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Lochner v. New York (1905), introduced the concept of "economic liberty" into the constitution.  Since about 1937, Lochner has come to be regarded, and even reviled, as wrongly decided.  That is, until now, when the opponents of the Affordable Care Act are asking the court, to strike down the entire Affordable Care Act as beyond the power of Congress.  Now, Lochner is not mentioned by the law's opponent, but its even more detested offspring, Hammer v. Dagenhart is.)

In Lochner two bakery owners were convicted of violating a law  which barred them from allowing their employees to work more than 60 hours per week.  They appealed, first to the highest court in New York, which turned down the appeal, and then to the Supreme Court. After some preliminary remarks, the court defined the issue:

The right to purchase or to sell labor is part of the liberty protected by [the Fourteenth Amendment] unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers, and with such conditions the Fourteenth Amendment was not designed to interfere.

The State therefore has power to prevent the individual from making certain kinds of contracts, and, in regard to them, the Federal Constitution offers no protection. If the contract be one which the State, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the Fourteenth Amendment. Contracts in violation of a statute, either of the Federal or state government, or a contract to let one's property for immoral purposes, or to do any other unlawful act, could obtain no protection from the Federal Constitution as coming under the liberty of.. person or of free contract.

Below the fold, I show how the court, having erected this standard, proceeded to use it to establish itself as a super-legislature, what conservatives now condemn as "judicial activism" and then, having whisked away state regulation under the spurious doctrine of "economic liberty", went on to strike down federal regulation of things such as child labor, on the grounds it was not sufficiently linked to "interstate commerce".  

These ideas, once thought long dead, are being revived by the challengers to the Affordable Care Act, by which they hope, it appears, to set up the Supreme Court again as a super-legislature to challenge any reform which the progressive movement might actually be able to get through Congress.

In Lochner the court was presented with a series of prior cases where apparently similar regulations by a state had been upheld, but Justice Peckham, writing for the court, held that these weren't binding, as they either arose out of mining and smelting regulations Holden v. Hardy, contracting rules set by a state for municipalities, (Atkin v. Kansas), wage arrangements for miners and coal workers (Knoxville Iron Co. v. Harbison), compulsory vaccinations (Jacobson v. Massachusetts), and a requirement that barber shops close on Sundays (Petit v. Minnesota).  

Peckham, writing for the court, was of course quite dishonest in rejecting these precedents.  For surely if a man could be forced to submit to vaccination, his liberty of contract could be curtailed to all no more than 10 hours work per day in a bakery.

After announcing that it would not necessarily respect the state legislature's declaration that a particular law was necessary for the health, safety and welfare of the population, the court  then stated the test by which the constitutionality of these types of statutes would be judged.  

In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course, the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor.
Although the court then protested that "this is not a question of substituting the judgment of the court for that of the legislature", in fact that is exactly what it proceeded to do.  First the court rejected the ability of the state to regulate the hours worked in bakeries based strictly as a matter of labor regulation.  
There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State.
The court next proceeded to reject the case on the health ground, making its own factual findings in lieu of the legislature:
Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week.
This of course was absurd.  When one reads the whole legislation, it's obvious that the legislature felt that people were not just working in the bakeries, but were living there as well,  In the judgment of the legislature, this presented a hazard to public health and safety. Obviously a person who worked more than 60 hours a week might well be inclined to simply sleep at the job, and in fact this was happening.  Again, it was well within the legislature's perogative, simply as a matter of public health, to set a limit as to the hours worked at bakeries lest the bakery workers become residents at their workplaces.  Peckham's single sentence rejection of this as reasonable ground for the legislation was judicial arrogance in the extreme.  

Peckham, unsure it seems of the strength (or lack thereof) blathered on about how some of the state court judges had found the act unconstitutional.  Peckham also found there wasn't enough proof that working more than 60 hours in a bakery was harmful to the health of the workers, although based on his idea of liberty of contract, it seems that the workers should have been able to bargain away their health as well.

Peckham's language on this has to be read to be believed.  He clearly sets himself up as a super-legislator:

We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee. In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others.
So who is to draw the line here, the legislature or the courts, as to which occupations are sufficiently unhealthy to warrant legislative intervention and which are not?  Peckham arrogates that function to the courts.  There's no point in repeating his verbiage here, but he goes on for some length, completely unencumbered by any citation to precedent, about all the horrible things that will happen if bakers in New York are not "free" to work more than 60 hours per week.  

And again, we see Peckham simply making up findings in lieu of the legislature:

In our judgment, it is not possible, in fact, to discover the connection between the number of hours a baker may work in the bakery and the healthful quality of the bread made by the workman. The connection, if any exists, is too shadowy and thin to build any argument for the interference of the legislature. If the man works ten hours a day, it is all right, but if ten and a half or eleven, his health is in danger and his bread may be unhealthful, and, therefore, he shall not be permitted to do it. This, we think, is unreasonable, and entirely arbitrary.
Peckham suspected that the 10 hour a day rule wasn't entirely motivated by health reasons, and he may have been right.  But that possibility didn't foreclose a health or safety rationale as well, yet the mere possibility of an ulterior motive by the legislature was enough for him and the other justices to strike the law down.  For they smelled a rat:
This interference on the part of the legislatures of the several States with the ordinary trades and occupations of the people seems to be on the increase.
Here finally Peckham was able to dredge up a few cases in the lower courts, and so here was the Supreme Court of the United States, picking around for a few cases here and there for legal precedent.  For example, a trial level judge in New York, as well as the Supreme Courts of the states of Washington and Illinois had found that a law requiring persons engaged in horse shoeing obtain, via an examination, licenses was "an arbitrary interference with personal liberty and private property without due process of law."  Of course, an improperly shod horse could break a leg or throw a shoe, which would clearly endanger the public, but no matter, I suppose, as that wouldn't be justfication, in Peckham's eyes, for requiring licensure.

