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
