IF DRED SCOTT gave its name to the most reviled case in the nineteenth century, then Lochner v. New York holds that dubious title for the first half of the twentieth century. For years Lochner stood as a code word for conservative activism by a judiciary out of touch with the realities of modern industrial life. Although there have been recent efforts to rehabilitate the jurisprudence of the majority opinion, for more than seven decades the case stood as the symbol of a reactionary court opposing progressive reform.
The industrialization of the United States in the decades after the Civil War brought great prosperity to the nation, but it also opened up a Pandora’s box of social ills and economic disparities unknown in an earlier and mostly agrarian country. Railroads now crisscrossed the country and, with innovations such as the refrigerated car, opened up eastern markets to midwestern and southern farmers, making it possible to enjoy fresh fruit, vegetables, and meat on a regular basis in the nation’s cities. Steel, a key element in building factories, railroads, ships, and machinery, dropped in price from $100 a ton in the mid-1870s to $12 a ton by 1890. The discovery of great quantities of coal made steam power inexpensive, and by 1900, 80 percent of the nation’s factories relied on coal and steam rather than the older water power. Inventors like Thomas Edison not only developed new industries, such as the generation and distribution of electrical power, but also created products to be used in the home both to save labor and for recreation, such as sewing machines.
To operate these huge factories and mills entrepreneurs needed workers, and these came from both internal and external migration. Hundreds of thousands of men and women left American farms to work in factories, while millions of immigrants from Europe came to the United States seeking better lives and opportunities. Small cities grew large, while new cities such as Pittsburgh seemed to appear almost overnight. A nation of farms was becoming a nation of cities, a “smokestack America.”
The growth and prosperity did not come without a human price. Working in mines, mills, and factories was often dangerous. Owners hired women and children, some as young as six, not only because of their nimbler fingers but also because they worked for lower wages than men. In many industries workers toiled ten or more hours a day, six or seven days a week; in the steel industry, for example, a twelve-hour day remained the norm until after World War I. The sick or injured simply lost their jobs, and if they had no resources of their own relied on family, friends, neighbors, or local charities to survive. A network of laws protected owners not only from efforts by workers to unionize, but even from paying damages to laborers hurt on the job. While life certainly improved for those in the middle and upper classes, it did so on the backs of laboring men, women, and children who seemingly had no voice in either society or politics.
The era of reform we call Progressivism arose in response to the evils that industrialization spawned. In one area in particular, “protective legislation,” reformers tried to secure laws, mostly at the state level, to do away with child labor, limit the number of hours a person could work each day, establish safety standards in the workplace, set minimum wages, and create a safety net of employer liability and workmen’s compensation to help those injured on the job. Although successful in a number of areas, the final accomplishment of many of these goals would not come until the New Deal in the 1930s. In the early part of the century reformers not only had to work to get their programs enacted by state legislatures, but they had to fight to secure judicial approval as well. In the courts the story of Lochner, and of all protective legislation, is a battle between conservative advocates of substantive due process and freedom of contract and reform proponents of the police power.
The due process clause of the Fourteenth Amendment, according to leading legal thinkers such as Judge Thomas Cooley of Michigan, dealt not only with procedural methods, but also had a substantive aspect that served to protect vested rights in property and prevent the government from any sort of regulation of the market, the workplace, or the labor contract between employer and employee. Another law writer, Christopher Tiedeman of Missouri, noted that the “power of constitutional limitations protects private rights against the radical experimentation of social reformers.”
Many courts took this advice seriously. One judge noted disapprovingly the “sentiment favorable to paternalism in matters of legislation,” while Judge Robert Earl, speaking for a unanimous New York Court of Appeals in In re Jacobs (1885), attacked a state law prohibiting the manufacture of cigars in tenements as trammeling “the application of [the worker’s] industry and the disposition of his labor, and thus . . . it deprives him of his property and some portion of his personal liberty.” A Georgia judge declared that he knew “of no right more precious, and one which laboring men ought to guard with more vigilance, than the right to fix by contract the terms upon which their labor shall be engaged.”
Progressives and conservatives alike recognized that as part of its sovereign powers, a state could control both individual and property rights to preserve the health, safety, and welfare of the people. But while conservatives conceded the existence of this authority, they claimed it had very limited applicability. Progressives, on the other hand, saw the power as far more extensive, allowing the state to intervene actively on behalf of the oppressed and exploited. The police power, declared Oliver Wendell Holmes in Noble State Bank v. Haskell (1911), “may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality, or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.” Under this expansive reading, the police power could reach almost anything the legislature wished to regulate.
