Law

What Amy Coney Barrett Got Wrong About Lochner

Justice Barrett should revisit her views on this wrongly maligned case.

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According to the conventional wisdom, Supreme Court Justice Amy Coney Barrett successfully bobbed and weaved her way through her 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 1905 case Lochner v. New York.

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."

Barrett replied that "in the Lochner era" 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 the New York lawmakers who wanted to limit the number of hours that bakers were allowed to work each day and 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 by Justice Rufus Peckham, the rule was an illegitimate exercise of the state's regulatory powers.

Unlike the rest of the Bakeshop Act, which properly and legitimately regulated "washrooms and closets," the height of ceilings, floor conditions, and "drainage, plumbing, and painting," Peckham wrote, the limit on hours 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." He concluded that the provision also violated liberty of contract, a constitutional right secured against state infringement by the 14th Amendment.

Peckham was correct that the original meaning of the 14th Amendment encompasses the right to economic liberty. As Rep. John Bingham (R–Ohio), the principal author of the amendment's first section, told the House of Representatives, "the provisions of the Constitution guaranteeing rights, privileges, and immunities" include "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 opponents of the 14th Amendment's ratification said as much at the time, which is also good evidence of the amendment's original public meaning. In an 1866 House speech, for example, Rep. Andrew Jackson Rogers (D–N.J.) complained that "all the rights we have under the laws of the country are embraced under the definition of privileges and immunities." He noted that "the right to contract is a privilege," adding, "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 14th Amendment did become the law of the land, as the Court recognized in Lochner. Justice Barrett should revisit her views on this wrongly maligned case.

NEXT: Brickbat: Hale and Hearty

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  2. I know when I want legal analysis I ask some never-Trump TDS riddled idiot.

    “DAMON ROOT”

    Hey there’s one now!

    But seriously, your analysis of Lochner is the kind of thing that would get you kicked out of law school on the first day.

    1. Except he’s right about Lochner.

      Economic rights shouldn’t be second-class rights. That we treat them as such is shameful.

      1. Is that the 802th *Rights* Amendment in the U.S. Constitution? There’s at least 3-Imaginatory Claimed *entitlement* rights listed in this article that really do not exist in the U.S. Constitution.

        The Lochner was exactly the same kind of “Imagined” right by pretending …. ‘without due process of law’ was actually a VOID of State Law. There was a State LAW and Lochner proclaimed *entitlement* to bypass it on some delusional *right* that didn’t exist because the Constitution doesn’t ‘grant’ rights (short of maybe speech) it BLOCKS government; its law over government.

        As much as I believe in economic freedom — It’s just NOT in the U.S. Constitution as a *right* that no State can abridge.

        1. It’s not delusional, right of contract was widely understood. He cites the debate over the passage of the 14th amendment – all parties to that debate conceded that’s exactly what the 14th amendment meant.

          I think you have to go read the 9th amendment again. Just because a right isn’t explicitly in the constitution doesn’t mean it isn’t a right. (Remember, the opposition to the bill of rights said it wasn’t even necessary, not that the named rights weren’t rights). When the 14th amendment incorporated the rights against the states, it incorporated *all* rights, not just the explicitly named ones.

          1. There is no “Congress shall make no law restricting economical contract……….” — And “widely understood” does not mean written.

            If States are bounded by the 9th then the 10th is utterly cancelled. It would make all states enumerated powers EXACTLY the same as the federal government..

            That kind of BROAD reading makes zero sense. State aren’t granted the power to make treaties, national defense, coin money, etc. etc. etc.. And if they’re cancelled by the 9th; they have no power at all because the Supremacy clause would VOID any legislation they make by the same Power given the fed.

  3. Unlike the rest of the Bakeshop Act, which properly and legitimately regulated “washrooms and closets,” the height of ceilings, floor conditions, and “drainage, plumbing, and painting,” Peckham wrote, the limit on hours 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.”

    But regulating the height of ceilings or the paint is legitimate? Moronic.

    You’re a fake Libertarian Root.

    1. Wasn’t he quoting Peckham? I’m not sure those are Root’s views. If they are, of course, you are right and he would be no libertarian.

    2. It’s legitimate because it doesn’t encroach on the right to freely contract, which is/was the point of the case. When a worker signs up for a job, he’s not exactly signing up for the height of ceilings, floor conditions, and paintings. He is, however, signing up for working X number of hours for Y dollars of wage. And the state shouldn’t forbid that. If I want to work 18 hours a week to make more money, then it’s my business; if I don’t, then I don’t sign up for that job. Encroaching on that is encroaching on people’s economic liberties. So Lochner was right, and so is Root.

