Lochner era
Encyclopedia
The Lochner era is a period in American legal history in which the Supreme Court of the United States
tended to strike down laws held to be infringing on economic liberty or private contract rights, and takes its name from a 1905 case, Lochner v. New York
. The beginning of the period is usually marked earlier, with the Court's decision in Allgeyer v. Louisiana
(1897), and its end marked forty years later in the case of West Coast Hotel Co. v. Parrish
(1937), which overturned an earlier Lochner-era decision. The Lochner era coincided roughly with the Second Industrial Revolution
.
The Supreme Court during the Lochner era has been described as "play[ing] a judicially activist
but politically conservative role." The Court invalidated state and federal legislation that inhibited business or otherwise limited the free market
, including laws on minimum wage, child labor, regulations of banking, insurance and transportation industries. Originating in the late 19th century, the Lochner era carried into the mid-1930s, when the Court's tendency to invalidate labor and market regulations came into direct conflict with Congress'
regulatory efforts to bring about economic recovery as part of the New Deal
.
, recounts the longstanding "progressive" view which became dominant in the decades following the New Deal:
Cass R. Sunstein, in an influential essay from 1987, describes the Lochner era as the result of a Court which believed market ordering under common law
to be part of nature rather than a legal construct and sought to preserve natural distribution of wealth against redistributive regulations:
Howard Gillman, in the book The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence, argues that the decisions of the era can be understood as adhering to a constitutional tradition rooted in the Founding Fathers
' conception of appropriate and inappropriate policymaking in a commercial republic. A central tenet of this tradition was that government should not exhibit favoritism or hostility toward market competitors (referred to as "class legislation", which Gillman equates with the modern notion of special interests
), and that it should exercise its police power
in a neutral manner so as not to benefit one class over another. This would make for a faction free republic, with the underlying assumption that the American economy could provide for all citizens and social dependency as had been observed in Europe could be avoided. These ideas, according to Gillman, had been inherited by the Lochnerian judges, whose jurisprudence reflected a good faith attempt to preserve a tradition that was increasingly being undermined by changing industrial relations in the United States.
This view has been criticized by David E. Bernstein, who claims that Gillman overstates the importance of class legislation on the jurisprudence. Bernstein has also criticized Sunstein's thesis, arguing in part that the notion of a common law baseline runs counter to numerous decisions in which the Court upheld statutory replacements of common law rules, notably in the field of workers' compensation
. Bernstein's view is that the Lochner era demonstrates "the Justices' belief that Americans had fundamental unenumerated constitutional rights" which were protected by the due process clause of the Fourteenth Amendment. In discovering these rights, "[t]he Justices had a generally historicist outlook, seeking to discover the content of fundamental rights through an understanding of which rights had created and advanced liberty among the Anglo-American people."
to invalidate legislation held to infringe on economic liberties, particularly the freedom of contract
. Between 1899 and 1937, the Supreme Court held 159 statutes unconstitutional under the due process and equal protection
clauses (excluding civil rights cases), and another 25 were struck down in reference to the due process clause coupled with some other provision. The Court's interpretation of the due process clause during the Lochner era has been dubbed in contemporary scholarship as "economic substantive due process". This doctrine can be divided into three elements:
In addition, the Court limited the power of the federal government under the Commerce Clause
; restricting Congress' ability to regulate industrial production. It also showed a marked hostility towards labor unions and consistently voted to invalidate laws that aided union activity. This body of doctrine has been characterized as "laissez-faire
constitutionalism", although this has been contested.
It should also be noted that two early cases that use substantive due process to protect civil liberties
, Pierce v. Society of Sisters
and Meyer v. Nebraska
, were decided during the Lochner era. Michael J. Phillips writes that "due largely to their 'familial' nature, these two cases helped legitimize the modern substantive due process decisions creating the constitutional right to privacy."
