Constitutional History

Here's something for you "Constitution nuts" to enjoy. George Mason University law professor David Bernstein, the author of several superb law review articles on the Supreme Court case Lochner v. New York (1905) and the author of the forthcoming book Rehabilitating Lochner, reveals some fascinating new evidence he's discovered about the landmark economic liberty case:

Many of the most important cases in American constitutional law have not involved true cases or controversies. Instead, they involved individuals or organizations who intentionally set up a test case to challenge a law they disliked. Prominent examples include Plessy v. Ferguson and Griswold v. Connecticut.

I think we can add Lochner v. New York to that list. Joseph Lochner was accused in early 1902 of allowing baker Aman (sometimes referred to in newspaper reports as Amand or Armand) Schmitter to work more than ten hours in one day in Lochner's bakery. Various sources, including one as early as 1905, state that Schmitter stayed late voluntarily to learn cake-making, but I've been unable to discover the source of this detail.

It's obvious that Lochner eventually became a test case. Lochner presented no evidence to challenge the prosecution, and instead allowed himself to be convicted so he could appeal. And it's no secret at this point that Lochner's attorneys were paid by the New York Master Bakers Association, which had resolved to challenged the hours law.

But did the case start out as a test case, or just develop into one?

Read the whole thing here. I discuss Lochner's critics on the left and the right here.