Elizabeth Donald, Summer Intern UVA Law, Class of 2019
In the spring of 1905, five justices on the U.S. Supreme Court issued what has become one of the most hated opinions in all constitutional jurisprudence. Six years prior, Joseph Lochner was indicted for violating § 110 of the New York Bakeshop Act of 1895 which prohibited bakers and their employees from working more than 60 hours per week and 10 hours per day. Bringing his case all the way to the U.S. Supreme Court, Lochner argued that the Bakeshop Act infringed upon an individual’s right to contract freely, a right he believed inherent in the U.S. Constitution. Lochner had a strong foundation for his case because the challenged legislation was passed under pretextual motives. Corporate city bakeries had lobbied the New York legislature in the late 19th century to limit the production of smaller bakeries. Section 110, limiting bakers’ hours of work, was strategically placed among a long list of health and safety provisions.
Since Lochner v. New York was handed down in 1905, jurists and legal scholars alike have cringed upon any reference to the case. Progressives of the early 20th century saw this ruling as an attempt to constitutionalize laissez-faire economics. Justice Holmes famously wrote in his dissent that “[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statistics.” They instead advocated for a deference to the legislature in almost all matters, calling for what we today call “rational basis review.” Liberals still oppose economic liberties and take a classical progressive approach in arguing against such liberties as a fundamental right. Most conservatives of the modern era have likewise denounced Lochner, also adopting a part of the classical progressive view that supports widespread deference.
These viewpoints miss the mark. Lochner’s opponents frequently argue that because the Constitution does not explicitly express the right of the individual to contract freely, it is not a fundamental right. Yet, if this were the case, we would also have to throw away Griswold v. Connecticut and Roe v. Wade, in which the Court “found” the right to privacy in the Constitution without the explicit expression thereof. In fact, Lochner actually has more footing than both Griswold and Roe because the Civil Rights Act of 1866, upon which the Fourteenth Amendment was based, promulgates an individual’s right to enter into contracts. The 39th Congress, therefore, clearly understood liberty of contract as a fundamental right. The Lochner decision actually helped to equalize the playing field for bakeries at a time when corporations were economically dominant. In upholding the right of small bakery owners and employees to work an unlimited number of hours, the Court allowed them to compete against the larger, corporate bakeries.
The Court, in Lochner, simply applied a theory of natural rights that is historically imbedded in the Constitution. In invalidating the Bakeshop Act, the Supreme Court found “liberty of contract” to be a fundamental right under the Due Process Clause of the Fourteenth Amendment to the Constitution which states, “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . .” The Court thus espoused a view which assumes a presumption of liberty in the Constitution, that is, that liberty rights come before any other powers such as those given to state legislatures to enact laws for the public health, safety, morals and welfare.
Why, then, has Lochner been deemed bad law over the course of the past century? Many constitutional scholars are beginning to pose this question in suggesting that the courts revitalize Lochner. In a recent discussion at Duke Law School, Randy Barnett explained that whereas Lochner used to be categorized as “very bad,” it is now only “bad.” It is possible for a revitalization of Lochner to occur in the upcoming years. Even in the past few decades, the Court has repeatedly adopted a similar approach to that of the Lochner Era by categorizing a line of unenumerated rights as fundamental.
Justice Roberts criticized the majority’s Lochnerian stance in its decision to constitutionalize the right to same-sex marriage. He wrote in his dissent in Obergefell v. Hodges, “[The majority’s] aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.” If the Court continues on this path, and if it adopts the latest constitutional scholarship, it might reconsider Lochner. The decisions in Griswold, Roe, and Obergefell would have all received greater justification had they simply appealed to Lochner as precedent. Cases decided this past term, such as Whole Woman’s Health v. Hellerstead, would also have received great backing from Lochner. Reconsidering the decision may have great effect on the Court’s decisions.