In the police power lay the key to constitutional approval or denial of protective legislation. If courts took a narrow view of the police power, reform measures would face tough sledding; when judges adopted a more liberal interpretation, protective legislation would receive a sympathetic hearing. Merely declaring that certain policies promoted the public good did not by itself bring a statute within the sanction of the police power. The law had to relate specifically and directly to a clearly recognized health or safety objective. Some courts also demanded that the law be “reasonable” as well. Not only did there have to be a threat to the public welfare, but the response by the legislature had to appear appropriate in the eyes of the court. This, of course, meant that conservative judges who did not like any interference in the market could always find a reason to condemn legislation as unreasonable.
In recent years scholars have been revising the picture that progressives painted of a reactionary bench blocking progress. Although one can certainly find cases in which judges struck down protective legislation and invoked the sacred doctrines of freedom of contract and due process, a closer look discloses a different pattern. Common law—that is, judge-made law as opposed to statutes—typically operates after the fact, responding to rather than anticipating new situations and institutions. As society underwent significant changes in the latter nineteenth century, all agencies of government had to deal with these new facts. Even if judges had been prescient, it is unlikely that they would have rushed to approve a wide spectrum of innovative laws, especially since many proposals ran counter to long-established common law principles.
By 1905 a pattern had emerged. Initially, state courts typically reacted negatively to much protective legislation, but then grew accustomed to the idea and began approving it. They had no trouble with child labor laws for the simple reason that for centuries the law had seen minors as special wards of the state, which in its role as parens patriae—that is, of sovereign and guardian of children and other disadvantaged persons—could act to protect them. As the public view of child labor as a preventable evil gained public acceptance in the latter nineteenth century, state legislatures responded with a variety of laws mandating school attendance to a certain age or barring children from working in factories, and courts invariably approved them. Similarly, early efforts to establish maximum hours for people working in dangerous environments, such as mining, or for women, also met with judicial approval. But these groups—children, women, and men in dangerous occupations—all fit into classical legal categories of persons under a disability—that is, legally unequal in some respects—and therefore likely to need the protection of the state.
But what about men who were not in dangerous trades? Could the state limit the hours they worked? That is the question the courts asked in Lochner.
Baking was a growth industry in the second half of the nineteenth century. Prior to the Civil War most baking was done in the home, but industrialization drew many women to work in factories, and as fewer found the time to bake at home they turned to local bakeries for their bread. Urbanization contributed to this trend, since tenements usually had no ovens. Even in those apartments with ovens, the cramped conditions with two or more families often sharing quarters made home baking impossible. The number of wage earners in the baking industry went from fewer than 7,000 in 1850 to more than 60,000 in 1900, a rate of increase almost twice that of manufacturing in general. Because a majority of Americans still lived on farms or in small villages, home baking probably still accounted for three-fourths of the bread eaten in the United States; in cities like New York and Chicago, however, most bread came from bakeries.
At the beginning of the twentieth century commercial baking had two major divisions. One was known as the cracker industry, and supplied hardbread, crackers, and hardtack—nonperishable breadstuffs for ocean voyages and overland trips. Like many other industries, smaller firms began to merge with one another, and after a series of price wars culminated in the creation of the National Biscuit Company (Nabisco) in 1898, which controlled 70 percent of the cracker business.
Joseph Lochner was not part of the cracker trade. He owned Lochner’s Home Bakery in Utica, New York, a business similar to hundreds of other small bakeries around the country that baked fresh bread and pastries to service a very localized clientele, the neighborhoods in which they were located. Most were very small, and three-fourths of them employed four or fewer people. Most of the owners of these shops were called master bakers, or “boss bakers,” in that they had served terms as apprentices or journeymen to other bakers before striking out on their own. It took little capital to start up a bakery, and in many ways baking resembled the garment trades, with boss bakers serving as jobbers and hiring itinerant laborers.
Although there had been some inventions such as a mechanical mixer in 1880 and a molding machine in 1905, bread baking, unlike cracker-making, remained highly labor intensive. One study found that in 1899 only one bakery in ten used power machinery. A boss baker essentially needed only an oven and a place to put it. Since profit margins were low and, lacking any form of mass production, few opportunities existed to improve efficiency, about the only costs over which the boss baker had any sort of control were the wages he paid, how many hours he could work his men, and the rent he paid for his workspace. In cities, the cheapest places available were usually the cellars of the tenements. Since they could not normally be rented out for residence, cellars were often unused, and building owners eagerly accepted the additional income from the bakers. The majority of New York bakers—about 87 percent as late as 1912—worked out of tenement house cellars.