      1. Taken from the Legal Information Institute of Cornell Law School:

        Justice Harlan, in dissent, asserted that the law was a health regulation, pointing to the abundance of medical testimony tending to show that the life expectancy of bakers was below average, that their capacity to resist diseases was low, and that they were peculiarly prone to suffer irritations of the eyes, lungs, and bronchial passages. He concluded that the very existence of such evidence left the reasonableness of the measure open to discussion and thus within the discretion of the legislature. “The responsibility therefor rests upon the legislators, not upon the courts. No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people’s representatives. . . . [L]egislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably, beyond all question, in violation of the fundamental law of the Constitution.””

        Free market proponents always make an assumption, when talking about a Right to Contract or the exchanges between buyers and sellers, that each side has equal knowledge and ability to negotiate fairly and freely in their own interest. In other words, that they have equal power. That is clearly a naive assumption.

        How many of us would be want to work in a bakery for more than 60 hours a week? Hardly anyone signing on to that as a contract is going to be doing so “freely”. They would be doing so because the pay is too low per hour to live on at 60 hours per week or less and they have no “freedom” to find a better job because there aren’t any available.

        Libertarians make the mistake of thinking that their preferred economic theory (free-market capitalism) is enshrined in the Constitution. Justice Oliver Wendell Holmes Jr. wrote in another dissent in Lockner:

        “But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution. . . . I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”

        1. “Free market proponents always make an assumption, when talking about a Right to Contract or the exchanges between buyers and sellers, that each side has equal knowledge and ability to negotiate fairly and freely in their own interest. In other words, that they have equal power. ”

          No, we assume they have equal rights. Knowledge, ability to negotiate, ‘power’ that doesn’t involve coercion? All that stuff is irrelevant if somebody has the right to do something.

          Basically all you’re saying is, “People who don’t make the choices I think they should, shouldn’t be allowed to make their own choices, because I know better than they do.”

          1. You would have us believe that as long as a worker has the legal right to refuse whatever pay or working conditions that the employer is offering, then all is fine and the government would be violating the Right to Contract if it interfered. Never mind if the worker’s choice isn’t truly free because their practical option is between accepting a shit contract or going hungry.

            The Invisible Hand isn’t a benevolent god making sure that everyone gets a fair deal. If the market is not truly free, the government should be able to step in and even the scales when the majority that gives the government its power recognizes the need. Note how I stated this. It is not I that “knows better”, but the considered judgement of legislators representing the will of a majority. I am just one person that has to convince enough other voters to support what I think. This is how things are supposed to work. Your belief that the government should not be stepping in the middle of contracts absent explicit coercion is a policy choice, not a constitutional requirement, just as Justice Holmes argued.

    3. Yeah, he’s paraphrasing the judge, not expressing his own views.

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  4. You’re really reaching here, going all the way back to 1905 to find a case where the powers of the federal government are restricted. We’ve progressed from the quaint idea that the Constitution spells out certain powers the government is entitled to exercise, we realize now that the opposite is true, that the Constitution sets forth certain prohibitions on the exercise of government power and that therefore where the Constitution is silent the government is entitled to act. To hold otherwise would be to hold that the government has few powers and the citizenry many powers when we all know that people in general cannot be trusted to know what’s for their own good and the less power over their own lives they have, the better for everybody.

    1. Forgot the /sarc notation.

      1. The poster name is the sarc notation. And he’s good at it.

      2. It’s a specialized form of a Turing test.

        Anyone too stupid, or pig ignorant to recognize “… to hold that the government has few powers and the citizenry many powers…” and show it has demonstrated himself to be unworthy of serious consideration.

    2. No, he’s just pointing out ACB’s position, which will serve as a predictor on how she will vote on certain issues. And where she stands on the so-called Lochner era is indicative on her views re: states’ ability to restrict certain economic choices in the name of safety, security, worker rights, etc.

      1. Exactly. Lochner was between a person and a state government. Enumerated powers under the US constitution had nothing to do with it because it wasn’t a federal law that was being challenged. (Of course, the current federal government executed a lot powers that weren’t enumerated to it, but that’s a different issue.)

        1. Enumerated powers might not have anything to do with the balance of power between state government and the individual, but Privileges and Immunities certainly do.

