Lochner v. New York Divides Conservatives More Than Progressives Admit

Somewhere in America a law professor is about to tell a room of first-year students that Lochner v. New York is the worst decision in the history of the Supreme Court, and that conservatives love it. Half of that sentence is a caricature. The other half is a dinner-table fight that conservatives have been having with each other for decades.

That is the part the other side never mentions. Ask a progressive about Lochner and you will hear one story: reactionary judges, greedy bosses, exhausted bakers. Ask conservatives and you will hear two stories, delivered with equal conviction by people who vote the same way and read the same books. Let's lay out both, because the argument is better than the slogan.

Definitions first

A few terms, because this case is a swamp of them.

Due process of law. The Fourteenth Amendment, ratified in 1868, says that no State shall "deprive any person of life, liberty, or property, without due process of law." Everyone agrees the clause requires fair procedures. The fight is over whether it also limits what a legislature may do, however fair the procedure.

Substantive due process. The doctrine that "liberty" in that clause includes some rights the courts will protect against ordinary legislation, even though the Constitution never lists them by name.

Liberty of contract. The claim that an adult's freedom to agree on the terms of work, hours and pay is one of those protected liberties.

The police power. The old and broad authority of a State to legislate for the health, safety, morals and welfare of its people. Under the Tenth Amendment, nearly all of it stays with the States.

Judicial restraint. The view that judges should defer to the elected branches unless the Constitution's text, fairly read, forbids what they did.

Keep those five in your pocket. Every fight below is a fight over where one of them ends.

The bakery in Utica

In 1895 the New York legislature passed the Bakeshop Act. Most of it was a sanitation code: rules on ventilation, drainage, washing facilities and the cleanliness of floors and walls in the cellar bakeries where much of the city's bread was made. One section capped the working time of bakery employees at ten hours a day and sixty hours a week.

Joseph Lochner owned a bakery in Utica. He was convicted of allowing an employee to work more than sixty hours in a week and was fined. He appealed, and the case reached the Supreme Court. On April 17, 1905, the Court decided 5 to 4 that the hours section violated the Fourteenth Amendment.

Justice Rufus Peckham wrote for the majority. His reasoning had three moves.

1. The right to buy and sell labor is part of the liberty the Fourteenth Amendment protects.
2. That liberty can yield to the police power, but only when the law has a real and direct connection to health, safety or morals, not merely a claim to one.
3. The bakers' law did not qualify. Baking, Peckham said, was not so unhealthy a trade that a State could limit an adult's hours. He saw no real health purpose in the hours cap and treated it as labor regulation, a bargain the State had no business rewriting. He called such measures "mere meddlesome interferences with the rights of the individual" and said the Court had to look behind the label of a health law.

Notice what he did not say. He did not say the legislature could never regulate hours. Seven years earlier the Court had upheld a Utah law limiting hours in mines and smelters, in Holden v. Hardy (1898). The line Peckham drew was between dangerous work and ordinary work, and he drew it with confidence that he could tell which was which.

The two dissents

Justice John Marshall Harlan, joined by Justices White and Day, dissented. His argument was the argument of deference. The question was not whether the law was wise but whether a reasonable legislator could believe it protected health, and he thought plainly yes. Long hours in hot, flour-filled cellars, he reasoned, could be a genuine risk, and where the evidence is arguable the legislature gets the benefit of the doubt.

Justice Oliver Wendell Holmes wrote the more famous dissent, and it is a gem. It is short. It is also, in one line, a masterpiece of compression:

The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.

Spencer was the Victorian philosopher of the survival of the fittest, and Holmes's point was that the Constitution does not pick an economic theory. It leaves the matter to the people and their legislatures, whether the theory is paternalist or laissez-faire. A constitution, Holmes said in substance, is made for people of fundamentally differing views.

That line is why Lochner became a verb. To "Lochnerize" is to read your economic preferences into the Constitution. The word is an insult in law schools, and it is hurled at conservative judges by progressives who then, with a straight face, discover new rights in the same clause.

What happened next

The Lochner era did not end with Lochner. It ran for three decades and was messier than its reputation. The Court upheld the ten-hour day for women laundry workers in Muller v. Oregon (1908), a case remembered for Louis Brandeis's brief stuffed with sociological data. It struck down a federal ban on child-labor goods in Hammer v. Dagenhart (1918) on commerce grounds, and it invalidated a minimum wage for women in Adkins v. Children's Hospital (1923).

Then came the crisis. In 1937, in the middle of the fight over President Franklin Roosevelt's plan to add justices, the Court decided West Coast Hotel Co. v. Parrish, 5 to 4, with Chief Justice Charles Evans Hughes writing. It upheld Washington State's minimum wage for women and overruled Adkins. Hughes's opinion said the Constitution does not speak of "freedom of contract" at all, only of liberty, and liberty is subject to the reasonable restraints of the community's welfare. The bright lines were gone. The Court would, from then on, review economic regulation with a far more deferential eye.

