But consider the two decisions that most offended Brandeis and his progressive friends: Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923). In Lochner, the Supreme Court ruled that the maximum working hours provision in New York’s 1895 Bakeshop Act, which forbade bakery employees to work more than 10 hours per day or 60 hours per week, violated the liberty of contract secured by the Due Process Clause of the 14th Amendment, which reads, “nor shall any State deprive any person of life, liberty, or property, without due process of law.”
As Justice Rufus Peckham wrote for the majority, while New York certainly possessed the power to enact health and safety regulations (as all good progressives wanted), the maximum hours provision of the Bakeshop Act “is not, within any fair meaning of the term, a health law.” Not only was the baking trade “not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee,” but the limit on working hours involved “neither the safety, the morals, nor the welfare, of the public.”
So what was the purpose of the law? As George Mason University legal historian David Bernstein has shown, the origins of the Bakeshop Act lie in an economic conflict between unionized New York bakers, who labored in large shops and lobbied for the law, and their nonunionized, mostly immigrant competitors, who tended to work longer hours in small, old-fashioned bakeries. As Bernstein observed, “a ten-hour day law would not only aid those unionized workers who had not successfully demanded that their hours be reduced, but would also help reduce competition from nonunionized workers.” So Lochner not only protected a fundamental economic right, it thwarted an act of economic protectionism as well.
Something similar happened in Adkins v. Children’s Hospital, where the Court struck down the District of Columbia’s minimum wage law for women as a violation of liberty of contract. This was the case where Urofsky claimed Sutherland exhibited “a complete disregard for the real world.” Well, here are some facts about that world. One of the figures in the case was an elevator operator named Willie Lyons, who had earned $35 per month from the Congress Hotel. Under the new minimum wage law, the hotel would have had to pay her $71.50 per month. So they fired Lyons and replaced her with a man willing to work at her old wage. That’s why she sued. As the legal scholar Hadley Arkes memorably put it, “the law, in its liberal tenderness, in its concern to protect women, had brought about a situation in which women were being replaced, in their jobs, by men.”
Had the Progressives cared to look, they would have discovered all sorts of equally inconvenient facts about their various regulatory schemes. More to the point, had Justice Louis Brandeis given economic rights the same constitutional respect he gave to free speech and privacy, the Willie Lyonses of the world might still have a fighting chance in the legal system that Brandeis did so much to reshape.
Damon W. Root (droot@reason.com) is an associate editor of reason.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time.
|3.19.10 @ 4:40PM|#
Somehow I am reminded of the Jack Benny joke--that when an armed robber demanded, "Your money or your life!," Mr. Benny paused for quite some while and replied, "Just a minute. I'm thinking."
|3.19.10 @ 6:17PM|#
Root certainly provides a good capsule of history in these and related pieces, but I wonder: what does he want the reader to conclude from his exposition? Does he seriously think that the public would, or should, tolerate a Supreme Court that struck down wage-and-hours laws with the same exactness that it strikes down free-speech limits?
I also seriously doubt that there is such a wide discontinuity between civil liberties and economic rights before the Supreme Court. True, speech-censorship fares poorly under the Court's 1st Amendment jurisprudence, but most of the other civil liberties in the Bill of Rights are extremely under-enforced. Prison conditions remain barbaric; a savage regime of capital punishment remains in force; there is almost no consequence to violating 4th-Amendment rights; well-nigh harmless herbal highs and retail sex work remain under brutally-enforced punitive prohibitions. I would say that our economic liberties are subject to the same deep discount as most of our civil liberties, excepting the conspicuous outlier of free-speech rights (and free speech itself arriving at its extensive current protections only in the last 50 years after fits and starts).
Put another way, I would say that the problem is not so much that economic rights fall short of 1st-Amendment standards; it is that economic rights fare as poorly as important 2nd, 4th, 6th and 8th Amendment rights.
Ratko|3.19.10 @ 10:19PM|#
In other words there is no more importance placed on rights than on limits of governmental powers.
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Property rights?|3.20.10 @ 2:07AM|#
Look, trade and profit might be a social necessity for future generations, but it's dirty and shameful and commercial intercourse should only occur in a committed, lifelong relationship between an employer and an employee.
While extremists might suggest that our society's wanton over-commercialization will bring Gaia's wrath upon us in the form of hurricanes and other natural disasters, most of us accept the need for some freedom "in the boardroom". However, we also have to accept that reckless and irresponsible commercial activity is a threat to public health and social order. Consider how much advertising kids are exposed to on TV, on the radio, or even (perhaps especially) online. Parents can try to use ad-blockers or fast-forward past commercials, but it's almost impossible to keep our kids completely innocent of the world of trade. The first amendment exists to protect political speech and set journalists at mainstream newspapers above the law -- it was never intended to protect something as coarse and degrading as commercial speech, and it certainly doesn't give advertisers free reign to expose children to these things.
How many more families will be torn apart before we understand how these so-called "rights"* are destroying our society? How many more teenagers will experience their first job not in a safe, rewarding union position, but in a car (delivering pizza) or awkwardly fumbling around in the storeroom of the Gap? How many kids will consume, heedless of the consequences, and end up with the overwhelming responsibility of a large credit card debt -- and of those, how many will take the easy way out and have a bankruptcy? (Food for thought: studies have shown that getting a bankruptcy can have a negative impact on their ability to have a credit card debt later in life when they are more prepared to take care of it.)
Frankly, some freedoms cost our children -- our future -- too much to be worth protecting. We don't need to buy more cheap shit from China than Chad deems acceptable. We don't need to give deadbeat employers a chance to bail on their faithful employees for an attractive younger worker, just because they're "overpaid", or "incompetent", or because they "slept through their whole shift". We don't need to sacrifice our childrens' chance to see true athleticism in person in Barclays Center (once they become incredibly wealthy), just so they can be forced to grow up in blighted middle class slums. If attaining the society our children deserve means the end of these "rights", then so be it. Will anyone really miss them once they're gone?
* The phrase "right to property" never appears in the Constitution. Did our Founders really intend for us to have such a right, when it obviously did not exist in their day?
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Well, of course, but ice cream has no bones.
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batterie|6.24.10 @ 4:00AM|#
He says Brandeis set a double-standard of judicial restraint: That it should be used when considering economic freedom but should…
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I've never thought about this issue in such a way. just really need time to think.
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That was a 1923 case in which the Supreme Court struck down a law that required employers to pay female employees a certain minimum wage. So, of course, the net effect was that it prevented many women workers from getting a legal guarantee that they would be paid that minimum wage. But I have no other knowledge about what effect it had, so I would ...
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Protecting our first amendment is crucial to America, and all of it's citizens. Freedom of speech, freedom to bare arms, amongst other things. I mean could you imagine in today's day and age not being able to say what you want when you want? I know I can't. I'm a free spirit. I need to voice my opinion. It makes me wonder how business phone systems would work if we didn't have all the rights we have today. I notice a lot of people taking advantage of this, like the tea baggers out in Washington. They look like fools, and have no idea how to run a country. At least not like Louis Brandeis. This man would be ashamed of how the tea baggers are acting. What a pitiful sight they are.
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