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This Day in Labor History: April 17, 1905

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On April 17, 1905, the Supreme Court, led by Chief Justice Melville Fuller, decided the Lochner v. New York case, overturning a New York law limiting the hours bakers could work to sixty a week. This landmark case gave official SCOTUS sanction to the idea of free contract between employer and employee. Calling such laws, “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract,” the Court effectively ruled that corporations have full rights to set any conditions of employment they chose. This classic statement of the Gilded Age has inspired conservatives and outraged liberals ever since.

By 1900, the rise of the Progressive movement and an increasingly aggressive American working class that ranged from conservative organizations like the American Federation to Labor to radicals like the Industrial Workers of the World led to a growing amount of state and local laws to regulate labor. The rank exploitation of Gilded Age capitalism had increasingly moved large swaths of Americans, including a growing number in the middle and upper classes, to understand that basic protections must be granted if the nation was to remain socially stable and if future generations would grow up to be good moral Americans.

And this attitude, while often paternalistic toward workers, had its benefits as workers really struggled to live lives of basic dignity in the Gilded Age. The combination of extremely low wages, very dangerous work, strikes met with state violence, and an economy constantly in turmoil thanks to the corruption of politicians and illegal machinations of capitalists meant that the American workforce had few options to improve their lives. They tried but usually failed because of the combination of overwhelming combined state and corporate resistance, something Lochner would reinforce. Accessing middle-class support for basic rights was necessary in order to achieve even the most rudimentary improvements in workers’ lives.

New York was one of these states with a strong Progressive movement. In 1895, the state passed the Bakeshop Act. This law regulated the sanitary conditions of bakeries (a prelude to the national Pure Food and Drug Act that would become law in 1906) and read “no employee shall be … permitted to work in a biscuit, bread, or cake bakery or confectionery establishment more than sixty hours in any one week,” as well as more than ten hours in a day. In 1899, Joseph Lochner, a baker in Utica, was indicted for violating the act by requiring employees to labor for more than 60 hours. He drew a $25 fine. Not learning his lesson, he was charged again in 1901; this time the state fined him $50 ($1400 in 2014 dollars) and sentenced him to up to fifty days in jail if he did not pay the fine.

lochner

Joseph Lochner, standing on right

Lochner appealed this second fine, attempting to overturn the law. The Appellate Division of the New York Supreme Court upheld the law by a 3-2 vote and then the New York Court of Appeals, where he lost 4-3. The Supreme Court was divided on this law. But by a 5-4 decision, the Court ruled in favor of Lochner and overturned the Bakeshop Act.

John Marshall Harlan, the best justice of the era and often the only one with the welfare of the average citizen in mind, wrote one of his classic dissensions. He wrote that it was “plain that this statute was enacted to protect the physical well-being of those who work in bakery and confectionery establishments.” He went on, “If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere.” Oliver Wendell Holmes also dissented, using his ideology of limited court activism to accuse the majority of asserting their own economic preferences into the Constitution where they did not belong.

The majority in fact did that, but didn’t care. Rufus Peckham wrote the majority opinion. He countered the argument of New York that “has a right to safeguard a citizen against his own lack of knowledge” by stating that citizens “are … able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action.” And this really sums up the doctrine of free contract. Theoretically this sounds like the language of freedom because it places control over one’s life in his or her own hands. But of course such an analysis, which libertarians love today, completely ignores power relations. No baker could assert his own rights because it was the employers who constricted those rights. When the option is a) work 65 hours or b) don’t eat, that’s not a freedom of choice.