From the bakers’ view, the rent was cheap and the floors, whether of wood, dirt, or occasionally concrete, were sturdy enough to support the weight of an oven. These spaces, however, had never been intended for commercial use—in fact, they had not been designed for any use other than storage. Whatever sanitary facilities the tenements had—sinks, baths, and toilets—all drained down to a sewer pipe in the cellar. In the 1880s, when many of the tenements had been constructed, the drain pipes had been made of clay and brick, and even the more modern iron pipes leaked and smelled foul, especially in the heat generated by the baking ovens. In the cellar bakeries the sewer pipes were often encased in wood and used for benches, storage, or even cooling racks for the loaves.
One could hardly imagine a worse place in which to prepare food, or even in which to work. The cellar floors were often damp, either from leaky sewers or rain seepage; dirt walls were the norm, and ceilings usually low. A factory inspector in 1895 reported that ceilings in cellar bakeries ran from a high of eight feet to as low as five and a half feet, a height in which most men would have to stoop to work. There were few windows, so even in daytime little light came in, and ventilation might often be no more than horizontal grates on the outside sidewalk. In the summer workers suffered intense heat, and in winter even the heat of the oven could not keep the place warm. The lack of ventilation also meant that flour dust and fumes, natural in any baking, could not escape. The cellar bakery in 1900 bore no resemblance to the modern bakeshop, with its light, airy workspace and clean, stainless-steel implements, or even to Grandma’s kitchen. Everyone who visited these workplaces agreed that they were filthy and that the bread they produced posed a health hazard to consumers.
Working long hours in this environment could not have been beneficial to the health of the workers, either, and work long hours they did, much of it at night. A factory inspector reported that in one bakeshop he had visited the men worked 15 hours a day six days each week, and 24 hours on Thursdays, for a weekly total of 114 hours. (Bakeries in primarily Jewish neighborhoods would have been closed from sundown on Friday to sundown on Saturday.) New York bakers had gone on strike in 1881, and one of their demands was for a 12-hour day, meaning they would not have to work more than 72 or 84 hours a week. In 1895 the typical bakery worker labored 74 hours a week, but many worked longer. Moreover, in baking as elsewhere, nearly everyone worked by the day, not by the hour, and neither custom nor law required additional pay for added hours.
Clearly something had to be done, but what? Unlike industries with large factories, or even the sweatshops of the garment trades, health and safety regulations would be hard to devise and even harder to implement. Bread baking was a marginally profitable business but an essential one in an urban environment. So reformers set out to do what they could, and in 1895 the state assembly passed the New York Bakeshop Act.
As with most protective legislation in the Progressive era, several reform groups backed the measure, which was modeled closely on the English Bakehouse Regulation Act of 1863. But while they all agreed that the cellar bakeries had to be cleaned up, the groups had differing agendas.
Public health advocates, for example, believed that both the work and the environment of the cellars led to what was then called consumption. That term included any wasting disease and lung disorder, including what we now label tuberculosis. Consumption was the most dreaded disease of the nineteenth century, and euphemisms included “captain of death” and “the white plague.” Although prevalent, little was actually known about it, and curative potions such as Duffy’s Pure Malt Whiskey were sold to prevent “the frightful ravages of these scourges which have so long baffled medical science.” Even after the German scientist Robert Koch discovered the tubercle bacillus in 1892, proving that consumption was bacterial and spread by infection, controversy continued over its cause and cure. Not until 1907 did the New York City Health Department implement a program that recognized the bacterial source of tuberculosis and require the reporting of cases.
In 1894 common wisdom accepted the idea that unhealthy environments—like the cellar bakeries—caused consumption, and in fact bakery workers did seem to suffer from a variety of respiratory ailments that probably included tuberculosis but also included problems that we now know were caused by breathing flour dust and working with leaking sewage nearby. That year Edward Marshall, a muckraking reporter for the New York Press, wrote a series of stories detailing the unsanitary conditions in the bakeries. Marshall’s stories led state factory inspectors to investigate, and they concluded that not only were the workers at risk, but so was the general public that bought and ate their bread:
Cockroaches and other insects, some of them the peculiar development of foul bakeries and never seen elsewhere, abounded, and as chance willed became part of the salable products. Rats, which seemed not to fear the human denizens of these catacombs, ran back and forth between the piled up bread and their holes.
The inspectors noted that many of the bakers lived in the bakeries, and “hardly ever get out of their baking clothes, that they, as well as their bedding, are in a nauseating filthy condition, totally unfitted to serve as chief factors in the production of the staff of life.” The Marshall exposé, confirmed by the state report, gave public health advocates powerful ammunition to push for reform.