(1887) is often regarded as precursor to the Lochner era and the doctrine of economic substantive due process. Mugler had been convicted of violating a Kansas statute prohibiting the manufacture and sale of alcohol. He argued in part that the statute was unconstitutional under the due process clause of the Fourteenth Amendment. The Court affirmed the conviction, but stated its willingness to review the legitimacy of a state using its police power as potentially incompatible with substantive rights guaranteed by the due process clause:
The Court first held that the due process clause of the Fourteenth Amendment protected an individual's "liberty to contract" in the 1897 case of Allgeyer v. Louisiana
. In a unanimous opinion, the Court stated that Fourteenth Amendment liberty includes:
In the era's namesake case of Lochner v. New York
(1905), the Court struck down a New York State law limiting the number of hours bakers could work on the grounds that it violated the bakers' "right to contract". In the majority opinion in Lochner, Justice Rufus Peckham stated:
The Lochner era is usually considered to have ended with the overturning of Adkins v. Children's Hospital in the 1937 case of West Coast Hotel Co. v. Parrish
. An often-cited account explaining the ending is that the Supreme Court bowed to political pressure after President Roosevelt's announcement of a legislative proposal to enlarge the Court. The Judicial Procedures Reform Bill of 1937 would have allowed for the President to appoint an additional Justice, up to a maximum of six, for every sitting member over the age of 70½. The official reason for the bill was that the older Justices were unable to handle the increasing workload; but it was widely recognized that the real purpose was to obtain favorable rulings on New Deal
legislation that had previously been ruled unconstitutional. In West Coast Hotel, Justice Owen Roberts, who had previously voted to strike down similar legislation, joined the wing more sympathetic to the New Deal and upheld a Washington state law setting a minimum wage for women. Roberts' move came to be known as "the switch in time that saved nine" as Roosevelt's court-packing plan ultimately failed.
This traditional interpretation of events has been disputed. Barry Cushman, in the book Rethinking the New Deal Court: The Structure of a Constitutional Revolution, argues that the real shift occurred in Nebbia v. New York
(1934), in which the Court by a one-vote majority upheld state legislation regulating the price of milk. In Cushman's view, the laissez-faire constitutionalism that had been the distinctive feature of the Lochner era eroded after World War I
as high unemployment made the regulation of labor relations an increasingly pressing concern. This development was accompanied by an evolving view of Congress' power under the Commerce Clause
to regulate in the public interest. Gradually, the Court came to view the regulation of a previously delimited private sphere as a valid exercise of police power, and the decision in Nebbia signaled the undoing of a doctrinal distinction between public and private enterprise that had been the underlying principle for a free market approach to constitutional interpretation. Cushman contends, then, that the true cause for the demise of the Lochner era was not short-term political considerations by the Court, but an evolving judicial perspective on the validity of governmental regulation.
Alan J. Meese has pointed out that several members of the Court, even after the decision in West Coast Hotel, continued to apply Lochnerian premises. The decision did not overrule Lochner v. New York or any other liberty of occupation case not involving an attempt to require employers to pay a subsistence wage. It was not until Roosevelt began appointing new Justices, starting with Hugo Black
in August 1937, that a majority was formed which completely rejected Lochnerian reasoning. In United States v. Carolene Products Co.
(1938), the Court held that the constitutional authority of state and federal legislatures over economic matters is plenary, and that laws passed to regulate such matters are entitled to a presumption of constitutionality. Black, in a 1949 opinion upholding a state law prohibiting union discrimination, wrote that the Court by then had repudiated "the Allgeyer-Lochner-Adair-Coppage constitutional doctrine".
and is generally perceived as a regrettable period in the history of the Supreme Court. Barbara J. Flagg has identified two broad strains of criticism: the Court's failure to engage in meaningful analysis of existing unequal distributions of wealth and power, and its tendency to substitute its own judgement for that of the legislatures. Criticism among conservative scholars has focused on the use of substantive due process as a vehicle for protecting rights not explicitly mentioned in the Constitution. Robert Bork
has called the Court's decision in Lochner v. New York an "abomination" that "lives in the law as a symbol, indeed the quintessence of judicial usurpation of power."
