Lochner v. New York

Economic Regulation on Trial

Paul Kens

• Publisher: University Press of Kansas
• Year: 1998
• ISBN:
  9780700622436
• Topic: Diritto
• Subtopic: Storia giuridica

Lochner v. New York (1905), which pitted a conservative activist judiciary against a reform-minded legislature, remains one of the most important and most frequently cited cases in Supreme Court history. In this concise and readable guide, Paul Kens shows us why the case remains such an important marker in the ideological battles between the free market and the regulatory state.The Supreme Court's decision declared unconstitutional a New York State law limiting bakery workers to no more than ten hours per day or sixty hours per week. By evoking its "police power, " the state hoped to eliminate the employers' abuse of these workers. But the 5-4 majority opinion, authored by Justice Rufus Peckham and renounced by Justice Oliver Wendell Holmes, cited the state's violation of due process and the "right of contract between employers and employees, " which the majority believed was protected by the Fourteenth Amendment.Critics jumped on the decision as an example of conservative judicial activism promoting laissez-faire capitalism at the expense of progressive reform. As series editors Peter Hoffer and N.E.H. Hull note in their preface, "the case also raised a host of significant questions regarding the impetus of state legislatures to enter the workplace and regulate hours, wages, and working conditions; of the role of courts as monitors of the constitutionality of state regulation of the economy; and of the place of economic and moral theories in judicial thinking."Kens, however, reminds us that these hotly contested ideas and principles emerged from a very real human drama involving workers, owners, legislators, lawyers, and judges. Within the crucible of an industrializing America, their story reflected the fierce competition between two powerful ideologies.

chapter 1

Introduction

On April 19, 1905, the headlines of many of America’s newspapers proudly reported that President Theodore Roosevelt had bagged a bear on his Colorado hunting trip. To many readers, the president must have depicted an ideal of the American way of life. The Rough Rider, hero of San Juan Hill, was a celebrity who radiated strength, self-sufficiency, and individuality.

If the readers had thought back about two years, they might have remembered another presidential hunting trip. It was during this earlier expedition to the woods of Mississippi that a famous symbol and more famous toy was born when the president refused to shoot a helpless bear cub. The toy and symbol was, of course, the teddy bear. It was inspired by a drawing of the event by political cartoonist Clifford Berryman, who thereafter used a little bear to depict Roosevelt himself. That such a simple event would become so newsworthy is somewhat surprising. Perhaps the president’s act touched upon another American ideal. Mixed with the admiration of individualism and strength was a concern for the underprivileged, needy, and helpless, a distaste for unrestricted power, and a belief that everyone should have a fair chance.

On that same morning the more astute reader might have noticed reports and commentary on the United States Supreme Court decision in Lochner v. New York, which had been announced two days earlier. At first sight, this would not have seemed a very important case. The person most directly affected, Joseph Lochner, was far from being engaged in a struggle of life or death. The owner of a small bakery in Utica, New York, he had been fined fifty dollars for violating a state law known as the Bakeshop Act. This statute regulated the baking industry in two separate ways: by setting minimum standards for sanitation and by providing that bakeshop employees could not be worked more than ten hours a day or sixty hours a week. Lochner had been convicted of disobeying the second provision.

In contrast to the situation in the Dred Scott decision, which involved the issue of slavery, or Brown v. Board of Education, which dealt with school segregation, the outcome of the Lochner case would not itself be of paramount national importance. Nor would it be followed by civil war or rioting in the streets. But like these two, Lochner v. New York was to become one of the most controversial decisions in the history of the U.S. Supreme Court.

This case had touched a raw nerve connected to some very deepseated ideas about the American political system, and conflicting ideals of the American way of life irritated that nerve further. It involved a question about the extent to which people could look to government to solve what they saw as the problems of their day. Were they to be left free to rise or fall on the basis of their own strength, or could government intervene to impose popular ideas of fairness? In addition, with its decision the Supreme Court intensified an ongoing argument about the extent to which the judiciary should be involved in answering such questions, and Lochner v. New York became a highly charged catchword in that debate. For more than eighty years it has served legal scholars as a poignant example of judicial activism.

What follows is the story of this case. But it is one that goes back further than the trial of Joseph Lochner and his eventual journey to the nation’s highest court. To understand the significance of the case, it is also important to trace the march of political, social, and economic thought of the time and the circumstances that led to enactment of the New York bakeshop law. That is the objective of the first half of this book. As the tale runs from the 1870s to the third decade of the twentieth century, it touches upon urban baking industry conditions, tuberculosis and public health, sweatshops, tenement life, a variety of reform movements, the early life of organized labor, and New York politics, as well as developments in constitutional law.