          Or would if the Court hadn’t read them out of the Constitution.

          1. The 14th Amendment was written right after the Civil War in reaction to the Civil Rights Act of 1866 (ending slavery) that DEMOCRAT Andrew Jackson Vetoed but it was over-ridden by a Republican Congress. It’s very purpose was to be sure Democratic Slave States didn’t VOID the freeing of slaves by ‘State’ Powers.

            The “Privileges and Immunities” refers to anything naturalized ‘citizens’ would be considered to have and NOTHING MORE. That’s WHY it’s not an enumerated list.

            People really need to read the ENTIRETY of the 14th instead of cherry-picking sub-text and building their own narrative around it.

            “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

            Thus; it turns out to be (UN-corrupted reading) that NO STATE shall pass a law that the U.S. Federal Government CANNOT legally pass by the BoR Section of the Constitution.

            It also specifically calls out that ‘States’ cannot prosecute *anyone* (immigrants, non-citizens, or tourists) without due process. THUS; is why the Federal is the only Government allowed to do Naturalization and Border Control.

            So unless the U.S. Constitution has a “Congress shall make no law over economic liberty…” in it. The 14th doesn’t apply. The federal government doesn’t have the authority (by enumerated powers) to control the economy; but the State’s aren’t barred from it by the 14th because it’s not in the BoR.

            1. You’re so close, but you’re reading the 9th amendment out of the constitution, and ignoring the debate over the passage of the 14th amendment, and the debate over the bill of rights itself (and whether any rights even needed to be named).

              1. And you’re reading the 10th amendment out of the constitution. Non-enumerated power to be left to the STATE or people. The 9th Amendment doesn’t address the States at all since they contradict each other by your reading it can be reasonably said the the 9th doesn’t apply to the States but instead to the Federal Government.

                Which would make all the sense in the world because the 14th was written AFTER the 9th and 10th.

                1. …and topped of by the fact the 14th address “privileges and Immunities” instead of “rights” in the 9th.

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  7. The Cato institute had an event “rehabilitating lochner Defending Individual Rights against Progressive Reform” its a pretty good speech. And you get more out of it than this article

    1. As with 99% of Reason articles, the only value is to be found in the comments.

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  8. Root you may want to mention the large bakeries already had 8 to 10 hour shifts and the smaller bakeries were exempt, making the whole point of the legislation to get rid of the mid size business that could actually compete with the larger ones. Oh to go back to the days when judges knew what regulatory capture was

    1. Didn’t know that. Yeah, the biggest businesses are rarely the ones to suffer from such regulation, even when it’s aimed at them.

    2. Why would smaller bakeries have longer shifts than larger ones? Perhaps this was a matter of economies of scale rather than regulatory capture. I could have been that a larger bakery could manage its workforce more efficiently with reasonable shifts and keep labor costs down, while a smaller bakery didn’t have as much flexibility in scheduling to manage that, making it less able to compete on labor costs. Is the solution then to allow the smaller bakeries to require its workers to exceed 10 hours a day and/or 60 hours a week in order to keep their jobs? Is it in the public benefit for there to be both large and small bakeries to such an extent that exploiting workers is okay? (I noted in a reply above that Justice Harlan cited medical testimony that there was evidence of harm to bakers working long hours, disputing the characterization of the majority that there was no public health benefit to the law.)

      1. Well, yes, the larger bakeries benefited from economies of scale, what the regulatory capture was about, was preventing the smaller bakeries from finding any way to compensate for that.

        1. Why should smaller bakeries be able to “compensate” for their structural disadvantages in a way that harms their employees? No doubt you’ll come back with something about those employees being “free” to get a different job if they didn’t want longer hours, but you haven’t provided any facts that these employees were on the side of the bakeries here demanding the ability to contract for more than 60 hours a week. Seriously, how often do workers performing manual labor seek those kinds of hours?

          1. In 1905, many people worked every hour they could get paid for. They weren’t the state coddled pussies of 2021…

            1. “In 1905, many people worked every hour they could get paid for. They weren’t the state coddled pussies of 2021…”

              Oh, all people did? Lawyers, doctors, professors, business owners, heirs of the wealthy all worked over 60 hours a week as long as they could get paid to do so? Bullshit. The only people that worked that much were people that were too poor to afford not to work that much. When the choice was between not being able to feed your family and pay your rent and working more than 60 hours a week, then sure, they did what they needed to do. Same when the option was between your children working in the same factory you did to put food on the table as opposed to them going to school. Too bad we are all state coddled pussies, or our kids would be in factories earning a few dollars a day like in 1905.