The Lochner era has, however, found support among libertarian scholars who defend the Court for securing property rights and economic freedom. Richard A. Epstein has contested the widespread allegation of judicial activism, stating that "[t]he conceptual defense of the Lochner era is much stronger on structural grounds than its manifold critics commonly suppose." Michael J. Phillips, in the book The Lochner Court, Myth and Reality, makes the case that the conventional view of the Lochner era as deeply reactionary is misguided and that the Court's "occasional exercises of economic activism were not entirely, or even mainly, bad things." In Rehabilitating Lochner, David Bernstein
argues that many of the civil liberties and civil rights innovations of the post-New Deal Court actually had their origins in Lochner era cases that have been forgotten or misinterpreted.
The Lochner era has notably been spotlighted by a number of non-American legal authorities as a cautionary tale of judicial overreaching, including Arthur Chaskalson
, Antonio Lamer
and Aharon Barak
.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
tended to strike down laws held to be infringing on economic liberty or private contract rights, and takes its name from a 1905 case, Lochner v. New York
Lochner v. New York
Lochner vs. New York, , was a landmark United States Supreme Court case that held a "liberty of contract" was implicit in the due process clause of the Fourteenth Amendment. The case involved a New York law that limited the number of hours that a baker could work each day to ten, and limited the...
. The beginning of the period is usually marked earlier, with the Court's decision in Allgeyer v. Louisiana
Allgeyer v. Louisiana
Allgeyer v. Louisiana, , was a landmark United States Supreme Court case in which a unanimous court struck down a Louisiana statute on grounds that it violated an individual's "liberty to contract." This was the first case in which the Supreme Court interpreted the word liberty in the Due Process...
(1897), and its end marked forty years later in the case of West Coast Hotel Co. v. Parrish
West Coast Hotel Co. v. Parrish
West Coast Hotel Co. v. Parrish, , was a decision by the United States Supreme Court upholding the constitutionality of minimum wage legislation enacted by the State of Washington, overturning an earlier decision in Adkins v. Children's Hospital,...
(1937), which overturned an earlier Lochner-era decision. The Lochner era coincided roughly with the Second Industrial Revolution
Second Industrial Revolution
The Second Industrial Revolution, also known as the Technological Revolution, was a phase of the larger Industrial Revolution corresponding to the latter half of the 19th century until World War I...
.
The Supreme Court during the Lochner era has been described as "play[ing] a judicially activist
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
but politically conservative role." The Court invalidated state and federal legislation that inhibited business or otherwise limited the free market
Free market
A free market is a competitive market where prices are determined by supply and demand. However, the term is also commonly used for markets in which economic intervention and regulation by the state is limited to tax collection, and enforcement of private ownership and contracts...
, including laws on minimum wage, child labor, regulations of banking, insurance and transportation industries. Originating in the late 19th century, the Lochner era carried into the mid-1930s, when the Court's tendency to invalidate labor and market regulations came into direct conflict with Congress'
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
regulatory efforts to bring about economic recovery as part of the New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
.
Origins
The causes of the Lochner era have been the subject of debate. Michael J. Lindsay, writing in the Harvard Law ReviewHarvard Law Review
The Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School.-Overview:According to the 2008 Journal Citation Reports, the Review is the most cited law review and has the second-highest impact factor in the category "law" after the...
, recounts the longstanding "progressive" view which became dominant in the decades following the New Deal:
According to progressive scholars, American judges steeped in laissez-faire economic theory, who identified with the nation’s capitalist class and harbored contempt for any effort to redistribute wealth or otherwise meddle with the private marketplace, acted on their own economic and political biases to strike down legislation that threatened to burden corporations or disturb the existing economic hierarchy. In order to mask this fit of legally unjustified, intellectually dishonest judicial activism, the progressive interpretation runs, judges invented novel economic “rights” — most notably “substantive due process” and “liberty of contract” — that they engrafted upon the Due Process Clause of the Fourteenth Amendment.
Cass R. Sunstein, in an influential essay from 1987, describes the Lochner era as the result of a Court which believed market ordering under common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
to be part of nature rather than a legal construct and sought to preserve natural distribution of wealth against redistributive regulations:
The Lochner Court required government neutrality and was skeptical of government “intervention”; it defined both notions in terms of whether the state had threatened to alter the common law distribution of entitlements and wealth, which was taken to be a part of nature rather than a legal construct. Once the common law system came to be seen as a product of legal rules, the baseline from which constitutional decisions were made had to shift. When the Lochner framework was abandoned in West Coast Hotel, the common law system itself appeared to be a subsidy to employers. The West Coast Hotel Court thus adopted an alternative baseline and rejected Lochner era understandings of neutrality and action.
