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What's Wrong with Lochner?

-- By ConradCoutinho - 16 Apr 2010

Lochner v. New York, 198 U.S. 45, (1905), is often seen as a primary member of the so-called anti-canon of the U.S. Supreme Court. These are the cases--like Dred Scott v. Sanford, 60 U.S. 393, (1856) ,and Plessy v.Ferguson, 163 U.S. 537, (1896), -- that were wrong "the day that they were decided." Cases in the anti-canon are only cited to distinguish from one's own view or draw comparisons to one's opponent's view. Like many cases in the anti-canon, there are substantially varying interpretations of precisely what was "wrong" with Lochner.

Though these interpretations are not inherently exclusive to one another, the interpretation of Lochner by Cass Sunstein in Lochner's Legacy, 87 Colum. L. Rev. 873 seems to me the most valuable to a lawyer interested in creativity. Sunstein sees Lochner as representing a principle of neutrality in Constitutional interpretation--a "neutrality" with a preference for government inaction, maintenance of the status quo and maintenance of common law distributions of wealth and entitlements.

Lochner v. New York

Facts

Lochner was a test case brought to challenge the provisions of The Bakeshop Act which limited the hours bakery shop employees could work to no more than 10 hours per day and 60 hours per week. Joseph Lochner was convicted of employing a baker for more than 60 hours in a single week.

Holding

Freedom of Contract

Justice Peckham, writing for the majority, stated that "general right to make a contract in relation to [one's] business is part of the liberty of the individual protected by the Fourteenth Amendment."

Permissible Abrogrations on the Freedom of Contract

The Court held that state "police power" can justify abrogation of an individual's freedom of contract for "legitimate ends"--for example, public health and public morality. The court held that the provisions of The Bakeshop Act in question was not directed toward any of these legitimate ends. Peckham takes great pains to outline why he believed that the limit on work hours was not related to the health of the public or the bakers--famously stating, "clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours week."

Interpretations

The Standard Interpretations

Some argue that Lochner is wrong because it stands for unprincipled judicial activism through the expansion of the Due Process Clause of the 14th Amendment. On this view, the Lochner Court used the right to strike down unconstitutional legislation to strike down laws that did not conform to it's policy preferences--thereby, usurping power that did not rightfully belong to them. Many supporters of this view see the Griswold-Roe line of cases as the progeny of Lochner--or, at least, as sharing the underlying philosophy of Lochner.

Other's argue that Lochner is wrong because of the specific economic theory--laissez faire economics--that it implicitly endorsed by acknowledging a Constitutionally protected right to contract. The critics of the court who support this view argue that the Court took an unabashedly partisan stance against any form of welfare or labor legislation. The supporters of this view see several of the cases striking down New Deal legislation--for example, the striking down of minimum wage legislation in Adkins, 261 U.S. 525 (1923)--were the progeny of Lochner. On this view, Lochner was largely overturned through a line of cases beginning with West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1973), where the Court upheld minimum wage legislation. Thereafter, the Court began to uphold the New Deal economic legislation.

Other's, of the libertarian persuasion, support this view of Lochner--as importing laissez fair economics into the Constitution--but see it as a positive. They view Lochner and its progeny as correctly decided.

Lochner Standing for a Neutrality Principle

Cass Sunstein argues that the severe limitation of permissible basis for state action that abrogates freedom of contract in Lochner reflects a desire to keep legislation "neutral." Public health, moral laws or laws justified by a broad public purpose are justified on the basis of the state's police power; whereas laws that confer a benefit onto one sector of society--for example, workers--at the expense of another--for example, owners--was partisan and impermissible as a violation of due process.In essence, an individual freedom of contract could be violated only for "neutral" reasons--for purposes that affected the public-at-large.

What's Wrong with Lochner?

On its face, this neutrality principle sounds appealing. The problem is that neutrality is conflated by defaulting to government inaction--that in acting, the neutrality of a decision must be evaluated. Inaction is neutral because it leaves the "natural" state in place.

But, there is nothing natural about the state of resource distribution. If inaction is neutral, then the status quo is natural. However, the status quo would be different if, for example, the market for goods took on a different shape because of different conception of property rights protected by the common law.

For example, if we took a Hobbesian state of nature as a "natural state", implementing a rule to stop theft or trespass is redistributive and non-neutral--that is, it benefits some and hurts others.