            2. Just to be clear, I did see that you said “many people”, but that is my point. 1905 was in the middle of the dramatic industrialization of western economies, where inequality was virtually at its peak. The rise of the labor movement and its gains happened precisely because of the excesses of the age and exploitation of workers. “If there’s ever going to be any progress . . . “

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  11. 20th century version: “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.”

    Improved(?) 21st century version: “to contribute by your toil to the support of your fellow men/women/thems/its so they are secure in the enjoyment of the fruits of your toil.”

  12. What difference, at this point, does it make? There will soon be a call to impeach Barrett, due to the circumstances of Literallyhitler nominating her. Then BidenhertimeHarris can nominate a new Supreme who will certainly, in the name of Unity and Democracy,
    uphold individual liberty and free market economics.

    1. Nah, that would require too much effort.

      Easier to add 4-5 new justices to the mix.

      1. Sure the first one will be an uphill grind, but it’s all downhill after that!

        1. So then the next GOP president adds 10-11 new justices to the mix. Exponential growth continues with each election cycle. Eventually the SCOTUS outnumbers Congress. Within a few more generations, more than half the US population sits on the court. Pure Democracy has been achieved.

          1. Certainly the Democratic Party that just successfully used massive election fraud to install their government will conduct nothing but the purest, freest, and fairest elections ever seen in the history of civilization from here on out.

            You people are such a fucking joke.

            “Yeah, but just wait until Trotsky returns from his vacation to Mexico!”

          2. No, the next GOP president never gets to add anybody, because the packed Court allows entrenchment legislation to make sure there never IS a “next GOP president”.

            Remember the Democratic party has never made peace with Citizens United, they even proposed constitutional amendments to gut the 1st amendment in response. With a packed Court, the 1st amendment would simply be interpreted to permit censorship of political speech.

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    2. There won’t be a serious effort to impeach any justice (assuming none have accepted bribes, committed treason, performed human sacrifices, etc.)

      1. assuming none have accepted bribes, committed treason, performed human sacrifices, etc.

        Trump didn’t do any of those things and he’s on his second one. I’m sure Nancy Pelosi appreciates you keeping those red bottoms spic and span though.

      2. No formal impeachment, but there will be plenty of character assassination.

        Some may even be deserved.

    3. Why do you want justices who pledge to uphold a particular economic philosophy?

      I thought they were supposed to do what the constitution said.

      1. The constitution, by adopting a Lockean theory of rights and government, does have a preferred economic philosophy. Sadly, we’ve deviated far from it.

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  16. Restricting states to the same extent as restricting the federal government makes no sense. Otherwise, how are they to be laboratories of democracy?

  17. “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.”

    Well, less some nominal fee to the powers that be. Nominal being a fraction starting at ~1/6 and works its way up to 1/2 or more depending on the governor.

  18. The 14th has nothing to do with it, the solution to Lochner is the 9th.

    1. You need the 14th to incorporate the 9th against the states.

  19. Dunno where Damon Root has been since 1972, but Judge Amy’s job, in the view of Senator Linseed Graham Cracker, is to force Army of God jurisdiction into women’s bodies, 9th, 13th, 14th and 19th Amendments be damned. Oh… and Trump’s hopes of a second term too. Observe how cry-baby sore-loser Trumpistas avoid the subject the way God’s Own Prohibitionists avoided talk of the Satanic legalisation of beer in 1933.

  20. Yeah and it’s perfectly constitutional for Payday Loans Inc., a Subsidiary of Carl’s Jr., to employ child chauffeurs because those children’s parents signed that contract and they barely even cried. Tastes like freedom.

    Protecting human beings from sweatshop conditions is a state interest. Or at least a strong case could be made. You want the constitution to be an economic document. You want it to require your particular philosophy, bunch of nonsense on stilts though it may be, and force economic policy out of the hands of the people and into the hands of essentially the Koch brother.

    What an amazing coincidence that the correct economic policy that should be placed above democratic concerns happens to be exactly the economic policies favored by the billionaire backer of this magazine and laissez-faire economic causes everywhere.

    And all it takes is a little judicial activism and voila the people can no longer use politics to decide whether there should be any minimum standards on the conditions for how they spend most of their waking lives.

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