Housing reformers wanted to provide safer and healthier housing, and doing away with unsanitary bakeshops in the cellars was a necessary step. In 1890 Jacob Riis published How the Other Half Lives, with vivid language and dramatic photographs documenting the crowded and unsanitary conditions in New York’s tenement districts. In the two decades that followed reformers used a variety of approaches to try to improve the housing in which the cities’ poor lived. Settlement houses organized home visitors to instruct the immigrants on cleanliness; others pushed for parks and playgrounds to alleviate the harsh slums; and, in an effort to ease overcrowding, cities and states passed laws limiting the number of people who could live in an apartment, although with a lack of sufficient inspectors, poor families who needed the rent of one or more boarders kept fitting in as many people as possible.
Reformers also tried to draw a line between work and home. This proved nigh impossible in the garment trades, where many men and women did their work at home. That, however, was “clean” work; cutting and sewing by poor light may have been bad for the eyes, but it did not attract vermin, and they could not sell dirty goods to their jobbers. Cellar baking, on the other hand, violated all of these precepts, and housing reformers also joined the fight to pass the Bakeshop Act.
Purely and simply, labor advocates wanted to reduce the long hours that men toiled in the cellar shops. In fact, when the bill was introduced in February 1895, bakers on New York’s East Side were on strike to demand shorter hours and better working conditions. Unions led the fight for the new Bakeshop Act, and the law reflected labor’s priorities.
While few bakeries ever grew to the size of the cracker factories, some bake shops, especially in the more middle-class sections of the city, operated at a level well above the cellar bakeries in terms of size and cleanliness, and the workers tended to be of German descent. Most of them belonged to the Bakery and Confectionary Workers International Union, and by the mid-1890s had negotiated contracts that established a ten-hour day and a six-day week. These bakeries—both the owners and their employees—worried about competition from the cellar operations, which could sell their breads at a lower rate because they paid less for labor and rent and worked their men far more than ten hours a day. An article in the Bakers’ Journal condemned “the cheap labor of the green hand [recent immigrant] from foreign shores,” which drove down wages for all and forced honest journeymen “into other walks of life, into the streets, the hospitals, alms houses, insane asylums, penitentiaries and finally death through poverty and desperation.”
A key figure in the union was the charismatic Henry Weismann, a German immigrant who had started his American life in California, where he had been active in the union-sponsored Anti-Coolie League, which violently opposed Chinese workers in the United States. Police arrested Weismann for possession of explosives, and after a short jail term he moved to New York and became editor of the Bakers’ Journal; by 1894 he had become the unofficial leader and spokesman for the union and played a key role in organizing union support for the Bakeshop Act.
The sanitary regulations followed the British law, and included prohibitions against keeping domestic animals in bakeries and workers sleeping in the bakeroom, and sought to establish minimum sanitary standards. The key provision of the New York law from labor’s standpoint was a clause limiting biscuit, cake, and bread workers to ten hours of labor per day and sixty per week. The state’s health commissioner, Cyrus Edson, endorsed the hours limit as a health measure: “The provision limiting the hours of worktime of the men is especially good from a sanitary standpoint. There is unmistakable evidence that these men are overworked, and that, in consequence of this, they are sickly and unfit to handle an article of food.”
Gov. Levi P. Morton put his signature on the law on May 2, 1895, just a few days after it passed with wide margins in both houses of the assembly. Weismann’s editorial in the Bakers’ Journal proclaimed that this day “will stand forth as one of the most memorable days in the history of the great struggle of American bakers for better and more humane conditions.” That optimism, however, soon turned sour in the face of reality. Factory inspectors found that most cellar bakeries ignored both the sanitary regulations as well as the limits on hours. For many men the bakery was not only where they worked but also where they lived, so they did not want to report violations, fearing their employer would fire them and evict them from the only home they knew. Reformers called for a new law abolishing cellar bakeries altogether, but that effort failed, as did a demand from boss bakers, tenement house owners, and flour merchants to weaken the law.
The scene now shifts from the lower East Side of New York, the site of so many of the cellar bakeries, to upstate Utica and Lochner’s Home Bakery, which produced cookies, bread, and cakes primarily for early-morning customers on their way to work. A 1908 photograph of the bakery shows a relatively airy and mechanized shop on the first floor of a commercial building, one quite unlike the cellar bakeries sensationalized in Edward Marshall’s articles. Because changes in the bread-baking trade occurred fairly rapidly at this time, there is no way to tell if the shop of 1908 is the same as it was in April 1901, when Lochner was charged with violating the Bakeshop Act.
