Supreme Court

Amy Coney Barrett on Lochner and the 14th Amendment

The Supreme Court nominee weighs in on a famous case.


According to the conventional wisdom, Supreme Court nominee Amy Coney Barrett successfully bobbed and weaved her way through her recent Senate confirmation hearings without really sharing any of her substantive legal views. But Barrett did disclose one big thing: She thinks the Supreme Court got it wrong when it protected the constitutional right to economic liberty in the famous case of Lochner v. New York (1905).

On October 14, Sen. Josh Hawley (R–Mo.) asked Barrett to "talk just a little bit about how a court could substitute its own views on economic policy for those of a law-enacting body, of a legislature or of Congress."

"In the Lochner era," Barrett replied, and "in Lochner itself," the Supreme Court "was standing in the way of reforms for workers that legislatures were enacting." Say a federal judge "had a preference for free trade, or if one had a preference for having no minimum wage," she said. "To hold such a statute that did the opposite of your policy preference unconstitutional because it didn't comport with your idea of the best economic policy would be to thwart the will of the people without warrant in the Constitution."

Is that what happened in Lochner? Did the Supreme Court "thwart the will of the people without warrant in the Constitution"?

The Court did thwart those New York lawmakers who wanted to limit the number of hours that bakers were allowed to work each week. But since "clean and wholesome bread does not depend on whether the baker works but ten hours per day or only sixty hours a week," observed the majority opinion of Justice Rufus Peckham, the working hours regulation deserved to be struck down as an illegitimate exercise of the state's regulatory powers.

Unlike the rest of the Bakeshop Act, Peckham explained, which properly and legitimately regulated "washrooms and closets," the height of ceilings, floor conditions, and "drainage, plumbing, and painting," the hours limit involved "neither the safety, the morals, nor the welfare, of the public" and was thus "not, within any fair meaning of the term, a health law." What is more, Peckham held, the provision violated liberty of contract, a constitutional right secured against state infringement by the 14th Amendment.

Peckham was correct about that. The original meaning of the 14th Amendment includes the right to economic liberty. As Rep. John Bingham (R–Ohio), the principal author of Section One of the 14th Amendment, told the House of Representatives, "the provisions of the Constitution guaranteeing rights, privileges, and immunities" includes "the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil."

Even those who opposed the 14th Amendment's ratification said as much at the time—which is also good evidence of the amendment's original public meaning. For example, Rep. Andrew Jackson Rogers (D–N.J.) complained to the House in 1866 that "all the rights we have under the laws of the country are embraced under the definition of privileges and immunities….The right to contract is a privilege….I hold if that ever becomes a part of the fundamental law of the land it will prevent any State from refusing to allow anything to anybody embraced under this term of privileges and immunities." The "right to contract" was of course at the center of Lochner.

Despite what Barrett told Hawley, Lochner does in fact have a warrant in the Constitution.

Related: "Lochner Isn't a Dirty Word."

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  1. Am I wrong to see her view as another limit on the power of government to regulate however it sees fit? As I am writing this Schumer et al are on the Capitol steps decrying as much. Apparently such limits are somehow “undermining democracy.”

    1. Can’t let pesky limitations on government get in the way of The Will Of The People.

      1. As far as I can gather; The case deceitfully used the U.S. Constitution on State Legislation. If that be the case; Barrett was spot-on in her explanation. The U.S. Constitution isn’t an ‘personal entitlement’ piece. It’s the Supreme Law over the U.S. Government.

        1. The 14th amendment incorporated many of the restrictions on government action against the states. So while the original 1789 constitution only applies to the US government, the 14th amendment *modified* that document and changed the breadth of protection for individual citizens.

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          2. Note – there still isn’t any ‘economic liberty’ statement even in the U.S. Constitution and throwing it under “other” of the IX amendment doesn’t hold enough water on a Constitutional basis of the judicial department’s action to over-ride legislation.

            1. Also note that; that particular section of the 14th carries no more water than the Supremacy Clause.

              1. Oh, you’re right; It does put the BoR “privileges and immunities” over State Laws also. Okay; I see it now. But in this particular case; I still don’t see “Congress shall make no law…. abridging economic liberty/freedom”.

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  2. This guy, or a brand new justice of the supreme court. Which opinion would you trust. I’ll take hers.

    ps Joe Biden is a crook.

    1. I would trust both similarly as there is still significant disagreement about this among people who appear to genuinely respect the Constitution.

      1. I’m still trying to figure out what in the world this even has to do with the 14th Amendment. ‘Privileges and Immunities’ of citizens of the United States doesn’t contain the right to an UN-regulated state. Where in the world does this even remotely come together?

        1. So much of what the Supreme Court has gotten into in recent decades is all dependent on the 14th amendment, especially the term “due process” which justices have successfully redefined to mean whatever they want it to mean. The sad thing about it is seeing people who think of themselves as constitutionalists, and even originalists textualists, completely embrace this doctrine of incorporation as an unquestionable fact. Many libertarians have the tendency to insert their political views into their method of jurisprudence to ensure ideology at the expense of legal integrity. Jacob Sullum is especially bad for this.