Howard Gillman, in the book The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence, argues that the decisions of the era can be understood as adhering to a constitutional tradition rooted in the Founding Fathers
Founding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...
' conception of appropriate and inappropriate policymaking in a commercial republic. A central tenet of this tradition was that government should not exhibit favoritism or hostility toward market competitors (referred to as "class legislation", which Gillman equates with the modern notion of special interests
Lobbying
Lobbying is the act of attempting to influence decisions made by officials in the government, most often legislators or members of regulatory agencies. Lobbying is done by various people or groups, from private-sector individuals or corporations, fellow legislators or government officials, or...
), and that it should exercise its police power
Police power
In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants...
in a neutral manner so as not to benefit one class over another. This would make for a faction free republic, with the underlying assumption that the American economy could provide for all citizens and social dependency as had been observed in Europe could be avoided. These ideas, according to Gillman, had been inherited by the Lochnerian judges, whose jurisprudence reflected a good faith attempt to preserve a tradition that was increasingly being undermined by changing industrial relations in the United States.
This view has been criticized by David E. Bernstein, who claims that Gillman overstates the importance of class legislation on the jurisprudence. Bernstein has also criticized Sunstein's thesis, arguing in part that the notion of a common law baseline runs counter to numerous decisions in which the Court upheld statutory replacements of common law rules, notably in the field of workers' compensation
Workers' compensation
Workers' compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence...
. Bernstein's view is that the Lochner era demonstrates "the Justices' belief that Americans had fundamental unenumerated constitutional rights" which were protected by the due process clause of the Fourteenth Amendment. In discovering these rights, "[t]he Justices had a generally historicist outlook, seeking to discover the content of fundamental rights through an understanding of which rights had created and advanced liberty among the Anglo-American people."
Jurisprudence
The constitutional jurisprudence of the Lochner era is marked by the use of substantive due processSubstantive due process
Substantive due process is one of the theories of law through which courts enforce limits on legislative and executive powers and authority...
to invalidate legislation held to infringe on economic liberties, particularly the freedom of contract
Freedom of contract
Freedom of contract is the freedom of individuals and corporations to form contracts without government restrictions. This is opposed to government restrictions such as minimum wage, competition law, or price fixing...
. Between 1899 and 1937, the Supreme Court held 159 statutes unconstitutional under the due process and equal protection
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
clauses (excluding civil rights cases), and another 25 were struck down in reference to the due process clause coupled with some other provision. The Court's interpretation of the due process clause during the Lochner era has been dubbed in contemporary scholarship as "economic substantive due process". This doctrine can be divided into three elements:
- 1. The due process clauses of the FifthFifth Amendment to the United States ConstitutionThe Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
and Fourteenth AmendmentFourteenth Amendment to the United States ConstitutionThe Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
s, which limits the federal and state government from making laws that deprive "any person of life, liberty, or property without due process of law", requires stringent protection for economic liberties, in particular the liberty to "purchase and sell labor".
- 2. These liberties are not absolute and can be regulated for a limited set of purposes, including the "safety, health, morals, and general welfare of the public."
- 3. The Court may examine legislation in order to ensure that the means used by the legislature to further its legitimate purposes are well-designed to achieve those purposes and not unduly restrictive of market choices.
In addition, the Court limited the power of the federal government under the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
; restricting Congress' ability to regulate industrial production. It also showed a marked hostility towards labor unions and consistently voted to invalidate laws that aided union activity. This body of doctrine has been characterized as "laissez-faire
Laissez-faire
In economics, laissez-faire describes an environment in which transactions between private parties are free from state intervention, including restrictive regulations, taxes, tariffs and enforced monopolies....
constitutionalism", although this has been contested.
