The Lochner case may be one of the most remarkable cases in the whole of Constitutional law — remarkable for its influence in the development of “substantive due process.”

It’s also remarkable for its role in the Court’s de-coupling of personal liberty and economic liberty, for its role in the development of judicial scrutiny, and as a focal point of populist progressive spite that culminated in the Constitutional Revolution of 1937 and the infamous “switch in time.”

The dissenting opinion offered by Justice Holmes – dissent of only 670 words – barely two paragraphs, fits into the remarkable category as well. A dissent is wholly devoid of legal substance, yet is widely considered by both liberal and conservative legal scholars to be the most important dissent in the entire corpus of Constitutional law. It’s also remarkable for its inclusion in the anti-canonical body of Constitutional law. That means Lochner is held in equal contempt with Dred Scott v Sanford (1857), Plessy v Ferguson (1896) and Korematsu v United States (1944).

That is why in 2005, when then-Senator Barack Obama spoke out against conservative California Supreme Court Judge Janice Rogers Brown’s nomination to the prestigious U.S. Court of Appeals for the District of Columbia Circuit, the junior senator from Illinois selected one of the most damning epithets in the liberal legal arsenal: Lochnerian.

“One of the things that is most troubling is Justice Brown’s approval of the Lochner era of the Supreme Court,” Obama intoned from the Senate floor. “Keep in mind that same judicial philosophy was the underpinning of Dred Scott. That was the notorious 1857 decision that declared African Americans “had no rights which the white man was bound to respect.”

This leads me to what I find to be the most remarkable thing about this Lochner v. New York – how entirely unremarkable it actually is.

Sure, the Court’s opinion in Lochner may be controversial, but it was not remotely like Dred Scott. In fact, a prima facie reading of the Lochner case brief expecting something as salacious as Dred Scott could easily leave you assuming you have the wrong brief.

It was a straightforward decision based on longstanding American principles, including the free labor philosophy of the anti-slavery movement that limits the government’s power to regulate the economy.

Initially, when the decision was handed down in 1905, it was generally very well received. A few years later it became a common rallying cry among those in the progressive movement who would eventually adopt Holmes’ fiery dissent as the canonical view of cases involving economic regulation following FDR’s New Deal. The Roosevelt program fundamentally reshaped the entire country, rejecting the founding values of American Republicanism, rooted in Limited Government, natural rights and individual liberty and morphing it into a fundamentally democratic (with a small d) view that the will of the majority should stand as the foremost value.

In recent years, Lochner has been rediscovered and rehabilitated by the shift in originalist legal interpretation from original Intent to original meaning. And thanks to a small, but growing number of more libertarian-minded legal scholars like Randy Barnett and David Bernstein who have begun to push back against the largely erroneous scholarly consensus that has been attached to this case.

But most liberal legal scholars today will tell you Obama got it right; Lochner represents the disgraceful triumph of evil bosses over cruelly exploited workers, reflecting a “willingness to consistently side with the powerful over the powerless.”

However, an honest appraisal of Lochner demonstrates a principled recognition of the philosophy of free labor, freedom of contract, and natural rights rooted in the Constitution’s Article IV Privileges and Immunities Clause, the Ninth Amendment, and long-standing case law, such as the 1825 case of Corfield v Coryell, along with the original public meaning interpretation of the 14th amendment’s due process clause which was cited as the provision upon which Lochner was ultimately decided.

The Case 

In the late 19th century, most bakeries in New York City operated in tenement house basements. The rent in these homes was low, and the cellar floors were sturdy enough to support the weight of an oven. These cramped spaces, however, posed serious sanitation issues. They were never designed for commercial uses.

In 1895, New York enacted the Bakeshop Act to address these problems. The law established a detailed code of sanitation standards for bakeries. One provision was added at the behest of the bakeshop union: employees could not work more than 10 hours per day and 60 hours per week. (The owners of the bakeshops were not subject to this limit.)