Like most bakery owners, Lochner opposed the act, and in the years after its passage simply ignored it. His employees often had to work late into the night, sometimes sleeping in the bakery before getting up early to prepare for the morning rush. An inspector, probably through the Bakers Union, learned that one of Lochner’s employees, Aman Schmitter, worked more than sixty hours one week and swore out a complaint against the bakery owner. Apparently this was not Lochner’s first violation, but this time he decided to fight. No one was going to tell him how to run his business—not the workers, nor their union, nor the state of New York.
Although this was a civil rather than a criminal misdemeanor, in New York at that time there was little difference procedurally between the two, and so in October 1901 a grand jury of Oneida County indicted Lochner for violation of the Bakeshop Act. Lochner and his attorney, William S. Mackie, recognized that they had little hope of prevailing at the local or perhaps even the state level, and hoped they would be able to appeal to the Supreme Court. In a pretrial motion Mackie asked for dismissal on the grounds that the grand jury had not properly stated the charges, and that even if true, what his client had done did not constitute a crime. Judge W. T. Dunmore dismissed both objections, and at the beginning of the trial on February 12, 1902, asked Lochner whether he pleaded innocent or guilty. Lochner refused to do either and offered absolutely no defense to the charges, giving Dunmore no choice but to find him guilty and sentence him to pay $50 or spend fifty days in jail.
While the tactics may have been designed to move quickly into the appeals process, the plan did not display great lawyering skills on Mackie’s part. He apparently did not take into account the fact that appeals courts do not hear evidence, but decide only questions of law. The facts that help them decide whether the law has been properly applied are supposed to have been determined during the trial, and constitute what is known as the record. Lochner’s trial left no record of his defense, and all the state appeals courts had to go on was the unchallenged testimony from the state that one of Lochner’s employees worked more than the sixty hours a week permitted by law.
Nevertheless, Lochner and Mackie believed that they would have better luck at the appellate level because New York courts had not been overly friendly to protective legislation. In the famous cigar makers case (In re Jacobs [1885]), the state’s highest court had invalidated a law banning cigar manufacturing in tenements as a violation of due process. More recently, the state court had struck down a requirement that state contractors pay their workers the “prevailing wages” (People ex rel. Rodgers v. Coler [1901]). But New York courts had also endorsed a wide range of labor regulations as within the police power.
The Appellate Division, the first step in the appeals process, split 3–2 in upholding the law. The judges dismissed the technical claim that the grand jury had not filed a proper indictment, and Judge John M. Davy distinguished the Bakeshop Law from the cigar makers case because the new law did not prohibit baking but merely imposed regulations on how the business was conducted, a legitimate expression of the police power. Two of the judges, however, dissented without filing an opinion, and one assumes that they agreed with Mackie’s claim that the law violated due process by infringing too greatly on Lochner’s business, especially the right to contract freely with his workers.
Lochner and Mackie then appealed to the Court of Appeals, New York’s highest court, and lost in a 4–3 decision. Chief Judge Alton B. Parker declared it “beyond question” that the public had a right to have clean bakeries, and therefore the state could, under its police power, regulate the conduct of the business. Parker played down the fact that labor unions had been the prime movers in securing the hours limitation, and opined that the Bakeshop Act as a whole had clearly been intended to promote public health; the hours limitation was merely part of the overall plan to promote sanitary conditions. In fact, even if the law had not been intended to protect the public health, it still operated to guard the health of the bakers and therefore fell within the ambit of the police powers (People v. Lochner [1904]).
Three judges dissented, and two of them wrote opinions. Denis O’Brien believed the hours provision unduly paternalistic and an infringement of the liberty and property of citizens. Moreover, the hours provision, even if attached to a purported health measure, amounted to “class legislation”—that is, laws designed to benefit only one particular group and not all citizens equally. He found no connection between the hours regulations and the sanitary provisions, and could see no way that the hours limitation could be construed as a health measure. Edward Bartlett agreed with O’Brien and condemned the hours limitation as paternalistic and therefore null and void.
The Court of Appeals is the first forum in this case in which the larger battle of due process and freedom of contract came up against the police power. The trial court and the Appellate Division had not bothered to debate this point, the former because Lochner, aside from a pretrial objection, had not really articulated this claim, and the latter because it had not been part of any record. The Court of Appeals could easily have followed this approach, but at least three members of the state high court strongly believed in the concept of the negative state, one that had very few powers, and were willing to pose that against almost every effort by the state to regulate either the market or the workplace.