  3. Has ENB or any of the other feminists for liberty called out ACB as a gender-traitor yet? I mean publicly, silence is violence.

    1. As an #AbortionAboveAll libertarian, it’s no mystery how ENB feels about Barrett.


      1. Roe is totally fucked up from a legal perspective. It won’t survive scrutiny. That’s why people want to call it a super-precedent to avoid it from getting the scrutiny it deserves.

        1. It was horribly decided. “Penumbras” aren’t a great way to decide cases. However, one could of come at the decision from, possibly, a 9th and 14th Amendment logic. But, yes, it seems that the 10th Amendment is the more relevant, meaning that the Court should have decided that it was not a federal issue, but rather one delegated to the States.

          1. The Ninth is a pretty good argument. I’d say Heller also partially depended on the Ninth, in that case having a right to self-defense.

            1. Justice Goldberg in his Griswold concurrence, used the 9th, rather than “penumbras and emanations,” to protect a married couple’s freedom to obtain and use contraceptive aids. Extending that to abortion would not be strange. It wasn’t the majority opinion, though.

      2. Did you two just cross the streams?

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  4. I don’t know much about this “Lochner” business. But unlike Amy Barrett, I’m familiar with the DYING WISH PRINCIPLE. According to the DYING WISH PRINCIPLE, when a Supreme Court Justice passes away in her mid or late 80s, a replacement must not be named until the next (Democratic) Presidential term.

    Barrett’s ignorance of the DYING WISH PRINCIPLE means she’s totally unqualified for our nation’s highest court.

    Also, she literally wants to turn this country into The Handmaid’s Tale.


    1. You are also very familiar with the MAKING SHIT UP AS YOU GO ALONG PRINCIPLE.

      1. Gozer, OBL is a parody account. Admittedly, some days are better than others. For this one… I recommend that you get your sarcasm detector recalibrated. Even I got it and I’m pretty sarcasm-impaired.

        1. So you missed my sarcasm?

          1. A sarcastic reply to sarcasm? Yeah, that’s at least one and probably two levels too deep for me.

            Seriously, sarcasm is often hard to read when you have the full advantage of tone of voice and facial expression. It really doesn’t communicate well through text and I’d be a lot happier if we could all agree to dispense with it. At least until we all agree on a specific sarcasm font.

            1. Poe’s Law; most people can’t tell the difference any more; and that’s not because sarcasm has changed.

              1. Yeah, right! [/sarc]
                Use a tag.

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  6. Keep beating that privileges and/or immunities drum. Someday somebody might dance to the beat.

    Personally, I agree. The whole incorporation bit is just a judicial slow roll when it was right there all along.

    1. Yup. Every US citizen has the federal rights and protections as a minimum in any state that they live in. States can grant extra rights and protections but cannot strip away the federal minimum.

      1. You have that backwards. The US Constitution does not grant or (with a few exceptions) even recognize rights to citizens. The federal Constitution defines the specific powers granted to the federal government. It also put a few boundaries around the state governments but until the 14th Amendment, not very many. The Founders assumed that state governments would be defined by and limited to whatever is in their respective state Constitution.

        So for example, the First Amendment says “Congress shall make no law…” Nothing in the US Constitution prevented Delaware from passing a law abridging freedom of speech. Plaintiffs had to go to Article 1, Sec 5 of the Delaware constitution to make that argument. But nothing compelled Delaware to have that particular section in their constitution.

        1. You don’t get to ac like Amendments 13, 14 and 15 weren’t passed. The amended> Constitution is what we live under. Good luck overturning “incorporation.”

          1. This. Rossami, your tense is wrong. The US Constitution *did not* (in 1789) recognize general rights of citizens (with exceptions – some of the bill of rights are definitely categorical rights that should always have applied against the states), but it *does now*..

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  8. “In the Lochner era,” Barrett replied, and “in Lochner itself,” the Supreme Court “was standing in the way of reforms for workers that legislatures were enacting.”

    This is troubling. Hope we didn’t just get another Roberts.

    1. There is no chance of that. ABC is as Scalia/Thomas as it comes.

    2. Me thinks we did get Robert’s again

      1. Why?

      2. Or Bork? Who didn’t agree with what the BoR plainly stated (on the 9th Amendment, Bork comments “it’s not like they wrote a list of rights, but there was an ink spill in the middle and we were supposed to fill in the missing part ” (or words to that sense). But of course, that is EXACTLY what the 9th does, it says, “just because we didn’t list it doesn’t mean that it isn’t a right”. [Note to progies everywhere, these are *negative* rights, i.e. things that the state can not prohibit, not *positive* rights (things that the state must do or provide).]

  9. If baker’s assistants are working 60 hours a week and falling into ovens from exhaustion, then that seems like a different scenario than if the Baker’s guild is restricting competition.