At the time, small bakeshops were largely owned and operated by Jewish, German, and other immigrants, who served their own communities. The owners of these businesses fiercely resisted unionization and the maximum hour laws. Their operations required a few employees to operate the ovens over a 24-hour period. The workers could then sleep on the premises while the bread was rising or baking.

In contrast, large commercial bakeries could employ shift workers to comply with the maximum-hours law. As a result, the Bakeshop Act had the effect of, and was possibly intended to privilege corporate-owned, unionized bakeries over their small immigrant competitors.

Joseph Lochner, a German immigrant, operated a bakery in Utica, New York. It was located in a nice shop, not in a crowded tenement house in Manhattan. Lochner employed his worker, Arman Schmitter, for more than sixty hours in a week. The lifelong friends likely reached that arrangement so Lochner would be charged with violating the law, thus setting up a test case. Ultimately, Lochner was convicted of violating the Bakeshop Act. He then refused to pay the fifty-dollar fine and was imprisoned.

On appeal, he contended that the Bakeshop Act violated the Fourteenth Amendment’s Due Process Clause.

All nine Justices agreed that the Bakeshop Act’s health and safety regulations were valid exercises of the state’s police power both the majority and the dissent upheld the regulations concerning ventilation, ceiling heights, the location of ovens, and the cleanliness of floors in bakeries.

The Justices, however, split 5-4 on whether the state could enact the maximum hour’s law pursuant to its police power. Justice Peckham wrote the majority opinion, striking down the maximum-hour law “as an arbitrary interference with the ‘liberty of contract.’”

He rejected the claim that the maximum-hours provision was a genuine health and safety measure. Justice Peckham concluded that, “There is no reasonable ground for interfering with the liberty of persons – or the right of free contract –  by determining the hours of labor, in the occupation of a baker.”

This approach creates a doctrine termed “The rebuttable Presumption of Liberty.”

Indeed, Justice Peckham twice suggested that the New York law was enacted for “other motives.” In other words, the Bakeshop Act was class legislation aimed at helping unions, and harming non-unionized bakeshops – and a textbook example of rent-seeking behavior.

Justice Harlan wrote the principal dissent, joined by Justices White and Justice Day. Justice Harlan agreed with the majority that “there is a liberty of contract which cannot be violated.” But he contended that “when the validity of a statute is questioned, the burden of proof, so to speak, is upon those who assert it to be unconstitutional.”  This approach could be termed “The Presumption of Constitutionality.”

I have covered this doctrinal shift and its relevant case law in an article and a video on “The Constitutional Revolution of 1937.”

The Great Dissent 

Lochner’s critics proved ugly, if in a different way. Foremost among them was Supreme Court Justice Oliver Wendell Holmes Jr., who became a hero to the reform-minded after filing a sharp and much-quoted second dissent in the case.

Holmes was a Massachusetts aristocrat who viewed his service in the Union Army as the most important event of his life. He was so devoted to judicial restraint that he rarely found a law he was willing to strike down. He viewed democracy in violent military terms – as an opportunity for the strong to impose their will on the weak, and he thought it the job of judges to help them do so.

“If my fellow citizens want to go to hell, I will help them,” he wrote. “It’s my job.”

Holmes had contempt for progressive economic legislation, which he viewed as sentimental and ineffective. Though his dissent in the case is held in high regard among progressives, for him it was nothing more than an inclination towards judicial restraint. Justice Holmes wrote in his now-famous dissent.

“[He] would have upheld Bakeshop Act if any reasonable person could have supported the law.”

There are several choice quotes that people tend to focus their attention on in Holmes’ brief and pithy dissent.

“This case is decided upon an economic theory which a large part of the country does not entertain,” –namely “laissez-faire” capitalism.

“It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”

Some scholars have viewed this passage as a rejection, of Social Darwinism. What Holmes is rejecting Herbert Spencer’s “law of equal freedom” which claimed, “Each has freedom to do all that he wills, provided he infringes not the equal freedom of any other.”