It should also be noted that two early cases that use substantive due process to protect civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
, Pierce v. Society of Sisters
Pierce v. Society of Sisters
Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, , was an early 20th century United States Supreme Court decision that significantly expanded coverage of the Due Process Clause in the Fourteenth Amendment to the United States Constitution. The case has been cited as a precedent in...
and Meyer v. Nebraska
Meyer v. Nebraska
Meyer v. Nebraska, 262 U.S. 390 , was a U.S. Supreme Court case that held that a 1919 Nebraska law restricting foreign-language education violated the Due Process clause of the Fourteenth Amendment.-Context and legislation:...
, were decided during the Lochner era. Michael J. Phillips writes that "due largely to their 'familial' nature, these two cases helped legitimize the modern substantive due process decisions creating the constitutional right to privacy."
Beginning
The case of Mugler v. KansasMugler v. Kansas
Mugler v. Kansas, , was an important United States Supreme Court case in which the 8 to 1 majority opinion of Associate Justice John Marshall Harlan—and the lone, partial dissent by Associate Justice Stephen J. Field—laid the foundation for the U.S...
(1887) is often regarded as precursor to the Lochner era and the doctrine of economic substantive due process. Mugler had been convicted of violating a Kansas statute prohibiting the manufacture and sale of alcohol. He argued in part that the statute was unconstitutional under the due process clause of the Fourteenth Amendment. The Court affirmed the conviction, but stated its willingness to review the legitimacy of a state using its police power as potentially incompatible with substantive rights guaranteed by the due process clause:
- If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.
The Court first held that the due process clause of the Fourteenth Amendment protected an individual's "liberty to contract" in the 1897 case of Allgeyer v. Louisiana
Allgeyer v. Louisiana
Allgeyer v. Louisiana, , was a landmark United States Supreme Court case in which a unanimous court struck down a Louisiana statute on grounds that it violated an individual's "liberty to contract." This was the first case in which the Supreme Court interpreted the word liberty in the Due Process...
. In a unanimous opinion, the Court stated that Fourteenth Amendment liberty includes:
- (...) the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.
In the era's namesake case of Lochner v. New York
Lochner v. New York
Lochner vs. New York, , was a landmark United States Supreme Court case that held a "liberty of contract" was implicit in the due process clause of the Fourteenth Amendment. The case involved a New York law that limited the number of hours that a baker could work each day to ten, and limited the...
(1905), the Court struck down a New York State law limiting the number of hours bakers could work on the grounds that it violated the bakers' "right to contract". In the majority opinion in Lochner, Justice Rufus Peckham stated:
- In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?
Timeline and illustrative cases
The following Supreme Court decisions are usually considered to be representative of the Lochner era:- Allgeyer v. LouisianaAllgeyer v. LouisianaAllgeyer v. Louisiana, , was a landmark United States Supreme Court case in which a unanimous court struck down a Louisiana statute on grounds that it violated an individual's "liberty to contract." This was the first case in which the Supreme Court interpreted the word liberty in the Due Process...
(1897), striking down state legislation prohibiting foreign corporations from doing business in the state - Lochner v. New YorkLochner v. New YorkLochner vs. New York, , was a landmark United States Supreme Court case that held a "liberty of contract" was implicit in the due process clause of the Fourteenth Amendment. The case involved a New York law that limited the number of hours that a baker could work each day to ten, and limited the...
(1905), striking down state legislation limiting weekly working hours - Adair v. United StatesAdair v. United StatesAdair v. United States, , is a United States Supreme Court case which upheld "yellow-dog" contracts that forbade workers from joining labor unions. The decision reaffirmed the doctrine of freedom of contract which was first recognized by the Court in Allgeyer v. Louisiana...
(1908), striking down federal legislation prohibiting railroad companies from demanding that a worker not join a labor union as a condition for employment ("yellow-dog contractYellow-dog contractA yellow-dog contract is an agreement between an employer and an employee in which the employee agrees, as a condition of employment, not to be a member of a labor union...
") - Coppage v. KansasCoppage v. KansasCoppage v. Kansas, 236 U.S. 1 , was a U.S. Supreme Court case that held that employers could make contracts that forbid employees from joining unions. These types of contracts were called yellow-dog contracts...
(1915), striking down state legislation prohibiting yellow-dog contracts - Adams v. TannerAdams v. TannerAdams v. Tanner, 244 U.S. 590 , is a US Supreme Court case, which held that a Washington state law that prohibited employment agencies was unconstitutional.-Facts:...