    Is it a violation of the 14th amendment to restrict how many hours a day that a pilot can fly or a trucker can drive?

    1. Were workers falling into ovens?

      1. No but the straw bakers were.

    2. Truckers are falling into disability from the daily hour limit increase from 12 to 14 hours a day. Good thing they didn’t do that for airline pilots.

      1. The trucker hours of driving limit is still 11 hours. “The 14 hour limit dictates the maximum length for your “work day.” This means that you have a 14 hour window in which you may drive up to 11 hours, but only after you’ve been off for a minimum of 10 consecutive hours. Once the 14 hours is up, regardless of whether or not you’ve driven for 11 hours, you are required to rest for 10 or more hours before you’re allowed to drive again.It’s important to note that the 14 hours begins once you begin any kind of work, not just driving.” ‘Dems da rules.

    3. If it is in interstate commerce, Federal pre-emption would apply.

  10. It’s a truism that hard cases make bad law. In other words, can justice for a specific case lead to a harmful precedent?

    Is this the opposite example, where a precedent for freedom of contract was built on the wrong specifics?

    I’ll leave the proof as an exercise for the student. 🙂

  11. Thinking further, if a minimum wage doesn’t violate the 14th, then neither would a cap on hours.

    1. A State minimum wage; The U.S. has no delegated power for it.
      How are these stances even getting thrown into the 14th?

      1. Incorporation, and the runaway Commerce clause.

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  13. The view that Barrett expressed is the exact same view put forth by John Roberts when he was being confirmed. It’s a standard belief among jurists and, as Root pointed out, that view is wrong. There is most definitely warrant in the Constitution for protecting economic rights.

      1. the Ninth Amendment!!!!!!!

        1. Stop asking the same question!!!!!!!!

          1. You’re not going to convince me that “others” mean economic liberty in a legal context. I guess I ask because if all this debate is over the meaning of “others” (coincidentally out-of-time/purpose scope too) to the 14th – I call B.S.

  14. Two articles on the 1905 Lochner on the front page, 8 days away from a Presidential election. Never let it be said that Reason doesn’t have its finger on the pulse of what people are really excited about here in 2020.

    1. Imagine what the Neilsen ratings are for your comment!

      1. Or your reply to my comment! I imagine they’re going down each time and we’re the only 2 left.

  15. Hours worked does impact on public health if the products or services impacted by the work are sold to the public.

    I.E. I think exhausted interns diagnosing illness are more likely to endanger their patients. Exhausted bakers are more likely to contaminate the food. Exhausted meat inspectors are more likely to miss salmonella poisoning. Exhausted manicurists are more likely to stab you in the cuticles. Exhausted truck drivers are much more likely to slam into your car.

    1. Then address that directly. Exhausted interns, pilots and train drivers are equally dangerous whether they became exhausted through overwork or taking night classes or just partying too hard.

      Or admit that you are several layers too far removed from any serious “public health” issue and let markets and lawsuits punish employers who harm customers through through failure to supervise.

    2. And exhausted straw men will stuff your scarecrow.

  16. I am not sure Barrett’s quote expresses agreement that Lochner was wrongly decided, or expressed the characterization that it was wrongly decided as a way to dance around the issue. It is an article of faith that Lochner stood in the way of New Deal experimentation. That question was something of a landmine.

    1. “That question was something of a landmine.” which was its point, of course. But why was is asked by someone supposedly on her side?

  17. I’ll stipulate that Root is right and Barrett is wrong on Lochner. And the probability of a judge who supports restoring Lochner getting confirmed to a spot on the SCOTUS hovers around precisely zero. This is tilting at windmills if I ever saw it.

  18. She probably disagrees with Incorporation entirely for all rights, but she’ll go along with it because at this point it’s “a super precedent”.

    I think she could turn out to be very deferential to government power, the opposite of what Democrats think.

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  20. It’s sad that the overwhelming majority of those #DATS & #CluelessConservatives are so grateful to have a supreme court that believes corporations are people and that THESE people have precedent over actual humans.

    1. Man, it must be fall…straw men abound…

      1. Not even…. “THESE people have precedent” ??? WTF does that mean? Perhaps these people have power or authority, but precedent?

  21. Okay, selectively quoting one sentence from John Bingham of all people does not cut it. The man was a confused mess who contradicted himself repeatedly and apparently had no clue what he was drafting. Oh, and I did say “drafting” for a reason because what became section one was not Bingham’s draft but a significanly revised and edited version of Bingham’s draft. So yeah, even if you think the 14th amendment was legitamently ratified, the Supreme Court waited to invent the incorporation doctrine and throw the tenth amendment in the trash can for another 50 years because they did not hold to the mistaken understanding that “due process” has some mystical, almost indefinable meaning that changes with the times and is supposed to reflect the majority’s view of, to quote Samuel Alito, “the American scheme of ordered liberty.”

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