The Volokh Conspiracy

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Volokh Conspiracy

Lochner and Child Labor

No U.S. court ever held that child labor laws violate a right to liberty of contract.


The Supreme Court's decision in Epic Systems v. Lewis yesterday, holding that as matter of federal law arbitration agreements take precedent over class action lawsuits, saw many liberals comparing the decision to Lochner v. New York, an infamous 1905 case in which the Court held that the right to "liberty of contract" superceded a state law prohibiting bakers from working more than ten hours a day, sixty hours a week.

Many myths have sprung up over the years about Lochner, and I have tried to dissect these myths in my academic work, most prominently in my book, Rehabilitating Lochner. Some of these myths are complicated. One that is not is the myth that the Supreme Court invalidated child labor laws as a violation of liberty of contract. This myth has roared to life once again in commentary on Epic Systems.

I've blogged about this in the past, but it's obviously worth repeating: In the middle of the so-called Lochner era, the Supreme Court upheld state regulation of child labor by a 9-0 vote (Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913)). I've blogged before that I'm not aware of any court in any American jurisdiction ever holding that child labor laws violate a constitutional right to economic freedom or "liberty of contract", and no one has written in to correct me. For examples of state courts upholding child labor laws within a few years of the Lochner decision, see Ex Parte Weber, 149 Cal. 392 (1906); United Steel Co. v. Yedinak, 87 N.E. 229 (Ind. 1909); Bryan v. Skillman Hardware Co., 76 N.J. 45 (1908); People v. Taylor, 192 N.Y. 398 (1908); State v. Shorey, 86 P. 881 (Ore. 1906)).

All forty-eight states passed child labor laws before 1937, when Lochner was overruled. Liberty of contract concerns were not a barrier to the spread of such legislation. Even constitutional law treatise author Christopher Tiedeman, who took many radically libertarian positions (for his day)–he argued, for example that drug laws and laws banning interracial marriage, upheld 9-0 by the Supreme Court, were unconstitutional–acknowledged that child labor laws were constitutionally valid.

The origins of the myth that the Supreme Court held child labor laws violated liberty of contract lie in the fact that that Supreme Court did invalidate federal child labor laws, not as a violation of liberty of contract, but as beyond Congress' regulatory power under the Commerce Clause. These cases were decided in the midst of what has become known, rather ahistorically, as the "Lochner era." Many commentators have sloppily conflated and continue to conflate the Supreme Court's liberty of contract jurisprudence with its commerce clause jurisprudence, because both took place during this "era." But as the child labor example shows, the Court sometimes upheld certain types of laws as within the states' police power, but held that that the same laws were unconstitutional as beyond the commerce power if imposed nationwide by Congress.

UPDATE: Damon Root explains Epic Systems, and recounts the back and forth between Justices Gorsuch and Ginsburg over Lochner, here. I may have more to say about the back and forth later.