v. New York (1905)
v. New York (1934)
v. Lee Optical (1955)
With its 1905
the case of Lochner v. New York, the Supreme Court embarked
one of the most controversial courses in its history. Over the
three decades, the Court would strike down numerous attempts by state
to improve working conditions or protect consumers, all under the guise
of a liberty found in the Due Process Clause of the Fourteenth
the "liberty of contract." The term "substantive due process" is
often used to describe the approach first used in Lochner--the
of liberties not explicitly protected by the text of the Constitution
be impliedly protected by the liberty clause of the Fourteenth
In the 1960s, long after the Court repudiated its Lochner line
cases, substantive due process became the basis for protecting personal
rights such as the right of privacy, the right to maintain intimate
the Court backed away from substantive due process in the context of
regulation in cases such as Nebbia v. New York. The trend
toward increasing deference to state regulation of economic matters
until by the time of Williamson v. Lee Optical in 1955, the
had essentially given up entirely the task of reviewing economic
under the Due Process Clause. Today, the Court will uphold as
against a due process challenge any economic regualtion that a
legislature might rationally conclude would advance a legitimate
interest (the so-called "RATIONAL BASIS TEST"), even if the legislature
was most likely motivated by illegitimate reasons (such as simply
paying back an industry that contributed substantially to their
A shopper in a
Chicago Costco reads information
about the retailer's six
models of caskets.
(Photo: Nam Y.
Although challenges to state
economic regulation have
little success at the Supreme Court level since Williamson, better luck is
sometimes had in the lower federal courts. For example, in Craigmiles v Giles, 312 F 3rd 220
(2002), the Sixth Circuit struck down a Tennessee law, pushed by that
state's funeral directors, that prohibited anyone not having a state
funeral director's license from selling caskets to state customers at
"the time of need." The Court saw the law as economic
protectionism (designed to limit price competition from national
discount chains such as Costco) that failed to meet even the
deferential rational basis test. On the other hand, a
nearly identical Oklahoma law was upheld by the Tenth Circuit in Powers v Harris
(8/23/2004). The Tenth Circuit concluded the law was "rationally
related to the legitimate state interest of intrastate industry
THE FOUR HORSEMEN OF THE
Four conservative justices
(the so-called "Four Horseman of the Apocalypse") insisted that the
Constitution protected the "liberty of contract" and helped to strike
down numerous pieces of economic legislation (including minimum wage
laws and FDR's "New Deal" programs) in the 1920s and early 1930s.
All four justices dissented in Nebbia
v New York (1934), when the tide turned in favor of upholding
State shall...deprive any
life, liberty, or property, without due process of law.
|Historical Background of the Lochner Case
In New York in the late
1800s, bakers were paid by the day, not by the hour. ($2 per day
was a typical wage.) Unsurprisingly, bakers favored shorter work
days, as they assumed that they would continue to receive their current
pay levels whether they worked 10 hours or they worked 14 hours.
They also believed that long work hours increased their risk of
developing various lung diseases. A bill, supported by bakers, to
reduce the workday for bakers to 10 hours was narrowly defeated in the
New York Assembly in 1887. By the mid-1890s, larger bakeries in
New York were unionized and generally adopted 60-hour work weeks.
The large bakeries, however, faced competition from smaller bakeries
which demanded longer hours from their employees (the employees often
were required to sleep in or near the bakeries). While unionized
bakers continued to lobby for a ten-hour law, a muckraking New York
Press reporter published stories about unsanitary conditions in smaller
bakeries, including accounts of finding open sewers and cockroaches on
baking utensils. A state factory inspector's report confirmed
findings of unsanitary conditions and led to growing public support for
a law regulating bakeries. The Bakeshop Act of 1897, approved
unanimously but challenged in the Lochner
case, included sections regulating sanitary conditions (e.g., no
sleeping in a bake room) and a section strongly supported by the
baker's union, establishing the 60-hour maximum hour maximum work week
Utica bakery owner Joseph Lochner had a longstanding dispute with the
baker's union. Union officials persuaded state factory inspectors
to file a complaint against Lochner for employing a baker named Aman
Schmitter for more than sixty hours in one week. At a trial in
February 1903, Lochner offered no defense, was found guilty of
violating the Bakeshop Act and sentenced to pay a fine of $50.
Lochner appealed, arguing the law was unconstitutional.
1. Would the Lochner
Court likely have recognized a constitutional right to contract to sell
drugs or sexual services? Why not? What result if a state had
to limit the hours that coal miners could work underground?
2. Do you find it
that three years after Lochner a unanimous Court upheld an
law setting a maximum number of hours that female employees might work?
3. Look closely at
Holmes dissent in Lochner. Why might Judge Richard Posner
have characterized the Holmes dissent as "the best Supreme Court
have contributed to the Court's backing away from the Lochner
of cases in the 1930s?
5. Some have
that by the time of Williamson the Court had gone too far in
direction of deference to state judgments about economic matters.
Do you agree? Should the Court insist that the justifications
in litigation to support economic legislation at least plausibly be the
justifications that motivated legislators to enact the law in question?
6. Is protecting the economic interests of a state industry (such
as the interest of funeral directors in having a monopoly on the sale
of "time-of-need" caskets) a legitimate state interest?
Oliver Wendell Holmes
The 14th Amendment
does not enact Mr. Herbert Spencer's Social Statics.... Some
of these laws embody convictions or prejudices which judges are likely
to share. Some may not. But a Constitution is not intended to embody a
particular economic theory, whether of paternalism and the organic
of the citizen to the state or of laissez faire. It is made for
of fundamentally differing views, and the accident of our finding
opinions natural and familiar, or novel, and even shocking, ought not
conclude our judgment upon the question whether statutes embodying them
conflict with the Constitution of the United States.
--From the dissent of
Oliver Wendell Holmes in Lochner v
New York (1905)