And Peckham again reiterated his suspicion of the legislature's motives:

It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives.  * * *  It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employees (all being men sui juris) in a private business, not dangerous in any degree to morals or in any real and substantial degree to the health of the employees.
Justice Harlan dissented, and, joined by two other justices, cited studies showing the health-destroying effects of working in a bakery in those times.  Justice Holmes also dissented, and squarely accused the majority of acting as a super-legislature.

Effect of Lochner
Lochner gave rise to the so-called "Lochner era" of constitutional interpretation, where in fact the courts did act as super-legislatures, but all in the guise of construing the liberty clause of the 14th amendment.  Powerful interests that were affected by legislative action would resort to the courts to have legislation overturned.  While as it turns out, the courts generally sustained legislative action against Locher challenges, this was certainly not always true, and the fact that the courts might strike an economic or social regulation down shaped or delayed such legislation.

Lochner also spelled over into interpretations of the power of Congress to regulate interstate commerce.  In this situation, the court ostensibly was construing what was or was not "commerce between the states" but in fact it sat as essentially a superlegislature, as the definition of commerce was something that could be expanded or contracted at will insofar as it suited the majority on the court.  Probably the absolute lowest point here came with the case of Hammer v. Dagenhart, where the court ruled that Congress lacked the power to bar child labor in factories, on the grounds that the power to regulate interstate commerce did not extent to the manufacture of goods intended for interstate commerce, but only to their actual transportation.  

Eventually all this meddling by the courts claim to an end in 1937 when in the so-called "Judicial Revolution", the Supreme Court, in a series of cases, finally decided to get out of the business of invalidating legislative action in the economic sphere.  Hammer v. Dagenhart was overruled, although Lochner technically never was.  But Lochner in particular came to be regarded on the same level as the Dredd Scott decision as a monumental misstep in constitutional interpretation.

There have been a few people such as Richard A. Epstein, allegedly a legal scholar, who have gone about saying that Lochner and Dagenhart were properly decided.  Listen to Epstein, whose Wikipedia entry betrays no sign of ever having worked as a 12 year-old child in a factory, or worked for 60 hours a week in a bakery, pining for the good old days of child labor:

[A] similar [Congressional] scheme was used to rein in child labor within the states (which had their own child-labor laws) by refusing to let any firm that used child labor anywhere in its operations to ship its goods into interstate commerce. Firms that produced most of their goods for sale outside their home state were forced to capitulate to the federal standard.

That decision was struck down in Hammer v. Dagenhart on the basis that the regulation of manufacture, as of 1918, was still within the exclusive power of the states. The connection between the commerce power and the spending power was made clear some four years later in the Child Labor Cases that held, sensibly enough, that Congress could not tax the goods shipped in interstate commerce by firms that used child labor anywhere in their production. Set that tax high enough and it becomes tantamount to a ban.

As you might guess, this sort of voodoo thinking is popular with people like the Koch Brothers who run the Cato Institute as well as the state of Wisconsin through their sockpuppets.  

Next week the court will hold extensive oral argument on the Affordable Care Act.  Epstein and Mario Loyola, a frequent National Review contributor, have written a friend of the court brief (.PDF), where they define their issue as "Whether Congress has the power under Article I of the U.S. Constitution to require individuals to purchase health insurance."  

Just a scan through the authorities shows some of our good old friends from the history of the commerce clause, including Hammer v. Dagenhart, and the nightmare of every whackadoodle New Deal-hating conservatives, Wickard v. Filburn (1942).  By the way, another case, largely forgotten now except by the whackadoodles, is Champion v. Ames, (1903), which held that Congress could ban interstate transport of lottery tickets.  And here's the Epstein / Loyola love letter to Dagenhart, from page 19 of the brief:

The expansionist effort to use the federal commerce power to gain control over purely intrastate commerce came to a temporary halt in Hammer v. Dagenhart, 243 U.S. 342 (1918), where the Court, again by a five-to-four vote refused to extend Champion.   Hammer barred Congress from enacting a child labor law that prohibited the shipment in interstate commerce of any goods made in factories that did not conform to the 14-year-old federal minimum age standard for child labor. Once again, it was clear that Congress could not use its power over interstate commerce to control activities that were reserved to the States under the original constitutional scheme. Moreover, as direct regulation was off-limits to the federal government, so too was taxation. Four years later, the Child Labor Tax Cases, 259 U.S. 20 (1922), held that Congress could not seek to pressure the States by taxing interstate trade in goods made in factories that employed child labor. The basic constitutional structure held firm.
Lochner is nowhere mentioned in the brief, but its spirit is there, as Epstein and Loyola go on and on, largely without any legal authority, about the horrors that will ensue if the individual mandate is not stricken down, and in so doing they argue that much of the New Deal was unconstitutional.  Presumably (although they are silent on this) that would include Social Security as well.  

But no matter how Epstein and Loyola dance around the issue,ultimately the stench of Lochner and Dagenhart will cause SCOTUS to uphold the law, and it will not be a close vote.  The moment that Epstein and Loyola claimed that Dagenhart was properly decided was the moment their case was lost.

Originally posted to Plan 9 from Oregon on Sun Mar 25, 2012 at 08:23 AM PDT.

Also republished by Community Spotlight.

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