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Tuesday, October 27, 2015

Lochner v. N.Y.

We also judicially know that the number of hours that should constitute a day's labor in particular occupations involving the physical strength and safety of workmen has been the subject of enactments by Congress and by nearly all of the states. Many, if not most, of those enactments fix eight hours as the proper basis of a day's labor.

I do not stop to consider whether any particular view of this economic question presents the sounder theory. What the precise facts are it may be difficult to say. It is enough for the determination of this case, and it is enough for this court to know, that the question is one about which there is room for debate and for an honest difference of opinion. There are many reasons of a weighty, substantial character, based upon the experience of mankind, in support of the theory that, all things considered, more than ten hours' steady work each day, from week to week, in a bakery or confectionery establishment, may endanger the health and shorten the lives of the workmen, thereby diminishing their physical and mental capacity to serve the state and to provide for those dependent upon them.

- Justice Harlan (Lochner v. N.Y., dissenting opinion for three justices)
This week's C-SPAN Landmark Cases episode dealt with a now infamous decision striking down a ten hour law (sixty hours a week) for bakers in 1905. This led to the so-called "Lochner Era," which is a sort of open-ended trope that means different things to different people. Tropes are helpful for their flexibility so it is not surprised it is used in various ways. Justice Black, for instance, saw it as a general concern about the courts striking down laws based on their own predilections, thus he focused on the Bill of Rights and other specific constitutional text (though, e.g., his application of the "one person, one vote" principle showed his choices there is debatable and at times rather broad in scope).

Others felt "shifting economic arrangements" were particularly something for legislatures to handle but that other personal rights like marriage or privacy could warrant closer judicial scrutiny. Some also argue that on the merits the economic regulations such as minimum wage laws could meet even somewhat heightened scrutiny given let's say the imbalance of power involved. Use of terms like "liberty" or structural principles such as federalism to find times when the courts should look closer at governmental action are used by both sides in different ways. Some still worried about "Lochner" but found some cases where the courts could go past specific terms like "speech"* though at times it still is used as an open-ended attack at alleged judicial activism even when the courts seem to be applying equal protection or some other express provision. See, e.g., CJ Roberts in the same sex marriage cases. 

And, just how often the courts in the "Lochner Era" struck down laws is also debated, especially given we are talking thirty years.  I think this moves to my view -- the case has been exaggerated some and this leads to some exaggerated balancing such as by David Bernstein.  His book on the case has a picture on the cover where the author of the opinion knocks out Justice Holmes whose dissent is particularly famous.  But, Harlan's dissent (also dissented in Plessy v. Ferguson, the segregation case and was an early supporter of the incorporation of the Bill of Rights)  is to me more telling. Justice Harlan supported the "liberty of contract" and in other cases found laws that violated it. But, here found that the law was reasonable as a public health measure.

This moderate approach brings to mind last week's Slaughterhouse Cases program. Holmes in his dissent notes that the Constitution favors no economic theory and Harlan has a bit about that too.  Likewise, there is no assumption that government merely has an open-ended right to regulate unless a clear enumerated provision of the Constitution stops them.  Holmes spoke of laws where "a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law." Justice Harlan at times was more strict in applying this test than Holmes, but even that one has some bite especially in certain hands. 

I think it fairly easy to argue that we have a "liberty" of contract on some basic level since this is a basic aspect of everyday freedom. Each purchase we make, each sale we make is a type of contract.  Freedom itself entails some freedom to contract. Due process is but one place to find such a right. And, no justice then or now thinks the freedom absolute.  The problem was to determine if a certain law was reasonable and over time a complex set of rules were developed to do so.  After the 1930s, government had a more free hand though there remains various constitutional limits (e.g., selling to a certain race) with some states having stricter rules than the federal Constitution as now applied.  

The case was closely decided in both the state and federal courts and I think a major reason was that the law was in flux at the time. The government had for a long time regulated business but the level of regulation was growing as society changed in so many ways.  It was also a great time of economic development with reformers trying to pass a range of laws, including the health and safety aspects of the law here that even Randy Barnett (one of the two guests on the program) deems perfectly constitutional.  The powers that be were still divided here with economic libertarians having a major place at the table.  And, there was great concern over "class legislation," including progressive income taxes and various laws passed to aid workers.  

This is what was seen as a red flag to the five justices here.  If this was a mining law, though not every justice signed on even there, a maximum hour law would likely be okay.  A few years later, if not as much in the 1920s, women workers also received special treatment. But, baking seemed a normal and safe profession that did not need special treatment like this. The majority opinion had a section that was a sort of parade of horribles that would seem to question a range of occupational and safety rules of today's workplace.  But, in particular, it was not a general law (like the current forty hour law basically is) but favored a special class.  The dissent argued that there was a good reason for that but others questioned it.  

At the end of the day, changing understandings of economic life resulted in changes of this understanding at least to the degree it was seen as a constitutional problem.  I think that is an appropriate and acceptable way of constitutional change and overall don't think the ruling particularly horrible. The Harlan dissent to me does seem correct and at the time it was in the air what way the 5-4 would go.  But, the difference between the two opinions is less than some suggest.  The clash is greater if we take Holmes' approach given his overall record though even he at times found limits including in the speech area.  But, other examples can be found such as privacy and takings jurisprudence.

The case is another useful landmark both as a view of an age (bakers, works, politics, judges of the era etc.) and for its role in jurisprudence over the years.  Theodore Roosevelt is is said was the person who first gave it its mark of infamy, others later seeing it as something of a badge of honor.  I hold a somewhat middle view.  Lochner's first name btw was Joseph.


* A lot more can be said about this subject, but slightly edited this paragraph to add a bit more nuance. One thing to add too is that "economic" and "non-economic" are not going to be the only thing that matters here no more than some other black/white dividing line. So, e.g., commercial speech is protected to some degree as is sale of contraceptives. Economic regulation nonetheless in some broad sense remains a noticeable category as particular "public" and more open to regulation even when the regulations seem to be pointless and favoring certain groups. This leads to let's say broad regulations of hairdressers or something that make sympathetic cases for those of Randy Barnett's ilk. 

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