Supreme Court

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.

NEXT: Government-Subsidized Job Creation Preservation Elimination in Massachusetts

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    1. How sad is it that the documentary bot got the first comment?

    2. Why the emphasis on ‘site’, bot?

    3. Has anyone noticed that after the words “United States” on the census form there is a trademark? WTF is up with that?

      1. Has anyone noticed that after the words “United States” on the census form there is a trademark? WTF is up with that? how to give blowjob

  2. Root v Lochner MCCLXXVII!
    This time it’s personal!

  3. Even better for us Con Law nuts:

    The first lawsuit challenging the Constitutionality of the Slaughter Rule is teed up. Go here:

    1. Man, maybe everything really will grind to a complete and utter halt! That would so rule.

  4. Has anyone noticed that after the words “United States” on the census form there is a trademark? WTF is up with that?

    1. Well, we don’t want ANOTHER country saying that they’re the United States, do we?

      I didn’t think so!

      1. Tomcat – we’re already being ripped off!

        Someone needs to ask ToughQuestions!

        1. In the good-news-from-Africa thread the other day, I almost said how nice it would be for there to be a United States of Africa. Then I thought about what that would mean for our branding and said, “African Union” instead.

          1. Technically wouldnt we be a Structure of States as opposed to a Union or Enum? I mean different types right? All States are not the same so I think I would call us Stucture of the States of America. OR we can even be an Object…that would interesting.

            I see I am no longer needed here!

        2. That’s TOTALLY different. For example, that’s in spanish. That’s like, a whole other language, so that makes it completely different.

    2. I found out what it’s about. The census is being carried out by a private company, IBM-Germany. You know the company that carried out the census for the Nazis that helped them locate all the Jews and other undesirables.

  5. My understanding is a lot of case law comes from this tactic. I’ve read that entrepeneurial case laywers will send in say, a ‘disabled victim’ to stay in a given hotel and start measuring doorways and looking for infractions. When they find one, a lawsuit is filed.

    These cases have nothing to do with damaged or harm suffered by anyone, but merely use the codes to wring a verdict out of a jury and get an award.

    This is why some districts changed their ‘code violation’ rules so that if an infraction is found, you can’t immediately be hauled into court. The proprieter has 30 days to correct the violation.

  6. Specter says White House officials, Sestak may have committed felony

    [Arlen] Specter is a guest on a WSBA-radio show in York, Pennsylvania [March 12, 2010]. Since the show is in York, and not on national radio or television, Specter’s answer goes virtually unnoticed. Asked about the topic, he says this, as noted above:

    “There’s a crime called misprision of a felony. Misprision of a felony is when you don’t report a crime. So you’re getting into pretty deep areas here in these considerations.”

    In a blink, Specter has raised the stakes here.

    What we are now talking about is the potential for a significant unraveling of the Obama White House even as their biggest domestic agenda item, health care, sucks in most of the media oxygen.

    If in fact Sestak is telling the truth, if in fact the Denver Post story about Andrew Romanoff is correct ? and neither Sestak nor Romanoff reported these offers to federal authorities ? Specter is saying both could in fact do jail time for committing a felony.

    ? September 27, 2009 — The Denver Post reports that Obama White House Deputy Chief of Staff Jim Messina allegedly offered a job in the Obama administration to ex-Colorado House Speaker Andrew Romanoff if Romanoff dropped his planned primary challenge to incumbent U.S. Senator Michael Bennet. Romanoff refuses comment and runs anyway.

    ? February 18, 2010 — Philadelphia TV anchor Larry Kane reports that on his just taped Comcast show, he had asked Democratic Congressman Joe Sestak, who is challenging incumbent Senator Arlen Specter whether it was true that the Obama administration had offered Sestak a job if he would withdraw from his primary challenge to Specter. Sestak answers “yes,” specifically saying the offer came from someone in the White House and that he, Sestak, turned down the offer. Sestak refuses to name who it was that made the offer. Two hours later, Kane calls the White House, plays them the tape, and asks for comment. The White House never calls him back.…..z0iTJp8J1Q

    1. Please stop doing this. These threads aren’t your personal playthings. Stop trying to threadjack every conversation around here. It’s getting really annoying.

      1. Exaggerate much? Everyone from Johnny Longtorso to SugarFree to Warty posts links here. Don’t like it? Too bad.

        1. You are barging into these threads with lengthy, half-plagiarized treatises on topics that have nothing to do with the subject at hand. You’re breaching well-established web etiquette.

          You’re treating these boards like they’re your personal wire service, the place for you to dump all the crap you want to get out there. Get your own blog for that. This one isn’t yours.

        2. Yes, but yours I never read, since you plagiarize most of the article and write way too much. Have you noticed that almost no one every responds to your posts, except to tell you to stop?

          Don’t like people complaining about your posting habits? Too bad.

          1. I don’t read them either, but technically, if there’s a link, is it really plagiarism? Did Damon W. Root plagiarize David Bernstein above?

            1. Except that this guy isn’t directly excerpting the stuff he links. He takes pieces of it and weaves it into his own writing. It’s cheap, deceptive and disingenuous.

              The long and short of it is the guy doesn’t understand how the web is supposed to work.

        3. Yes, but I don’t post a page of commentary with my metal links. Speaking of which

        4. Yeah but there is a difference. Warty and Sugarfree either inform or entertain me. You don’t.

      2. I don’t see a problem with it. It would be less out of place in the morning links, however.

  7. ‘it’s no secret at this point that Lochner’s attorneys were paid by the New York Master Bakers Association . . .’

    That explains the police testimony in the Lochner trial:

    ‘I was watching Lochner’s bakery, and that employee was master baking in there for over ten hours! It’s illegal to spend so much time master baking, so I had him arrested. ‘

    1. That much baking can make you go blind and give your hairy palms.

      Or so I hear.

      1. If they pass a law against master baking, they’ll have to pry me from my cold, dead fingers…

  8. The New York Master Baters Association? Geesh, everybody has a trade group.

    1. Their new spokesman is Elliot Spitzer.

  9. SRSLY? 25 comments and no one has wasted space with this:

    the New York Master Bakers Association

    Dr. Sugarfree, paging Dr. Sugarfree

    1. Okay, I need to start reading these comments more closely.

  10. The servant wakes while the master bakes…

  11. the New York Master Bakers Association

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