(1917), striking down state legislation preventing privately owned employment agencies from assessing fees for their services - Hammer v. DagenhartHammer v. DagenhartHammer v. Dagenhart, 247 U.S. 251 , was a United States Supreme Court decision involving the power of Congress to enact child labor laws...
(1918), striking down federal regulation of child labor - Duplex Printing Press Co. v. DeeringDuplex Printing Press Co. v. DeeringDuplex Printing Press Co. v. Deering, 41 S. Ct. 172 is a United States Supreme Court case which examined the labor provisions of the Clayton Antitrust Act and reaffirmed the prior ruling in Loewe v. Lawlor that a secondary boycott was an illegal restraint on trade...
(1921), construing federal legislation not to exempt labor unions from antitrustAntitrustThe United States antitrust law is a body of laws that prohibits anti-competitive behavior and unfair business practices. Antitrust laws are intended to encourage competition in the marketplace. These competition laws make illegal certain practices deemed to hurt businesses or consumers or both,...
lawsuits - Bailey v. Drexel Furniture Co. (1922), invalidating a federal tax on interstate commerce by employers hiring children
- Adkins v. Children's HospitalAdkins v. Children's HospitalAdkins v. Children's Hospital, , is a Supreme Court opinion holding that federal minimum wage legislation for women was an unconstitutional infringement of liberty of contract, as protected by the due process clause of the Fifth Amendment....
(1923), striking down federal legislation mandating a minimum wage level for women and children in the District of Columbia - United States v. ButlerUnited States v. ButlerUnited States v. Butler, , was a case in which the Supreme Court of the United States ruled that the processing taxes instituted under the 1933 Agricultural Adjustment Act were unconstitutional...
(1936), construing congressional taxing power to invalidate the Agricultural Adjustment ActAgricultural Adjustment ActThe Agricultural Adjustment Act was a United States federal law of the New Deal era which restricted agricultural production by paying farmers subsidies not to plant part of their land and to kill off excess livestock... - Carter v. Carter Coal CompanyCarter v. Carter Coal CompanyCarter v. Carter Coal Company, 298 U.S. 238 , is a United States Supreme Court decision interpreting the Commerce Clause of the United States Constitution, which permits the United States Congress to "regulate Commerce.....
(1936), striking down federal legislation regulating the coal industry
Ending
The Lochner era is usually considered to have ended with the overturning of Adkins v. Children's Hospital in the 1937 case of West Coast Hotel Co. v. Parrish
West Coast Hotel Co. v. Parrish
West Coast Hotel Co. v. Parrish, , was a decision by the United States Supreme Court upholding the constitutionality of minimum wage legislation enacted by the State of Washington, overturning an earlier decision in Adkins v. Children's Hospital,...
. An often-cited account explaining the ending is that the Supreme Court bowed to political pressure after President Roosevelt's announcement of a legislative proposal to enlarge the Court. The Judicial Procedures Reform Bill of 1937 would have allowed for the President to appoint an additional Justice, up to a maximum of six, for every sitting member over the age of 70½. The official reason for the bill was that the older Justices were unable to handle the increasing workload; but it was widely recognized that the real purpose was to obtain favorable rulings on New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
legislation that had previously been ruled unconstitutional. In West Coast Hotel, Justice Owen Roberts, who had previously voted to strike down similar legislation, joined the wing more sympathetic to the New Deal and upheld a Washington state law setting a minimum wage for women. Roberts' move came to be known as "the switch in time that saved nine" as Roosevelt's court-packing plan ultimately failed.
This traditional interpretation of events has been disputed. Barry Cushman, in the book Rethinking the New Deal Court: The Structure of a Constitutional Revolution, argues that the real shift occurred in Nebbia v. New York
Nebbia v. New York
Nebbia v. New York, 291 U.S. 502 , was a case in which the Supreme Court of the United States determined whether the state of New York could regulate the price of milk for dairy farmers, dealers, and retailers....