Union supporters were elated with the decision, but not with how close the vote had been, and realized that there would be an appeal to the Supreme Court. But, they believed, the Court would merely confirm the New York decision; there was nothing to worry about. The New York Association of Master Bakers, which had been paying for at least part of Lochner’s legal costs, met shortly after the Court of Appeals decision, and decided to levy a one dollar assessment on each member to pay for the appeal to the Supreme Court. The association also decided to replace Mackie with Frank Harvey Field, a prominent Brooklyn attorney, and Henry Weismann.
Henry Weismann? The same Henry Weismann who had been elected international secretary of the bakers union and had been one of the masterminds in piloting the Bakeshop Act through the New York Assembly? Indeed, this was the same man, now arguing on the opposite side of the question. He had resigned only two years after gaining control of the union, complaining of unbearable antagonism and whispered vilifications. His opponents, however, claimed that he had been forced out because they had caught him with his hand in the till, and offered proof showing that Weismann and several others received kickbacks from the company that printed the Bakers’ Journal, and that they had also skimmed off some of the money paid by advertisers.
Around this time (it is not clear if it was while he still headed the union or after he had been forced out in 1897), Weismann opened a bakery of his own and joined forces with his old enemies in the Retail Bakers’ Association, the organization of bakery owners. He became a shrill critic of the Bakeshop Act, denouncing it through his new role as editor of the Bakers’ Review, the journal of the bakery owners. He also studied law and passed the New York bar exam. He later wrote that as a master baker, he underwent “an intellectual revolution, saw where the law which I had succeeded in having passed was unjust to the employers.” He would now have a chance to prove that in the nation’s highest court, which had agreed to hear the case.
Although the Supreme Court had struck down some protective legislation, Lochner’s chances nonetheless appeared slim. In Holden v. Hardy (1898) the justices had upheld an hours law that applied to miners and men who worked in dangerous occupations. The majority had also upheld three statutes, based on the police power, which had been challenged as class legislation, with the dissenters never getting more than three votes. Even though the Court had within the last several years recognized a substantive due process that protected vested property rights and that freedom of contract also enjoyed constitutional protection, it had not used either of those stratagems to invalidate legislation passed under the police powers.
Field and Weismann decided, first, that their best chance lay in attacking the Bakeshop Act as prohibited class legislation. They condemned the hours provision as class legislation because it applied to some bakers and not to others, and claimed that between one-third and one-half of all bakers did not come within the law’s compass. This group included bakery owners; bakers in hotels, restaurants, clubs, and boarding houses; or bakers who were seasonal workers.
Second, they maintained that the hours law did not fall within the legitimate purview of the police power because, unlike in Holden v. Hardy, where the law dealt with dangerous trades, baking was not the type of business that needed special regulation. Unlike mining, baking was a generally healthful occupation, and if the Court allowed the law to stand, that “would mean that all trades will eventually be held within the police power.”
Third, Field and Weismann denied that the Bakeshop Act was a health measure. Its backers asserted that it had been modeled on the English Bakehouse Regulation Act of 1863, but that law had in fact been a sanitary measure and did not regulate adult working hours. The New York law, Field and Weismann declared, was really an hours regulation on which there had been tacked a few sanitary measures. While the state had the power to enforce true health provisions, it could not enact class legislation under the flimsy excuse of a few sanitary clauses.
Interestingly, the two lawyers also provided an appendix that in many ways anticipated the fact-laden brief that Louis Brandeis would submit a few years later in Muller v. Oregon (1908). In the New York Court of Appeals, Judge Irving G. Vann had concurred in upholding the law, but had emphasized that he considered it primarily a sanitary measure because baking was unhealthful. Field and Weismann presented mortality figures from England showing that bakers had a lower mortality rate than the general population. Another English study asserted that bakers had a mortality rate about equal to those of cabinet makers, masons, and clerks, and in the twenty-two occupations studied, bakers had the lowest rate of pulmonary disease. They also included excerpts from medical articles recommending better sanitation and ventilation in bakeries, but not shorter hours. All told, the brief for Lochner was thorough, well argued, and backed by factual data disputing the claim that the Bakeshop Act was a health measure.
In turn, Julius M. Mayer, the New York attorney general, filed only a short brief, probably because he considered it an easy case governed by Holden v. Hardy. Mayer made three points: first, Lochner had the burden of proving the statute unconstitutional, as opposed to New York having to prove it was valid; second, the purpose behind the Bakeshop Act had been and remained the protection of the public health and the health of bakery employees; third, since the law was so clearly a health measure, it fell within the legitimate purview of the police power.
