VNV Tuesday – …Doomed to Repeat It (Lochner v. New York, 1905; Part Two) 7/17/18

Lochner's Home Bakery, where it all started.
Lochner’s Home Bakery, where it all started.

Last week, the background leading to the Lochner v. New York lawsuit was discussed, as well as the decision of the majority which reversed the holdings of the county court, the New York Supreme Court, and the Court of Appeals. (Part One) Initially, the vote was 5-4 in favor of upholding the New York law, and Justice John Harlan wrote the draft opinion, while Justice Rufus Peckham wrote the draft dissent. Somewhere along the way, however, one justice changed their vote (most sources suggest it was Chief Justice Melville Fuller), and the opinion of Justice Harlan, with Justices Edward White and William Day concurring, became the dissent. Justice Oliver Wendell Holmes wrote a separate dissent.

The Harlan Dissent
The Harlan dissent was well-crafted and traditional in its form. It opens with an affirmation that the police power of the State does exist and has been recognized (police power being a legal term which refers to laws and regulations that protect public health, safety, and welfare). Several citations of previous decisions are provided.

While this court has not attempted to mark the precise boundaries of what is called the police power of the State, the existence of the power has been uniformly recognized, both by the Federal and state courts.

All the cases agree that this power extends at least to the protection of the lives, the health, and the safety of the public against the injurious exercise by any citizen of his own rights. (Lochner v. New York)

Next, Harlan affirms the freedom of contract (the freedom of employees to sell their labor to employers), but with the important caveat that it had to be subordinate to the police power of the State.

So, in Barbier v. Connolly, 113 U.S. 27:
But neither the [14th] Amendment — broad and comprehensive as it is — nor any other Amendment was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people.

Speaking generally, the State, in the exercise of its powers, may not unduly interfere with the right of the citizen to enter into contracts that may be necessary and essential in the enjoyment of the inherent rights belonging to everyone, among which rights is the right
to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation. (Lochner v. New York)

From there, Harlan discusses at length the conditions under which the State’s police power may be limited and takes issue with the majority’s argument that the health of the bakery workers was not a legitimate concern.

Granting then that there is a liberty of contract which cannot be violated even under the sanction of direct legislative enactment, but assuming, as according to settled law we may assume, that such liberty of contract is subject to such regulations as the State may reasonably prescribe for the common good and the wellbeing of society, what are the conditions under which the judiciary may declare such regulations to be in excess of legislative authority and void? Upon this point there is no room for dispute, for the rule is universal that a legislative enactment, Federal or state, is never to be disregarded or held invalid unless it be, beyond question, plainly and palpably in excess of legislative power. (Lochner v. New York)

…the statute must be taken as expressing the belief of the people of New York that, as a general rule, and in the case of the average man, labor in excess of sixty hours during a week in such establishments may endanger the health of those who thus labor. Whether or not this be wise legislation it is not the province of the court to inquire. Under our systems of government, the courts are not concerned with the wisdom or policy of legislation. So that, in determining the question of power to interfere with liberty of contract, the court may inquire whether the means devised by the State are germane to an end which may be lawfully accomplished and have a real or substantial relation to the protection of health, as involved in the daily work of the persons, male and female, engaged in bakery and confectionery establishments. (Lochner v. New York)

…Therefore, I submit that this court will transcend its functions if it assumes to annul the statute of New York. It must be remembered that this statute does not apply to all kinds of business. It applies only to work in bakery and confectionery establishments, in which, as all know, the air constantly breathed by workmen is not as pure and healthful as that to be found in some other establishments or out of doors. (Lochner v. New York)

It’s easy for a non-lawyer (like myself) to lose the significance of the opinion and dissent when awash in citations of previous cases with which one has no familiarity. Contrasting and comparing the opinion and the dissent clears away some of the fog. The Peckham [majority] opinion held that the law had exceeded the limits of the police powers of the State; it was a violation of the due process clause of the 14th Amendment, and it was neither a labor law, nor was it (in their view) a legitimate health law. In 1889, when Justice Peckham was still a judge on the New York Court of Appeals, he wrote a dissent which included this observation, “Statutes of the nature of that under review [People v. Budd], limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences in the rights of the individual.” With Lochner, his rejection of what he saw as the paternalism of 17th- and 18th-century law was replaced with an elevation of the rights of property and the individual liberty of contracts. In an era where capital was king and social Darwinism was viewed as a net positive, this position was not altogether shocking but would prove to be immensely significant.

Conversely, the Harlan dissent held that the law was not an unconstitutional infringement on the right to contract and therefore did not violate the due process clause of the 14th Amendment (Article XIV, Section 1). In addition, the dissent argued quite plainly that the majority was substituting its judgment for that of the New York legislature without a constitutional basis (emphasis mine):

We are not to presume that the State of New York has acted in bad faith. Nor can we assume that its legislature acted without due deliberation, or that it did not determine this question upon the fullest attainable information, and for the common good. We cannot say that the State has acted without reason, nor ought we to proceed upon the theory that its action is a mere sham. Our duty, I submit, is to sustain the statute as not being in conflict with the Federal Constitution for the reason — and such is an all-sufficient reason — it is not shown to be plainly and palpably inconsistent with that instrument. (Lochner v. New York)

It also had a section, that in retrospect, is downright prescient:

A decision that the New York statute is void under the Fourteenth Amendment will, in my opinion, involve consequences of a far-reaching and mischievous character; for such a decision would seriously cripple the inherent power of the States to care for the lives, health and wellbeing of their citizens. Those are matters which can be best controlled by the States. [p74] The preservation of the just powers of the States is quite as vital as the preservation of the powers of the General Government. (Lochner v. New York)

The Holmes Dissent
The Holmes dissent is notable for a few reasons: it is extremely short, and it is not overly-laden with cites of previous cases. It is, instead, a rhetorical indictment (in the colloquial, literary sense, not the legal sense) of the judicial philosophy that led to the majority’s decision. The dissent is so short that I have included the whole thing below.