Moreover, Peckham went into the health of working in a bakery, writing the law was unnecessary because “To the common understanding, the trade of a baker has never been regarded as an unhealthy one.” Of course, such a judgment from a judge should not matter when deciding the constitutionality of the law–the question is whether it is constitutional, not whether the judge personally agrees on the merits of the law. But of course the Supreme Court has long operated as little more than the assertion of personal political position as constitutional principle, a problem which plagues the Court today. Moreover, the question of health and work in the Gilded Age was one of huge importance because work was so starkly unhealthy. It’s entirely possible that compared to paint workers having their brains disintegrated through unbelievable levels of lead poisoning and radium workers dying from horrendous cancers that bakers didn’t have it so bad, but that doesn’t mean that working in unsanitary conditions for long hours did not have an effect on their health. Even when employers and states decided to something about workers dying or suffering grievous injuries on the job, it would take until the establishment of OSHA in 1970 before workplace health per se was really taken that seriously in the United States.

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Rufus Peckham

However, Lochner was also the peak of corporate rights superseding that of workers and the public. The Muller v. Oregon decision three years later carved out room in the freedom of contract ideology for hours limitations on women workers, which began to slowly build toward the principle of government regulating the workforce. From 1905 on, Lochner became the case that progressive labor activists such as Louis Brandeis sought to overturn. Yet this would be a long fight lasting until the New Deal, with the Court reviving the Lochner doctrine in the 1923 case Adkins v. Children’s Hospital, declaring a Washington DC law setting minimum wages for women and children unconstitutional.

Conservatives would like to return to a Lochner-era America today and are working hard to make sure that happens.

This is the 142nd post in this series. Previous posts are archived here.

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  • sleepyirv

    Holmes left many memorable turns of phrase in his time on the Court, but for my money nothing better than “the 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.”

    • PSP

      Even better when read along with “a constitution is not intended to embody a particular economic theory.”

  • Joe_JP

    his classic dissensions

    A lot of attention is given to Holmes’ dissent – e.g., Prof. Bernstein’s revisionist book has the Peckham knocking Holmes out on the cover — https://rehabilitatinglochner.files.wordpress.com/2010/11/lochner-final-600-3-1.jpg

    But, I think Harlan’s dissent is if anything more notable. Harlan accepted the liberty of contract, which we do today in various ways, but thought there was a reasonable basis for this law. The problem with the opinion is therefore its breadth, not its protection of substantive liberty at all.

    Peckham’s opinion also has a section that in effect would call into question much modern day employment law.

  • dilan

    Great summary. The last line is a little unfair– Lochner revisionism is, to my knowledge, very much a niche industry among conservatives (though it is big among libertarians). Bork hated Lochner. So does Scalia. Many social conservatives don’t like it because the same doctrines that gave us Lochner also gave us Griswold and Roe. (Indeed, many of the same justices that decided Lochner also decided Pierce v. Society of Sisters and Meyer v. Nebraska, which were precursors to Griswold.)

    I think it IS fair to say that conservatives favor the view of labor relations expressed by Peckham in Lochner. It isn’t, however, fair to say that they want to bring back the Lochner era itself. They dislike the Due Process Clause too much.

    • Cheerful

      I recall reading (somewhere) a conservative defense of Lochner on grounds that the actual purpose of the law was to put out of business small independent bakers, at the behest of the combined interests of larger bakers and unions. The general thrust of the argument was that courts should be in the business of protecting business from the predations of the regulatory state.

      On the other hand, I admit this probably remained a fringe opinion even among conservatives – I know of no very large movement attempting to resuscitate it.

    • Joe_JP

      the same doctrines that gave us Lochner also gave us Griswold and Roe.

      This is where a lot of the confusion and tediousness comes in. Just what is the “doctrine” of “Lochner”? Later, the “doctrine” was repeatedly understood to be a certain understanding of economic liberty.

      Harlan dissented in Lochner; he accepted substantive due process. He thought the law reasonable. This middle of the road path influenced his grandson in Griswold. How much “Lochner” leads to “Roe” (as compared to various other rulings) is also unclear.

      Indeed, many of the same justices that decided Lochner also decided Pierce v. Society of Sisters and Meyer v. Nebraska

      Two justices decided two of these cases; only one all three.