The Court heard oral argument on February 23, 1905, and handed down its decision on April 17. Given the Court’s recent history in upholding police power regulations, it came as a surprise when Lochner won, albeit by a close 5–4 vote. (There is evidence that in the initial vote the Court had sided 5–4 with New York, and Justice John Harlan had been assigned the opinion. Then one of the justices changed his mind, throwing the case to Lochner, and Harlan’s opinion became a dissent.) Chief Justice Melville Fuller, David Brewer, and Rufus Peckham, as anticipated, voted to void the law; none of these three men had ever met a labor law he considered constitutional. More surprisingly, they were joined by Henry Brown and Joseph McKenna, neither of whom had previously voted to invalidate protective legislation. Why they did so in this case has been attributed by some to the creativity of the Field and Weismann brief, especially the appendix, arguing that baking was not an unhealthful profession.
Peckham delivered the majority opinion (there is some internal evidence that it had begun life as a dissent). Surprisingly, in light of Lochner’s emphasis that the Bakeshop Act was class legislation, Peckham ignored that issue and employed a fundamental rights/due process analysis. The hours provision clearly interfered with the right of contract, he declared, which the Court had recognized in Allgeyer v. Louisiana (1897) as part of the liberty protected by the due process clause of the Fourteenth Amendment. Under Holden this liberty could be infringed to protect the public health or the health of workers at risk, but the law always favored liberty of contract. The only way the Bakeshop Act could be sustained was if in fact it protected workers’ health, and Peckham clearly did not believe that it did. “Clean and wholesome bread,” he asserted, “does not depend on whether the baker works but ten hours a day or only sixty hours per week.”
Unlike children, women, or miners, bakers could not be considered a “necessitous” group needing special protection. So unless the state could prove that the hours provisions had been intended to address particular unhealthful aspects of bakery work, the law unconstitutionally violated the fundamental right of liberty of contract. Peckham then asked whether any proof existed to show baking as a dangerous or unhealthful trade, and concluded there was not; in fact, the scientific evidence seemed to say just the opposite. (Peckham here clearly relied on the factual appendix submitted by Field and Weismann, but did not cite it directly.)
Since the law clearly failed to qualify as a health measure, it could not be maintained as a valid exercise of the police power. The act is not, he declared, “within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts.” While the sanitary provisions of the law might be valid, the hours regulations definitely were not. He ended by warning state legislatures that the courts would determine whether purported health laws were in fact related to legitimate concerns of the state, and that merely describing a measure as a health law did not make it so. In other words, it did not matter whether state legislatures thought they were enacting health measures or not; that judgment would be made by the courts.
Justice John Marshall Harlan delivered the main dissent, joined by Edward White and William Day, and where Peckham had taken a crabbed view of the police power, Harlan took a far more expansive position. The police power, Harlan wrote, extends at least “to the protection of the lives, the health, and the safety of the public against the injurious exercise by any citizen of his own rights,” and the Fourteenth Amendment had never been intended to interfere with this power. Liberty of contract certainly did exist, but it had to be subordinate to the police power. The Court should not be second-guessing the legislature as to the health benefits of a statute, and should only invalidate a purported health measure if it had “no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by fundamental law.”
Harlan in essence accepted Peckham’s belief in freedom of contract as a basic, constitutionally protected right, but believed that when in conflict with a legitimate exercise of the police power, the latter took precedence. They also agreed that when a claimed health measure did not, in fact, deal with health issues, then it should be voided. They differed in that Peckham saw the Bakeshop Act as a labor regulation masquerading as a health measure, since he did not consider baking unhealthful, while Harlan accepted the rationale of the New York legislature that long hours did adversely affect both the health of the bakers and the safety of the public’s bread.
Although Harlan’s was a well-crafted dissent, for the most part we pay little attention to it today because it has been overshadowed by the brief but memorable dissent filed by Oliver Wendell Holmes Jr. Holmes’s dissent instantly became the classic call for judicial restraint and an attack on judges who would substitute their policy preferences for those of the people’s duly elected representatives. The majority opinion, he charged, was based on “an economic theory which a large part of the country does not entertain.” The state’s right to interfere with liberty of contract was well established in history, and he pointed to such examples as laws against usury or Sunday work. A constitution is not supposed to embody a particular economic theory, be it paternalism or laissezfaire. “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a famous argument for laissez-faire. The whole idea of liberty, Holmes went on, is perverted whenever it is “held to prevent the natural outcome of a dominant opinion,” except when everyone could agree that a particular statute infringed upon fundamental principles. That was not the case here, and he believed a reasonable person would find the hours provisions legitimately related to health, and therefore the law should be upheld.