Whether it was "the switch in time that saved nine" is a question on which you should distrust any confident claim about Hughes's motives. The outcome is clear: judicial review of economic liberty collapsed, and judicial review of other kinds of liberty took its place.

The conservative case that Lochner was wrong

Now the fight inside the family. First, the restraint conservatives.

Their strongest voice was Robert Bork, whose 1990 book on the judiciary made Lochner a centerpiece. His argument was not about bakers. It was about method. Bork held that Lochner was the original sin of judicial activism, a case where judges took a vague phrase, "liberty," and filled it with whatever economic philosophy they preferred. The danger, he said, is not that the philosophy was bad. The danger is that nothing in the Constitution told the judges which philosophy to choose, so the choice was theirs, and a government of laws became a government of five.

That is a heavyweight premise and it is hard to answer. Number the argument.

1. A court may strike down a law only when it can point to something in the Constitution that the law violates.
2. "Liberty of contract" appears nowhere in the Constitution's text. It is an inference.
3. If judges may draw inferences like that, they may draw others. Within sixty years, the same clause was carrying a very different set of rights.
4. Therefore, the way to guard against judicial legislation of the right is to refuse judicial legislation of the left, and the way to refuse it is to be consistent.

Bork's logic is the logic of conservative opposition to Roe v. Wade and to every later extension of substantive due process. If you accept Lochner's method, you cannot complain about the method in Roe. You can only complain about the result. And a rule that says "judges may invent rights as long as I like them" is not a rule. It is a team jersey.

There is more. The restraint camp points out that the people whom Lochner nominally protected were not asked. The Bakeshop Act was passed by an elected legislature, signed into law, and sustained by the New York courts, including a divided state high court. When nine unelected judges overrule that, they are saying their reading of an unlisted liberty beats the considered judgment of the people's representatives. Federalist 78 calls the judiciary the least dangerous branch because it has neither the sword nor the purse, only judgment. Judgment about the text, not about bread.

The conservative case that Lochner was right

Now the libertarian conservatives, and they deserve better than the cartoon.

Legal scholar David Bernstein, in a book published in 2011, argued that the Lochner-era Court has been badly misdescribed. In his telling, the justices were not enforcing Herbert Spencer, who barely appears in the opinions, and they were not simple tools of big business. They were enforcing an older principle: that the government may not hand one class of citizens a burden or a benefit at the expense of another unless it can show a genuine public purpose. They were suspicious of what we would now call special-interest legislation.

Apply that to the bakeshop. The hours section, on this reading, was not a health measure at all. Larger, more mechanized bakeries could meet a sixty-hour weekly cap more easily than small, family-run, immigrant-owned cellar shops, which depended on long hours and on employees who wanted them. A law that looked like a gift to workers may have worked as a barrier to entry that protected established firms and the unions that supported the bill. I want to be careful here. Historians and scholars disagree about how much of this was the real motivation in 1895, and no honest reader should claim certainty about the legislators' minds. But the structure of the argument is serious, and it is a familiar one. Licensing laws that protect incumbents from competition are an old story, and many of us have met them.

Add the moral dimension. The right to work, to sell your labor on terms you accept, is not a minor liberty. For free Black Americans after the Civil War, it was the difference between freedom and a codified subordinate status. The Black Codes of the Reconstruction South restricted the occupations Black Southerners could hold and the terms of their labor contracts, and many historians connect them to the push for the Fourteenth Amendment. The privilege of earning an honest living, on this view, sits close to the center of what the amendment meant, though not necessarily in the Due Process Clause. Many libertarian-leaning originalists argue that the right home for this protection is the Privileges or Immunities Clause, which the Court gutted in the Slaughter-House Cases (1873) and which the Lochner majority never invoked. Their complaint about Lochner, then, is not that the Court protected economic liberty. It is that the Court did it under the wrong clause, in the wrong way, and so discredited the whole project for a century.

And a plain consequence follows. If economic liberty gets no judicial protection at all, the government may do almost anything to your livelihood so long as it can invent a reason. The modern rational-basis test is famously toothless: a court will sustain a law if it can imagine any conceivable justification. You may be required by a licensing board to take hundreds of hours of training in order to braid hair. You may be kept out of selling caskets by a state's funeral-directors cartel. No one in a black robe has to ask whether the rule has anything to do with safety. For the libertarian conservative, the post-1937 settlement abandoned a core liberty, and the courts shrugged.

A fair hearing, and then a verdict

So who is right? Let me say first what each side gets right.