(1934), in which the Court by a one-vote majority upheld state legislation regulating the price of milk. In Cushman's view, the laissez-faire constitutionalism that had been the distinctive feature of the Lochner era eroded after World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
as high unemployment made the regulation of labor relations an increasingly pressing concern. This development was accompanied by an evolving view of Congress' power under the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
to regulate in the public interest. Gradually, the Court came to view the regulation of a previously delimited private sphere as a valid exercise of police power, and the decision in Nebbia signaled the undoing of a doctrinal distinction between public and private enterprise that had been the underlying principle for a free market approach to constitutional interpretation. Cushman contends, then, that the true cause for the demise of the Lochner era was not short-term political considerations by the Court, but an evolving judicial perspective on the validity of governmental regulation.
Alan J. Meese has pointed out that several members of the Court, even after the decision in West Coast Hotel, continued to apply Lochnerian premises. The decision did not overrule Lochner v. New York or any other liberty of occupation case not involving an attempt to require employers to pay a subsistence wage. It was not until Roosevelt began appointing new Justices, starting with Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
in August 1937, that a majority was formed which completely rejected Lochnerian reasoning. In United States v. Carolene Products Co.
United States v. Carolene Products Co.
United States v. Carolene Products Company, 304 U.S. 144 , was an April 25, 1938 decision by the United States Supreme Court. The case dealt with a federal law that prohibited filled milk from being shipped in interstate commerce...
(1938), the Court held that the constitutional authority of state and federal legislatures over economic matters is plenary, and that laws passed to regulate such matters are entitled to a presumption of constitutionality. Black, in a 1949 opinion upholding a state law prohibiting union discrimination, wrote that the Court by then had repudiated "the Allgeyer-Lochner-Adair-Coppage constitutional doctrine".
Assessment
The Lochner era has been widely criticized for judicial activismJudicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
and is generally perceived as a regrettable period in the history of the Supreme Court. Barbara J. Flagg has identified two broad strains of criticism: the Court's failure to engage in meaningful analysis of existing unequal distributions of wealth and power, and its tendency to substitute its own judgement for that of the legislatures. Criticism among conservative scholars has focused on the use of substantive due process as a vehicle for protecting rights not explicitly mentioned in the Constitution. Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
has called the Court's decision in Lochner v. New York an "abomination" that "lives in the law as a symbol, indeed the quintessence of judicial usurpation of power."
The Lochner era has, however, found support among libertarian scholars who defend the Court for securing property rights and economic freedom. Richard A. Epstein has contested the widespread allegation of judicial activism, stating that "[t]he conceptual defense of the Lochner era is much stronger on structural grounds than its manifold critics commonly suppose." Michael J. Phillips, in the book The Lochner Court, Myth and Reality, makes the case that the conventional view of the Lochner era as deeply reactionary is misguided and that the Court's "occasional exercises of economic activism were not entirely, or even mainly, bad things." In Rehabilitating Lochner, David Bernstein
David Bernstein (law professor)
David E. Bernstein is Foundation Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995....
argues that many of the civil liberties and civil rights innovations of the post-New Deal Court actually had their origins in Lochner era cases that have been forgotten or misinterpreted.
The Lochner era has notably been spotlighted by a number of non-American legal authorities as a cautionary tale of judicial overreaching, including Arthur Chaskalson
Arthur Chaskalson
Arthur Chaskalson, is a former President of the Constitutional Court of South Africa and Chief Justice of South Africa...
, Antonio Lamer
Antonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
and Aharon Barak
Aharon Barak
Aharon Barak is a Professor of Law at the Interdisciplinary Center in Herzliya and a lecturer in law at the Hebrew University of Jerusalem, the Yale Law School, and the University of Toronto Faculty of Law....
.
See also
- History of the Supreme Court of the United StatesHistory of the Supreme Court of the United StatesThe following is a history of the Supreme Court of the United States, organized by Chief Justice. The Supreme Court of the United States is the only court specifically established by the Constitution of the United States, implemented in 1789; under the Judiciary Act of 1789, the Court was to be...
- History of labor law in the United StatesHistory of labor law in the United StatesHistory of labor law in the United States refers to the development of US labor law, or legal relations between workers, their employers and trade unions in the United States of America.-Nineteenth century:*Thirteenth Amendment...