The Fate of Lochner?

The Lochner line, conceptualized in this way, has not been completely overturned. For example, in Buckley v. Valeo, 424 U.S. 1 (1976) , where the Court ruled that spending money to influence elections is protected free speech, the Court ruled that the government could not take significant action to change the the "neutral state"--the distribution of resources which gave rise to differential ability to "speak."

*Conrad, I apologize for the delay.

My general thoughts:

1. Less exposition, more reflection. Given that the Lochner case is so firmly embedded in American constitutional consciousness, there was no need to flesh out the facts or the holding to the degree that you did. Moreover, your voice is missing (for the most part). Even the latter paragraphs are more Sunstein than you. If your thesis is that the Sunsteinian/pro-revisionist interpretation of Lochner is valuable for the creative lawyer, you should speak more to that (or at least make the sections in which you do do that more perspicuous).

2. I was very much interested in this line in particular...

"...whereas laws that confer a benefit onto one sector of society--for example, workers--at the expense of another--for example, owners--was partisan and impermissible as a violation of due process.In essence, an individual freedom of contract could be violated only for "neutral" reasons--for purposes that affected the public-at-large."

Could this public policy exception be invoked to silence your criticism involving Hobbes?

Moreover, while your piece focuses on the implications of the decision itself, the Lochner Legacy is directed at the Lochner era Court, so perhaps your paper would be more robust and honest if you likewise widen the parameter of your analysis. For instance, did it not seem odd to you that Sunstein only quotes from two other cases (Adkins and West Coast Hotel)? In my opinion, these cases do not give anything close to an accurate picture of what was going on. After all, the evidence seems to support the notion that the Lochner era Court was not as averse towards redistribution as the revisionists might have us believe. Redistribution via taxation was perfectly fine. As you mention, Sunstein makes the claim that "consideration of the plight of the disadvantaged" was considered "impermissible partisanship" during the Lochner era and yet antitrust laws were upheld even though they were designed to safeguard small businessman at the expense of monolithic corporations. Or what about the Court's backing of the so-called "poor laws," which arguably had more redistributive consequences than the minimum wage laws.

3. Lochner itself - Did the Court strike down the minimum wage law here because it believed it to be special interest legislation, as Sunstein would have us believe? Nowhere in Peckham's opinion does he even mention class legislation objections to the law (an oddity considering the fact that Joseph Lochner's brief relied heavily on it). Nowhere in the opinion does Peckham incorporate the "immutability of the common law" argument either. Could it be that the Court simply considered the law to have violated a protected liberty without valid police power justification? Peckham even contends that the law was a "mere meddlesome interference with the rights of the individual," which somewhat suggests that he was looking at "rights" from an unqualified, classless perspective. After all, the freedom of contract is omnibenifical.

Hopefully, these comments are helpful to you in some small way. If I think of more to add, I will. I enjoyed reading your paper (stylistically, you do not leave much room for reproach) and I should have a rewrite completed by the end of the week.

Revised Version:

Conrad, I again apologize for the delay. Work slowed down the revision process significantly. As for the revisions, I elected not to deal with the Lochner era Court as I had advised you to do because doing so would change the entire complexion of your piece. Instead, I discarded sections I thought were superfluous and added a reflective portion at the end. Feel free to resubmit this with your own critiques, reflections, etc.

What's Wrong with Lochner?

Lochner v. New York, 198 U.S. 45, (1905), is often seen as a primary member of the so-called anti-canon of the U.S. Supreme Court. These are the cases--like Dred Scott v. Sanford, 60 U.S. 393, (1856) ,and Plessy v.Ferguson, 163 U.S. 537, (1896), -- that were wrong "the day that they were decided." Lochner and its progeny have been regarded as the cornerstone of judicial error and yet much controversy remains over just how the Lochner era Court erred. Among the varying interpretations, Cass Sunstein in Lochner's Legacy, 87 Colum. L. Rev. 873 provides that the Lochner Court’s most egregious error was not its purported "judicial activism" but rather its advocacy of a principle of neutrality in constitutional interpretation--a "neutrality" with a preference for government inaction, maintenance of the status quo and maintenance of common law distributions of wealth and entitlements. In this paper, I will first provide a brief explanation of what went on in Lochner, then I will distill Sunstein’s interpretation of the decision. Finally, I will opine on Sunstein’s characterization, asserting that it is bereft of textual support from Justice Peckham’s majority opinion.

