Lochner v. New York, 198 U.S. 45 (1905)

Adam Smith’s Wealth of Nations recites an axiom heralded in Lochner v. New York: A man’s labor is his property. Lochner struck down New York’s Bakeshop Act limiting a baker’s labor to ten hours a day. The Act denies liberty of contract in violation of due process of law, it exceeds the limits of the police power, it is substantively bad. ‘‘There is, in our judgment,’’ Justice Peckham’s majority opinion exclaims, ‘‘no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health or the health of the individuals who are following the trade of a baker.’’ ‘‘We do not believe in the soundness of the views which uphold this law.’’ To the contrary, Justice Peckam, and especially Justice Brewer, believed in the ‘‘survival of the fittest’’ philosophy of English sociologist and philosopher Herbert Spencer, whose The Man Versus the State (1884) decried hours of labor legislation as so much nonsense. Thus five justices liberated Joseph Lochner to work his bakeshop employees as he saw fit. Government had no business protecting bakers as a class, or their unions. Such a motive, Peckham hints, lay behind the Bakeshop Act.

Justice John Marshall Harlan dissented. He put the Burden of Proof on Lochner to establish that the statute is ‘‘plainly and palpably in excess of legislative power.’’ Citing Professor Hirt’s treatise on Diseases of Workers, Harlan notes that the labor of bakers is among the most laborious imaginable. ‘‘Nearly all bakers are pale-faced and of more delicate health than the workers of other crafts, which is chiefly due to their hard work and their irregular and unnatural mode of living.’’ Many reasons of substantial character support the legislative policy of the Bakeshop Act. For Harlan, White, and Day that is the end of the matter.

Justice Holmes dissented, alone: ‘‘This case is decided upon an economic theory which a large part of the country does not entertain.’’ Neither Adam Smith nor Herbert Spencer determines the scope of Liberty: ‘‘The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.’’ ‘‘[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.’’

Lochner’s restricted view of the police power held sway in constitutional law for a generation. It was not open to government to aid unions (Adair v. United States, 1908), or laborers (Coppage v. Kansas, 1915). Justice Sutherland’s opinion in Adkins v. Children’s Hospital (1923), striking down the District of Columbia Minimum Wage Act, is of a piece with the philosophy of Lochner v. New York. The era of abstract liberty and equality of working classes ended with the Great Depression, the New Deal, and Chief Justice Hughes’s opinion in West Coast Hotel v. Parrish (1937). The old order of the negative State was gone, replaced by Franklin Roosevelt, the Welfare State, and the Hughes Court. Today, the ghost of Lochner is heralded by those who attack Roe v. Wade, while economic libertarians urge Lochner’s resurrection.

PAUL R. BAIER

References and Further Reading

• Bernstein, David E., Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, Georgetown Law Journal, 92 (2003): 1:1–60.
• Frankfurter, Felix, Hours of Labor and Realism in Constitutional Law, Harvard Law Review 29(1916): 4 :353–373.
• Gillman, Howard. The Constitution Besieged. Durham and London: Duke University Press, 1993.
• Kens, Paul. Judicial Power and Reform Politics: The Anatomy of Lochner v. New York. Lawrence: University Press of Kansas, 1990.
• Phillips, Michael J. The Lochner Court, Myth and Reality. Westport and London: Praeger, 2001.
• Pound, Roscoe, Liberty of Contract, Yale Law Journal 18 (1909): 7:454–487.
• Siegan, Bernard H. Economic Liberties and the Constitution. Chicago and London, University of Chicago Press, 1980.
• Strauss, David A, Why Was Lochner Wrong?, University of Chicago Law Review 70 (2003): 1:373–386.
• Sunstein, Cass R. Lochner’s Legacy, Columbia Law Review 87 (1987): 5:873–919.
• Symposium: Lochner Centennial Conference, Boston University Law Review 85 (2005): 3: 671–1015, Introduction by David J. Seipp, contributors Jack M. Balkin, Lynn A. Baker, Pamela S. Karlan, Keith E. Whittington, Barry Cushman, Larry Yackle, David E. Bernstein, Howard Gillman, Daniela Caruso, Gerald Leonard.
• Symposium. The 100th Anniversary of Lochner v. New York, 198 U.S. 45 (1905), New York University Journal of Law and Liberty 1 (2005): 1:323–669 [includes photographs], Foreword by Randy Barnett, contributors Richard A. Epstein, Jonathan Lurie, James W. Ely, Jr., Paul Kens, Wayne McCormack, Matthew S. R. Bewig, Daniel A. Crane, Ellen Frankel Paul, Rebecca Brown, Jonathan Klick, Francesco Parisi, Todd Zywicki, Asheesh Agarwal.

Cases and Statutes Cited

• Adair v. United States, 208 U.S. 161 (1908)
• Adkins v. Children’s Hospital, 261 U.S. 525 (1923)
• Coppage v. Kansas, 236 U.S. 1 (1915)
• West Coast Hotel v. Parrish, 300 U.S. 379 (1937)

See also Carolene Products v. United States, 304 U.S. 144 (1938); Due Process of Law (V and XIV); Economic Regulation; Economic Rights in the Constitution; Freedom of Contract; Harlan, John Marshall, the Elder; Holmes, Oliver Wendell, Jr.; Hughes, Charles Evans; Judicial Review; Locke, John; New Deal and Civil Liberties; Police Power of the State; Roe v. Wade, 410 U.S. 113 (1973); Roosevelt, Franklin Delano; Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873); Theories of Civil Liberties