Justice Rufus Peckham, who wrote the majority opinion in Lochner, justified the Court’s decision to overrule the Bakeshop Act in part on the belief that the number of hours bakers worked bore no relationship to public health and safety. Responding, critics asked how the Court sitting in Washington could know anything about the working conditions in the bakeshops of New York City. Chapters 2 and 3 represent an effort to avoid the same mistake. The former provides a short sketch of the nineteenth-century baking industry and the environment in which those employed in the trade worked. Its goal is not only to determine whether bakers might have been justified in claiming that theirs was an unhealthy job, but also to determine the extent to which reform of the baking industry was motivated by concerns for health. This inquiry is continued in Chapter 3, which also deals with the history of American labor’s efforts to secure a shorter workday. It covers the theoretical basis of the shorter-hours movement as well as its political successes and failures and seeks to determine the extent to which health and safety served as a rationale for limiting the workday.

In his majority opinion, Peckham argued that because it is not concerned with health and safety, the Bakeshop Act was merely a labor law pure and simple. His categorization raises a number of interesting questions. The political environment in late-nineteenth-century New York surely did not appear to be conducive to the enactment of such labor legislation. What accounts for the success in passing such a law? To what extent was it labor’s victory, and who else was involved? Chapters 4 and 5 seek to answer these questions by providing an overview of the political scene and then following the progress of bakeshop reform from its inception to its successful enactment. It is important to appreciate that the Lochner case itself was only part of this longer-running conflict. Thus any attempt to explain it without first describing the political dispute from which it emerged would have all the drawbacks of a play that opens in the second act. Yet despite the importance of this case as a study in the role of the Supreme Court in the political process, little attention has previously been paid to the political and social background of New York’s shorter-hours law for bakers.

The study of Lochner also involves the relationship between constitutional law and moral and economic philosophy. Oliver Wendell Holmes was one of many who criticized the decision as based on an economic theory that a majority of the country did not share. Holmes was speaking of the nineteenth-century concepts of laissez faire and social Darwinism. With his comments in mind, Chapter 6 explores the kinds of ideas about government, economics, and society that were in circulation from the 1890s through the early part of the twentieth century.

In addition to being a symbol of judicial activism, Lochner has provided law school texts with a standard illustration of the legal doctrines of liberty of contract and substantive due process. The latter is especially important because this interpretation of the due process clause of the Fourteenth Amendment provides the means by which courts have become involved in overseeing a wide variety of state-law-making activities. If for no other reason, the story of Lochner is important as a vehicle for explaining this significant aspect of constitutional law. Chapters 7 and 8 explain the evolution of these legal doctrines and their relationship to the moral and economic thinking of the day as they follow the progress of each side’s case from the trial through the appeals process. Chapter 9 begins with the Supreme Court’s opinion. In many Supreme Court cases, however, the decision seems to be best explained in dissenting opinions. Lochner is no exception. Justices Harlan and Holmes each authored hard-hitting, well-known dissents to the majority opinion. In these dissents, which are also the subject of the ninth chapter, the full implications of the Lochner case come to light, and the reasons for its lasting importance are discovered.

The Lochner story is an account of the politics and personalities during an interesting period of American history. Spanning the years 1890 to 1905, it has one foot in the Gilded Age and another in the Progressive Era. From this perspective, Chapter 10 describes the initial reaction to the case and attempts to determine why there was a reaction at all. To complete the story, however, it is necessary to go a little further. Chapter 11 summarizes the impact of the case from the time it was decided until it was overruled in 1937—the Lochner Era.

These last chapters, along with Chapter 12, also examine the Lochner legacy. As the symbol of a conservative judiciary’s resistance to reform, the Lochner decision received a great amount of attention from 1910 through the early years of the New Deal. Recently it has begun to work its way back into scholarly writings. For many modern students of the Supreme Court, it serves as a prime example of misguided judicial conduct—that of basing opinions on political or economic policy rather than on moral principle. Similarly it exemplifies an old and erroneous conception of the Constitution that emphasized the economic rather than the humanitarian in defining individual rights. In contrast to the traditional view of Lochner, some modern historians maintain that Lochner is not an instance of the Court attaching laissez-faire-social Darwinian theory to the Constitution. They maintain that the case reflects the Court’s attachment to pre-Civil War ideals of Jacksonian democracy and free labor theory. The thrust of other recent scholarship is that the Lochner case was an aberration. These historians have pointed out that more regulatory statutes and labor laws were upheld than were overruled during the first thirty years of this century. Viewed in this light, they argue, the Court was not the laissez faire ogre it is conventionally made out to be. Yet another group of modern scholars challenges the conventional view by arguing that Lochner was correctly decided. Just as a theory similar to laissez faire has regained popularity in economic and political circles, so it has been growing in legal theory. For those writers who follow this trend, the Court’s interpretation of the Constitution in the Lochner case represents something close to an ideal notion of liberty.