      • dilan

        Joe:

        You are basically contesting the position of mainstream legal scholarship, which draws a connection between various forms of substantive due process in that era.

        More importantly, though, conservatives believe this. They tend to view SDP as a loaded weapon.

  • dp

    Perhaps the most significant trait of our ultraconservative legal system is its willingness to enforce contracts of adhesion, no matter how onerous their terms, while pretending that their victims freely entered into them.

    • DrDick

      Conservatives cannot admit to the power of economic coercion or their entire philosophy disintegrates.

      • dilan

        What dp is talking about isn’t limited to conservatives. There are huge biases in favor of written agreements in our system– it is possible to get the most extreme and egregious agreements struck down as unconscionable or as forfeitures, but these doctrines are pretty narrow. Even an ostensible “liberal” judge is going to come into any contract case with a huge presumption in favor of upholding the agreement despite inequality of bargaining power.

  • Barry_D

    What’s also – well, odious about this decision is that at this time the Bill of Rights wasn’t applied that much to state governments, from what I’ve heard. The states were free to trample on people’s rights much more than now, but when the elites don’t like it, suddenly freedom is at stake.

  • Bruce Vail

    I’m puzzled that NY’s Bakeshop Act of 1895 was passed with a unanimous vote of the legislature (per Wikipedia). Republican Party was very strong in NY in that era, but they went along. I wondered whether anybody out there can shed some light on the politics of the vote?

    • That’s really interesting. I know nothing about it.

    • Hogan

      the Bakeshop Act was about much more than hours of work:

      In the late 19th and early 20th centuries, the majority of bakeries in New York City existed in tenement house cellars, because rents were low 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. Whatever sanitation facilities the tenements had—sinks, baths, and toilets—drained down to sewer pipes in the cellar, which leaked and smelled foul, especially in the heat generated by the baking ovens. Ceilings in cellar bakeries were as low as five and a half feet (about one and a half metres) above the floor, a height that would force most workers to stoop. There were few windows, so even in the daytime little light came in. In the summer workers suffered intense heat, and in winter even the heat of the oven could not keep the bakeries warm. The lack of adequate ventilation also meant that flour dust and fumes, natural in any baking, could not escape.

      Most people 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. In 1895 the typical bakery worker laboured 74 hours a week, and many worked even longer.

      To address these problems, the New York state assembly passed the New York Bakeshop Act (1895). Modeled on the British Bakehouse Regulation Act (1863), the law established minimum sanitation standards, including prohibitions against keeping domestic animals in bakeries and against workers sleeping in the bake room. A key provision was a clause limiting the working hours of biscuit, cake, and bread workers to 10 hours per day and 60 hours per week.

      • UserGoogol

        Makes sense. “Aimed for their heart and hit their stomach” in reverse.

    • Bruce Vail

      I looked it up and Thomas C. Platt was the Republican Party boss of NY at the time.

      Although not necessarily related, Platt had a very contentious relationship with the young Theodore Roosevelt, and New York political lore has it that Platt engineered his nomination as Vice President in 1900 to get the irksome TR out of Albany.

    • efgoldman

      Republican Party was very strong in NY in that era, but they went along.

      Weren’t most of the reformers of that era Republicans?

  • efgoldman

    When the option is a) work 65 hours or b) don’t eat, that’s not a freedom of choice.

    Rich and poor alike have the have the freedom to sleep under bridges.

    • Brett

      It pretty much is the libertarian response, although they usually phrase it as “Well, if you don’t want to work a shitty job as a baker, you should go open your own bakery! Or start your own business!”

      They never seem to examine exactly why Americans didn’t “just do this”. It’s not because 19th century Americans hated self-employment/business ownership and loved being employees – quite the opposite, considering the history of side businesses that even farmers engaged in. It was just less and less of an option, unless you wanted to push a cart, hustle on the streets, or open up some kind of ultra-competitive, small margin business like a restaurant.

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