more than a small amount of possible ill health before the state could interfere with economic liberty.

Justice Holmes Dissents

Oliver Wendell Holmes disagreed with the court's decision, and he wrote one of the most famous dissents in the court's history. "This case is decided upon an economic theory which a large part of the country does not entertain," Holmes wrote. Justice Peckham and the majority had struck down the New York law because it violated their belief in laissez-faire economics. "A constitution," Holmes wrote, "is not intended to embody a particular economic theory, whether of paternalism and the organic relationship of the citizen to the State or of laissez-faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment …whether … the[y] conflict with the Constitution of the United States." The court's role was not to decide how laws squared with the judges' ideologies or economic or political theories. If a majority of New Yorkers thought bakers should only work sixty hours each week, it was not up to the court to tell them otherwise. The court should defer to the legislature and not impose its own political, economic, or ideological views. Referring to the nineteenth century's leading proponent of a free marketplace and unlimited competition, Holmes wrote, "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." It was not up to judges to decide if a law was appropriate, nor was it up to judges to interpret the law based on their own limited understanding of the workplace. Judges should not interpose their own ideologies between the people and their lawmakers.

Reactions to Lochner.

Holmes was an admirer of Spencer, and his dissent in the Northern Securities case suggests that he was a supporter of a free marketplace. The issue was not whether he agreed with a particular law, but whether the legislature had the power to enact a certain law. The Lochner case brought up two fundamental issues in American constitutional history: the power of the state to limit liberty and the role of the courts in interpreting legislation. Lochner, even as it rejected the New York law, did suggest that the state could pass reasonable laws that limited liberty. The majority had simply not accepted New York's regulation of bakers as reasonable. Holmes had accepted the evidence as reasonable and thought that the other judges had interjected their own views into the cases. There was no fundamental legal principle involved, but merely a difference of opinion. Three years later New York lawyer Learned Hand asked in an article whether unelected judges should be able to veto legislation based on their own social or political views rather than on fundamental principles of law. "Whether it be wise or not," Hand wrote, for the court to "veto … legislation with whose economic or political expediency it totally disagrees, is a political question," and he warned that if the court continued to involve itself in political questions, the judges would find their power limited. Their unlimited power to restrain political majorities could not survive in a democratic state, "while the court retains the irresponsibility of a life tenure." The people, frustrated by judges who made political decisions, would subject the judges themselves to the political process. If the court continued to thwart laws that the majority of the people supported, the people would find a way to limit the court's power.

Sources:

Liva Baker, The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes, Jr. (New York: HarperCollins, 1991);

Gerald Gunther, Learned Hand: The Man and the Judge (New York: Knopf, 1994);

Paul Kens, Judicial Power and Reform Politics: The Anatomy of Lochner vs. New York (Lawrence: University Press of Kansas, 1990).

Lochner v. New York (1905).In 1895, New York State passed a law limiting the hours of work for employees in bakeries to ten hours per day and sixty hours per week. Spearheaded by the bakers’ union and tenement‐house reformers, this statute reflected the labor movement's long struggle to achieve shorter work hours. In 1902, the Utica bakeshop owner Joseph Lochner was fined for violating the new law. Appealing to the U.S. Supreme Court, Lochner claimed that the statute violated the Fourteenth Amendment guarantee that no person shall be denied life, liberty, or property without due process of law. Voting 5–4, the Court in 1905 voided Lochner's conviction and ruled the bakeshop law unconstitutional. Justice Rufus Peckham's majority opinion reasoned that among the liberties protected by the Fourteenth Amendment was “liberty of contract,” including the right of the employee and employer voluntarily to contract about the hours of work. A state might interfere with that liberty, Peckham admitted, but only if its regulation fell under the legitimate police powers of the states. Peckham defined the police power narrowly, saying that the bakeshop law was not a reasonable use of the state's power to protect the bakers’ health.

Justice Oliver Wendell Holmes Jr. dissented vigorously. Attacking the majority's underlying premise, he argued that the majority had based its decision on laissez‐faire economic theory rather than on the Constitution, substituting its own judgment for that of the state legislature.

Lochner became the symbol of laissez‐faire constitutionalism and judicial activism. For more than thirty years, critics complained that the Court had erected an insurmountable barrier to economic reform. The “Lochner Era” came to an end in 1937, when West Coast Hotel Company v. Parrish rejected the liberty‐of‐contract doctrine.
See also Conservatism; Economic Regulation; Gilded Age; Industrialization; Progressive Era; New Deal Era, The.

Bibliography

Paul Kens , Judicial Power and Reform Politics: The Anatomy of Lochner v. New York, 1990.
Howard Gillman , The Constitution Besieged: The Rise and Demise of Lochner Era Police Power Jurisprudence, 1993.

Paul Kens

LOCHNER V. NEW YORK

LOCHNER V. NEW YORK, 198 U.S. 45 (1905). Lochner, proprietor of a Utica, New York, bakery, had been arrested, tried, and convicted for violation of a state law setting maximum work hours for workers in the baking industry at ten hours per day and sixty hours per week. Seven years earlier, in Holden v. Hardy, the Supreme Court had upheld a Utah law regulating hours for workers in dangerous industries. But in Lochner, the Court argued that such protections were unnecessary in industries that required care in cleanliness and sanitation. The Court, rejecting the New York law's stated intent to safe-guard public health, held the act void as a violation of freedom of contract.

BIBLIOGRAPHY

Gillman, Howard. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. Durham, N.C.: Duke University Press, 1993.

Kens, Paul. Judicial Power and Reform Politics: The Anatomy of Lochner v. New York. Lawrence: University Press of Kansas, 1990.

———. Lochner v. New York: Economic Regulation on Trial. Lawrence: University Press of Kansas, 1998.

W. BrookeGraves

Andrew C.Rieser

See alsoLabor Legislation and Administration ; Wages and Hours of Labor, Regulation of ; West Coast Hotel Company v. Parrish ; andvol. 9:Women in Industry (Brandeis Brief) .