Following the Bakeshop Act from the birth of the shorter-hours philosophy, through the New York legislature, and on to the Supreme Court decision suggests, however, that Lochner did not represent an instance of the Court’s enforcing economic policy rather than moral principle. Nor did it represent a clash between labor and the captains of industry. Rather, the conflict was one of competing ideals. The Lochner decision was, and remains, important because it signaled the Court’s adoption of one of these competing ideals, laissez faire-social Darwinism, at a time when attachment to that philosophy was waning. There was an aspect of economic policy making in this choice, to be sure. In making it, the Court set a standard for testing the validity of reform legislation that lasted more than thirty years. But more important, as a matter of fundamental law, the Court had rejected the beliefs and goals of a large and influential group of mainstream Americans. These people were reformers, not radicals. Many were wealthy, many were professionals. Some had previously been attracted to the idea of laissez faire. An appreciation of the interests of these mainstream reformers, their participation in passing the Bakeshop Act, and their reaction to the Lochner decision goes far toward explaining why the case was not an aberration, why it eventually became so well known and controversial, and why it remains so today.

chapter 2

Not Like Grandma Used to Bake

In the late nineteenth century, the baking industry was caught in the wave of industrialization and urbanization that swept through the United States. Industrialization drew former and potential homemakers away from the home and into the workforce, thereby increasing the demand for bakery products. Urbanization, at least to the extent that it was manifested in tenement-house living, had a similar effect. Ovens were not provided in all tenements. Even when one was supplied, however, life in these cramped dwellings, which were often shared by more than one family, could make home baking impossible. As a result, the number of wage earners in the baking industry went from fewer then seven thousand in 1850 to more than sixty thousand in 1900—a rate of increase almost twice that of manufacturing in general. Baking was a growth industry. Yet at the turn of the century almost three-quarters of the bread consumed in the United States was still baked at home.

At midcentury the American baking industry was just beginning to emerge. The mobile and rural society that existed before the Civil War had provided little opportunity for the industry to develop, and there were few large population centers in which it could thrive. There also was simply a strong preference for home-baked bread. Until as late as World War I home baking was a major factor affecting competition in the industry.

As the industry grew it actually developed into two separate branches. One, which became known as the cracker industry, supplied hardbread, crackers, and hardtack—nonperishable staples for use on ocean voyages and long overland trips. These were products well suited for mass production and wholesale distribution. There was nothing about this branch of the industry that would discourage combination and consolidation, and by 1880 regional “cracker trusts” began to develop. Competition among these large companies continued through the next decade. As late as 1893 the bakers’ union reported that two of them, the American Biscuit Company and the United States Baking Company, were engaged in a fierce price war. But this war came to an end in 1898, when these companies, along with the New York Biscuit Company and the National Baking Company, merged to form the National Biscuit Company. With this merger one firm controlled 70 percent of the cracker industry. It was the type of monopoly that became the target of reformers’ barbs and the symbol of the ills of the era.

Joseph Lochner and the other characters who played out the events culminating in his case were not part of the cracker industry. They were bakers of bread, and the conditions in this branch of the industry could not have been more different. The necessity of offering a fresh product, and the consequent need to deliver it quickly, discouraged consolidation into large firms. Although some local bakeries began expanding at the turn of the century, major trusts did not begin to form in the bread industry until after 1910. The first holding company did not exist until 1922. This company, created by William B. Ward, later merged with several others and became the target of a major antitrust suit in 1926. But between 1895 and 1905, the period during which the battles over the Bakeshop Act were fought, the supply of retail bread came from innumerable small businesses.

They were very small indeed. In 1899, 78 percent employed four or fewer people. The owners were called master bakers, or “boss bakers.” Typically they were former journeyman workers who had broken away from their employers to form their own small bakeries. By taking that step, however, they were not transformed into captains of industry, nor did they even reach the status of a successful shopkeeper. At least in major urban areas, their lives more closely resembled those of jobbers in the tenement garment industry than those of shopkeepers or entrepreneurs.

It took little capital to set up a bakery shop. Unlike the cracker industry, which had become highly mechanized by that time, bread baking remained committed to laborious hand methods. There were, to be sure, some important mechanical inventions: the mechanical mixer in 1880, the molding m...