The restraint conservatives are right about method. A judge who finds an unwritten right and then enforces it against the people's representatives owes everyone a reason grounded in the text, history and tradition of the Constitution. "Liberty of contract" as the Lochner majority used it was a doctrine with soft edges and a built-in tendency to follow the judges' own taste. The distinction between a health law and a labor law was exactly the kind of line that tempts a judge to decide the policy, and Harlan was right that the evidence was arguable enough to leave to Albany.

The libertarian conservatives are right about substance. Economic liberty is a real liberty, and a constitution that guarantees a hundred other freedoms but treats the right to earn a living as an afterthought has lost something. And they are right that the sneering shorthand, "Lochnerism," has been used to shut down any inquiry into whether a law is actually a favor to a cartel.

My verdict is this. Lochner was wrongly reasoned and rightly worried. The majority was wrong to read an unenumerated, free-floating contract right into the Due Process Clause and to appoint itself the arbiter of which trades are healthy. The dissenters were right that this was a matter for the legislature. But the worry behind the majority, that a legislature can use the language of health to serve a faction, is a real worry, and the answer to it is not a judiciary with no eyes at all. The answer is honest judicial review grounded in text: the Privileges or Immunities Clause, the Equal Protection Clause's bar on class legislation, and a rational-basis test that actually asks for a rational basis rather than a plausible-sounding excuse.

That is not a comfortable middle. It is a harder position than either camp's, because it takes away the satisfaction of a single clean rule. The restraint camp has to concede that "defer to the legislature" has cost people their livelihoods. The libertarian camp has to concede that "protect economic liberty" cannot be done by guesswork about which regulations are really reasonable.

The other side's version

A progressive will say something like this. Lochner is where judges decided that a worker and an employer bargain as equals, which is false, and used that fiction to strike down laws protecting people with no power. The Court that reversed course in 1937 was reading reality.

That is the best version, and part of it is fair. Workers in a one-company town do not bargain as equals with the owner, and no serious conservative says otherwise. But the answer is that the Constitution does not give judges the job of resolving that question, in either direction. It gives the job to legislatures, who must answer to voters, and it gives courts the narrower job of enforcing the text. If a legislature wants to regulate hours, the Tenth Amendment lets it. If a legislature wants to deregulate, the same amendment lets it. What a court should not do is announce that it knows the correct economics. That was Holmes's point, and it cuts against the progressive tradition just as sharply as against Peckham, because the progressive tradition then spent the twentieth century finding its own rights in the same unlisted places.

The people who insist that Lochner is the worst case ever decided are, in many cases, defenders of a method that is Lochner's cousin. Remove the bakers, put in a different unenumerated liberty, and the structure is identical. A judge says: this liberty is so fundamental that the legislature cannot touch it. Where does the judge find it? In the same single word. If you are going to accuse the other side of Lochnerizing, you had better be sure your own house has a lock on the door.

Why this matters to a family

Picture a family that wants to run a bakery from their kitchen and runs into a licensing rule written largely by people already in the business. Whether a court asks a hard question about that rule depends on how it answers the question Lochner posed. If the courts abdicate completely, the answer goes to whoever has the best lobbyist. If they swing back to judging every regulation's wisdom, we get the Lochner problem again. The way through is to pick the clause the ratifiers actually wrote and ask for real reasons. It is slower than a slogan. It is also the only version that works for everyone.

You can read how the Court's thinking on precedent works in Stare Decisis Explained, and the Factors Justices Weigh Before Overruling, how judges decide which method to use in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen, and how the same fight over unwritten rights shaped Griswold v. Connecticut and the Right to Privacy Built From Penumbras. The mirror image of Lochner's economic story, a Court deferring to Congress on commerce, appears in United States v. Lopez Was the First Commerce Clause Limit Since the New Deal. For the oldest version of the argument, see Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?, and for the thing Holmes was defending, see Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not. You can also look up the cases themselves in the Courts section.

The case in brief

1. Lochner (1905) struck down New York's ten-hour, sixty-hour bakers' cap on the theory that liberty of contract is protected by the Fourteenth Amendment's Due Process Clause.
2. Holmes's dissent was right on method: a constitution does not enact an economic theory, and judges who find unlisted rights invite every other judge to do the same.
3. The libertarian conservative critique is right on substance: the right to earn a living is real, and a rational-basis test that accepts any imagined excuse protects cartels, not the public.
4. West Coast Hotel (1937) ended the era, but not the underlying question: which clause protects economic liberty, and how hard should a court look.
5. The honest answer is neither Peckham's guesswork nor total abdication but text-based review under the clauses the Fourteenth Amendment actually wrote.

What you can do: look up the licensing rules for one occupation in your state on your state legislature's website and read who sits on the board that writes them.