Justice Oliver Wendell Holmes Jr., Individual Liberty, and the Constitution
The latest issue of The Objective Standard features a long and very interesting article by Thomas Bowden examining the jurisprudence of Supreme Court Justice Oliver Wendell Holmes Jr. In particular, Bowden focuses on Holmes' famous dissent in Lochner v. New York, the 1905 case where the Supreme Court nullified the maximum working hours provision of New York's Bakeshop Act as a violation of liberty of contract. As Justice Rufus Peckham held for the Court, the "real object" of New York's ban on bakery employees working more than 10 hours per day or 60 hours per week was "simply to regulate the hours of labor…in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee." While genuine health and safety regulations are constitutionally permissible, Peckham wrote, the hours provision of the Bakeshop Act "is not, within any fair meaning of the term, a health law."
In dissent, Holmes took a different view, arguing that what mattered was the majority's unfettered ability to impose its will through law, not the judicial protection of individual rights. "I think that the word 'liberty' in the 14th Amendment," he explained, "is perverted when it is held to prevent the natural outcome of a dominant opinion, unless…the statute proposed would violate fundamental principles as they have been understood by the traditions of our people and our law." Sneering at the idea that the Constitution protects individual economic liberty, Holmes maintained, "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," a reference to the English libertarian theorist and his most celebrated book.
But as Bowden points out in his article, the Constitution is on the individual's side:
In order to mock "liberty of contract" as nothing more than a reflection of the majority's tastes in popular reading, Holmes had to evade large swaths of evidence tending to show that the Constitution indeed embodies a substantive commitment to individual liberty. In the Declaration of Independence, the Founders clearly stated their intent to create a government with a single purpose—the protection of individual rights to life, liberty, and the pursuit of happiness. Consistent with the Constitution's Preamble, which declares a desire to "secure the blessings of liberty to ourselves and our posterity," every clause in the Bill of Rights imposes a strict limit on government's power over individual liberty and property. In addition, Article I forbids the states to pass any law "impairing the obligation of contracts." And to prevent future generations from interpreting such clauses as an exhaustive list, the Ninth Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
It's also worth noting that the mainstream version of the Lochner story, which pits evil bosses against long-suffering workers, doesn't exactly match the historical evidence. As George Mason University law professor David Bernstein has carefully and exhaustively documented, the origins of the Bakeshop Act lie in part in an economic conflict between unionized bakers who labored in large shops and their non-unionized, mostly immigrant competitors who worked in small, old-fashioned bakeries. As Bernstein wrote in the Washington University Law Quarterly (footnotes removed):
Union bakers believed that competition from basement bakery workers drove down their wages. An article in the bakers' union's weekly newspaper, the Bakers' Journal, condemned "the cheap labor of the green hand [a euphemism for recent immigrants] from foreign shores" that, along with long hours and competition from underpaid apprentices, "has driven countless numbers of journeymen [bakers] into other walks of life, into the streets, the hospitals, alms houses, insane asylums, penitentiaries and finally death through poverty and desperation." A ten-hour day law would not only aid those unionized bakers who had not successfully demanded their hours be reduced, but would also help reduce competition from nonunionized workers.