Lochner v. New York

Permissible Abrogrations on the Freedom of Contract The Court held that state "police power" can justify abrogation of an individual's freedom of contract for "legitimate ends"--for example, public health and public morality. According to the Court, the Bakeshop Act in question was not directed toward any of these legitimate ends. Lochner Standing for a Neutrality Principle Cass Sunstein argues that the severe limitation of permissible basis for state action that abrogates freedom of contract in Lochner reflects a desire to keep legislation "neutral." Public health, moral laws or laws justified by a broad public purpose are justified on the basis of the state's police power; whereas laws that confer a benefit onto one sector of society--for example, workers--at the expense of another--for example, owners--was partisan and impermissible as a violation of due process. In essence, an individual freedom of contract could be violated only for "neutral" reasons--for purposes that affected the public-at-large.

Why is Neutrality a Vice?

For Sunstein, the problem with the neutrality principle was that it conflated by defaulting to government inaction--that in acting, the neutrality of a decision must be evaluated. Inaction is neutral because it leaves the "natural" state in place. But, there is nothing natural about the state of resource distribution. If inaction is neutral, then the status quo is natural. However, the status quo would be different if, for example, the market for goods took on a different shape because of different conception of property rights protected by the common law. For example, if we took a Hobbesian state of nature as a "natural state", implementing a rule to stop theft or trespass is redistributive and non-neutral--that is, it benefits some and hurts others.

Does Sunstein present a Veritable Indictment of Lochner?

Probably not. While Sunstein deserves to be praised for moving the discourse beyond the trite “judicial activism” critique, his argument lacks textual support. Nowhere in Peckham’s opinion does he declare the Court’s subservience to common law principles or its commitment to using “status quo distributions as a baseline,” as Sunstein would put it. Rather, the Court seems to have relied on some of its earlier decisions to establish that bakers and their employers had a right to liberty of contract. Under Holden v. Hardy, for example, liberty of contract could only be violated to safeguard penurious workers or to preserve the health of either bakers or the public at large. The presumption was in favor of liberty of contract and could only be surmounted if the law was a "labor law" needed to ameliorate some deficiency in the bakers' ability to negotiate their contracts or a "health law," and, therefore, within the state's police power. Peckham subjects the Bakeshop Act to the same heuristic, contending that the bakers in question and bakers generally are “not wards of the State” in need of special protection from the machinations of their employers (and so the “labor law” exception would not apply) nor was the baking profession a particularly unhealthful one, barring its construal as a “health law” – the second exception. Without this police power justification, the Court reduced the Bakeshop Act to “a mere meddlesome interference” with the rights of the individual and abrogated it accordingly.

Moreover, the Court did not advance the notion that the Bakeshop Act was special interest legislation and thus in need of being repealed in order to preserve neutrality. The Court merely concludes that the “"real object and purpose [of the Bakeshop Act was] simply to regulate the hours of labor between the master and his employees . . . in a private business, not dangerous in any degree to morals or in any real and substantial degree, to the health of the employees." The Court does not go any further in divining legislative intent and it certainly does not suggest the Bakeshop Act’s possible conferral of a class benefit. If anything, the “mere meddlesome interference with the rights of the individual” language implies that the Court was looking at "rights" from an unqualified, classless perspective. After all, the freedom of contract is omnibenifical.

The Fate of Lochner?

The Lochner line, conceptualized in the revisionist way, has not been completely overturned. For example, in Buckley v. Valeo, 424 U.S. 1 (1976) , the Court ruled that spending money to influence elections is protected free speech. However, even in Buckley, the conclusion that the Court was protecting common law wealth distributions (or differentials) pertaining to the ability to speak does not necessarily follow. Rather, it can be argued that the Court simply found that the limitation on expenditures by candidates from their own personal or family resources, and the limitation on total campaign expenditures did not “necessarily enhance the potential for corruption that individual contributions to candidates do…[and so] restricting them did not serve a government interest great enough to warrant a curtailment on free speech and association.” In other words, the Court was only protecting a fundamental right against what it saw as unreasonable legislation, as it has always done.

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