As one might expect, reaction varied according to where one stood in relation to protective legislation. Bakery owners and other businessmen applauded, while organized labor denounced Peckham’s opinion as reactionary, confirming their view of the judiciary as a handmaiden to capitalist entrepreneurs and an enemy of working people. Legal scholars then and later condemned the majority opinion as mechanical jurisprudence, as abstract reasoning that did not take into account the facts of real life. Here they overlooked the presence of the factual appendix about bakers’ mortality rates in Field and Weismann’s brief, one that Peckham clearly relied on, and the fact that the state of New York made no effort to prove its assertion that the hours provision was in fact a health measure. Lochner was destined to become a symbol of judicial interference with the democratic process, where judges substituted their own judgment of policy choices for those of the people’s elected assemblies. Holmes’s dissent became a rallying cry for Progressives, and even though subsequent scholars have tried to show that a legitimate jurisprudential theory undergirded Peckham’s opinion, “Lochner” and “Lochnerism” never lived down this odor.
Three years later, however, many reformers believed that the justices had recognized their “error” when a unanimous Court upheld a ten-hour-a-day, sixty-hour-week law for women in Muller v. Oregon. The noted Boston attorney and future Supreme Court justice Louis D. Brandeis submitted a brief designed to answer Peckham’s arguments. Where Field and Weismann had put factual material into an appendix, Brandeis made it the heart of his brief—nearly one hundred pages of abstracts from state and medical reports and only two pages of legal citation. The state of Oregon believed that limiting the number of hours women worked was a legitimate health measure, and Brandeis gave the Court proof that it was—proof that New York had failed to advance in support of the Bakeshop Act.
Muller seemed a turning point, and in the following decade the Court rarely overturned state statutes regulating labor. By the time the United States entered World War I most people thought of Lochner as a dead letter. In 1917 the Court upheld a maximum hours law applying to all workers, men as well as women (Bunting v. Oregon), and Lochner seemed to have been overruled sub silentio. In the 1920s, though, it came roaring back when the Taft Court, packed with conservatives opposed to protective regulation, struck down one reform law after another, narrowing the scope of the police power as well as how that power affected the public interest. In 1923 the Court struck down a federal minimum wage law that applied to the District of Columbia in Adkins v. Children’s Hospital, and Justice Sutherland ignored nearly two decades of precedent to revive Lochner and the primacy of freedom of contract. That set the stage for the ongoing fight between reformers and conservatives that would reach its peak in the constitutional crisis of the mid-1930s. The road away from Lochner began in 1937, when the Court upheld a minimum wage law for women in West Coast Hotel Co. v. Parrish (see Chapter 16).
Debate continues today over Lochner and its jurisprudence, with the notion of substantive due process—once thought dead and buried—reincarnated to protect rights other than property. Much of the revolution in civil liberties, including the Court’s enunciation of a right to privacy, finds its origin as liberty interests in the Fourteenth Amendment, and this presents a paradox for scholars who support those rights but denounce the Lochner Court as activist.
Unfortunately, we know little of the man who gave his name to the case. One assumes he rejoiced in his victory in the Supreme Court, and afterward continued to run Lochner’s Home Bakery as he saw fit.
Adkins v. Children’s Hospital, 261 U.S. 525 (1923)
Allgeyer v. Louisiana, 165 U.S. 578 (1897)
Bunting v. Oregon, 243 U.S. 426 (1917)
Holden v. Hardy, 169 U.S. 366 (1898)
In re Jacobs, 98 N.Y. 98 (1885)
Lochner v. New York, 198 U.S. 45 (1905)
Muller v. Oregon, 208 U.S. 161 (1908)
Noble State Bank v. Haskell, 219 U.S. 104 (1911)
People ex rel. Rodgers v. Coler, 59 N.E. 716 (N.Y. 1901)
People v. Lochner, 69 N.E. 373 (N.Y. 1904)
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)
The best single book on the case is Paul Kens, Judicial Power and Reform Politics: The Anatomy of Lochner v. New York (1990, rev. ed. 1998). There are few studies of the baking industry, but a useful account is William G. Panschar, Baking in America (2 vols., 1956). The fight of labor for shorter hours and the response of the law are examined in Christopher L. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (1985). Sidney G. Tarrow first suggested that Lochner should be viewed more as a labor union case than as health or housing reform in “Lochner Versus New York: A Political Analysis,” 5 Labor History 277 (1964). The most nuanced reexamination of the case and its aftermath is Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993). An assertive defense of the majority opinion is David Bernstein, Rehabilitating Lochner (2011). To put the case in the larger context of jurisprudential development and change, see William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (1998).