I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent.

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Securities Co. v. United States, 193 U.S. 197. Two years ago, we upheld the prohibition of sales of stock on margins or for future delivery in the constitution of California. Otis v. Parker, 187 U.S. 606. The decision sustaining an eight hour law for miners is still recent. Holden v. Hardy, 169 U.S. 366. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But 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.

It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that 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. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss. (Lochner v. New York)

In this dissent, Holmes is displaying his allegiance to the practice of judicial restraint, where judges limit their own power.  In this case, it is not so much that he is deferring to the “wisdom” of legislators (in fact, Holmes did not have a very high opinion of legislators, particularly as it pertained to their abilities at understanding and being thoughtful interpreters of the Constitution).

Legislation was a litmus paper that revealed the balance of political power in a society. Thayer [ed. a leading proponent of judicial restraint with whom Holmes had worked at one point] had thought political considerations inescapable when a court was dealing with constitutional issues, but that those considerations would push judges toward upholding even statutes that they thought probably unconstitutional. That was the opposite of Holmes’s thinking; he believed that judges who thought in political terms would be prone to invalidate a challenged law if their political ideology diverged from the legislature’s. The Rise and Fall of Judicial Self-Restraint

Nor is Holmes objecting to the majority decision on the basis of support for a paternalistic approach to legislation; in fact, he personally disapproved of paternalistic laws.  His dissent is very much an objection to process; in today’s terms, it was a meta dissent.  While the majority opinion and the Harlan dissent argued about the appropriate role and limits of the police power of the State, Holmes took a totally different approach; an approach that would also ultimately have profound significance.

The Constitution did not embody a particular economic theory, so judges could not use its provisions to implement one. The free labor principle, as embodied in the liberty of contract doctrine, was subject to “the right of a majority to embody their opinions in law.” Not being members of that majority-being unelected officials who were distinct from legislators-judges needed to defer to legislative judgments in most cases. “Police power”
was simply a fiction that made such deference palatable. Revisiting Substantive Due Process and Holmes’s Lochner Dissent

This is tough stuff to synthesize in lay terms and even tougher stuff to understand without multiple readings. Although I am not a lawyer, feel free to ask questions if you’re confused; I’ll do my best to clarify where I can.
Next week I’ll attempt to tie it all together in terms that make sense both historically and with an eye on current trends and possibilities.

About DoReMI 165 Articles
Now a Michigander, by way of Ohio, Illinois, Scotland, Rhode Island, and Pennsylvania. Gardener. Sewer. Democrat. Resister.


  1. Thank you DoReMI for this series. Have you considered becoming a lawyer? 😁

    • Oh dear goddess, no! (As long as I can approach this stuff from a historical perspective, it’s fun for me, but that’s as far as it goes.)

      • I really appreciate that you make it easy to understand the legal aspects without drowning us in jargon. So again, thank you.

  2. {{{DoReMI}}} – Thank you for synthesizing this – even the short passages of legal opinion made my eyes go out of focus and turned the whole thing into word salad. But it’s quite clear as to which group of Justices actually were “legislating from the bench” and which were attempting to do their actual job regarding validating or invalidating legislation based on constitutionality. And the Deplorables of whatever Age, whatever party, forever work against the health and wellbeing of ordinary people – and forever Project their actions and beliefs onto those trying to stop them. Moar {{{HUGS}}}

    • I hear you about word salad. In some ways, it’s easier to read the opinions in their entirety; there’s a flow with well-written opinions that makes them easier to read than just excerpts. And I’ve probably painted Peckham as the villain of the piece more than I should. He was a highly-respected jurist, albeit small-c conservative in his leanings. He was a huge proponent of liberty of contract (which Holmes viewed as another judge-produced concept as it related to the 14th Amendment), but from a historical perspective, it was a position that made a certain amount of sense. Liberty of contract in many ways was a reaction against the restrictive terms of indentured servitude and apprenticeships. Even anti-union positions were initially couched in those terms in the legal world, although the industry titans of the time had their own reasons for objecting.

      The tension between judicial activism and judicial restraint is pretty interesting. Holmes is lauded as an exemplar of judicial restraint, while at the same time is credited with being a forerunner of the Progressive Movement in our history. He worked through the apparent contradictions in a sensible way, but to the casual observer, it makes no sense. After doing a deep dive into his writings, I can appreciate his genius in a way I never had before (beyond his famous name, I knew little about him). But he sure doesn’t make it easy; there’s a certain amount of crypticness in his writing that makes deciphering him a challenge.

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