According to Holmes, the proper scope of government power had nothing to do with the protection of individual rights. Holmes and his fellow Lochner opponents, including the progressive politicians like Teddy Roosevelt, Woodrow Wilson and later FDR who would all lionize Holmes for his stand-in Lochner, had little use for individual rights and thought the police power virtually unlimited.  Holmes’ true target was not Herbert Spencer at all. It was James Madison, Montesquieu & Locke

In fact, Oliver Wendell Holmes was an outspoken and enthusiastic proponent of Social Darwinism, something that should be apparent in his general contention that the proper exercise of democracy was a system in which the strong imposed their views on the weak. Even without that personal understanding the same thing could have been parsed out, had those scholars bothered to continue reading the next paragraph of Holmes’ dissent, which doesn’t seem like an unreasonable expectation in a dissent that is only two paragraphs long.

He ended his dissent by reiterating his dark view of law as a Darwinian struggle for power in which majorities should triumph over minorities.?This was the reasoning behind his assertion that the 14th Amendment did not protect the individual liberty of contract, as the Court held in the majority opinion. It too existed in his larger vision of law as a kind of Darwinian struggle, making the 14th Amendment an extension of this and ultimately as part and parcel of Holmes’ Darwinian Constitution and of the law itself.

Lochner’s Legacy 

Lochner v. New York was not particularly controversial when it was decided in 1905. Except for critical coverage in union newspapers, the case was generally well-received in the press. It only became notorious in 1912 when Theodore Roosevelt attacked Lochner during his campaign for president.

The former president, who served as a Republican, was now the presidential candidate of the Progressive Party. Roosevelt, who appointed Holmes to the Supreme Court, now praised the dissenters’ approach in campaign speeches. This praise of Holmes’ Lochner dissent was quickly picked up on by the progressive candidate for the Democratic Party, Woodrow Wilson. Holmes’ dissent closely mirrored Wilson’s vision of the proper role and scope of government that closely mirrored many of Wilson’s arguments for a superior system of democratic government that he put forward in his 1908 treatise “Constitutional Government,” which was meant to persuade people to Wilson and Holmes’ vision of a Darwinian Constitution. Additionally, Wilson argued a complete restructuring of government to evolve into something like a parliamentary democracy.

Ultimately, Roosevelt’s third-party campaign took away votes from the Republican candidate, William Howard Taft. As a result, Woodrow Wilson, the progressive candidate on the Democratic ticket, prevailed.

In 1916, President Wilson nominated Louis Brandeis to the Supreme Court. The progressive jurist shared Holmes’s constitutional approach. Before and during the New Deal, Justices appointed by progressive Presidents—Democratic and Republican alike — would repudiate Lochner.

It seems Obama’s caricature is wildly at odds with the historical evidence.

One of the best cases for reconsidering Lochner comes from George Mason University law professor David E. Bernstein in his book, “Rehabilitating Lochner.” Drawing on both previous legal scholarship and his own extensive historical research, Bernstein offers a definitive account of this misunderstood and unjustly maligned case. Not only did Lochner represent the victory of small-scale producers over large, politically connected special interests, Bernstein points out, but the ruling led directly to several of the Supreme Court’s most important early decisions in favor of civil rights and civil liberties under the 14th Amendment, including Buchanan v. Warley, the landmark 1917 case in which the National Association for the Advancement of Colored People scored its first victory before the Supreme Court.

However, in 1938 in the case of United States v Carolene Products Co., the court would abandon the majority opinion in Lochner and instead adopt a jurisprudence that resembled Justice Harlan’s dissent – moving from a presumption of liberty to a presumption of constitutionality. And in 1955 in the case of Williamson v Lee Optical, the Court would shift even further from Lochner’s presumption of liberty to a view that closely mirrored Holmes’ Judicial restraint in which a state’s police power to regulate the economy qualified the presumption of Constitutionality and made it nearly impossible to rebut.

When the Justices use Lochner as shorthand for what they consider the activist sins of their opponents, they are substituting empty rhetoric for meaningful constitutional argument.

Bob Fiedler
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