[3.4.] Lochner v. New York.

 

The Supreme Court decided this case on April 7, 1905, at which time the Court included Oliver Wendell Holmes. The Court split five to four.

 

The majority decision relied on the due process clause of the 14th Amendment:

 

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.^[1]

 

“Due process” means “the legal procedures that have been established as a means of protecting individuals’ rights.”^[2]

 

The 14th amendment was ratified in 1868. Before this point, the individual rights enumerated in the Bill of Rights were protected only against federal intrusion, and thus citizens were still susceptible to numerous infringements by state and local governments. Consider the first amendment:

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.  (emphasis added)

 

But in the 20th Century, the Supreme Court began to construe the due process clause as prohibiting states from infringing against certain specific rights (especially freedom of the press, speech, assembly and religion) enumerated in the Bill of Rights.

 

Lochner is one example of this. It involved the right to free contract.

 

A New York state law called the Bakeshop Act prohibited employees of bakeries from working more than 10 hours a day or 60 hours a week. Joseph Lochner, the owner of a bakery in Utica, NY, was fined twice (once in 1899 and again in 1901) because he allowed an employee to work illegally long hours. He appealed the second conviction and the case made it to the Supreme Court.

 

 

[3.4.1.] The Majority Decision.

 

The Court overturned his conviction and found that the Bakeshop Act violated the due process clause.

 

In the majority opinion, Justice Rufus Peckham, referred specifically to the due process clause of the 14^th amendment:

 

Under that provision no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. (132)

 

That last clause indicates Peckham’s recognition that the contract rights protected under the 14^th amendment are not absolute, and that there are occasions on which a state does have authority to limit such rights. For example:

 

Contracts in violation of a statute, either of the Federal or state government, or a contract to let one’s property for immoral purposes, or to do any other unlawful act, could obtain no protection from the Federal Constitution, as coming under the liberty of person or of free contract. (132-33)

 

So, wrote Peckham, when a state does place limits on a citizen’s right to enter into an employment contact,

 

it becomes of great importance to determine which shall prevail—the right of the individual to labor for such time as he may choose, or the right of the State to prevent the individual from laboring or from entering into any contract to labor, beyond a certain time prescribed by the State. (133)

 

The attorney general of New York wrote in his brief in support of Lochner’s conviction that the state “has a right to safeguard a citizen against his own lack of knowledge.”

 

Peckham responded by saying that bakers are not wards of the state: they are “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. They are in no sense wards of the State.” (133)

 

 

[3.4.2.] Holmes’ Dissenting Opinion.

 

In his dissenting opinion, Holmes sounds very much like an anti-formalist and proto-realist (the prefix “proto” comes from the Greek “pro,” meaning first; to describe Holmes as a proto-realist is to imply that his realism is an early, not fully developed form of legal realism):

 

                General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. ... the word [“]liberty[”] in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion... (134, emphases added)

 

But this is not to say that the dominant opinion held by society should always dictate decisions in such cases; Holmes continues...

 

...unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people. (ibid.)

 

But the Bakeshop Act does not meet this condition:

 

It does not need research to show that no such sweeping condemnation can be passed upon the statute before us [viz., the Bakeshop Act]. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work.

 

Holmes also wrote that “a constitution is not intended to embody a particular economic theory.” (134) He held that in their decision, the Court’s majority had read into the Constitution economic ideas that just weren’t there. [A modern critic might make the same point by accusing the Court of judicial activism.] In this regard, he mentions:

 

laissez faire (df.): an economic policy that opposes government intervention into economic affairs, including contracts and trade, beyond what is absolutely necessary. [from the French phrase for “allow to do, allow to pass.”]

 

Herbert Spencer

·         1820-1903

·         popularizer of contemporary scientific discoveries

·         sought to apply scientific findings to questions regarding culture and ethics

·         coined the phrase “survival of the fittest” in his 1864 Principles of Biology

·         sometimes misunderstood to advocate “might makes right / survival of the fittest” ethics, especially as applied to justify capitalist economics

·         what Holmes probably had in mind was that the majority decision was motivated by the idea that individuals ought to be allowed to compete for the resources needed to survive without the intervention of the state, and that limiting the hours bakery employees can work is an unwarranted interference in the social mechanism by which the weak are eliminated and the “fittest” individuals survive.

 

 

[3.4.3.] Buck v. Bell (1927).

 

Holmes’ criticism of the Court majority might seem inconsistent with the opinion he wrote in a later Supreme Court case, that of Buck v. Bell.

 

In 1924, in the state of Virginia, a law was enacted that required sterilization for the mentally retarded. The purpose of the law was

 

eugenics (df.): (literally, “good birth”) the practice of controlling reproduction (negatively, through sterilization, or positively, through directed breeding) for the purpose of improving the genetic quality of subsequent generations.

 

A court ordered that Carrie Buck be sterilized, citing the (alleged) fact that she was “feeble-minded” and promiscuous (she had given birth to one illegitimate daughter, and she herself had been born out of wedlock).

 

Buck’s counsel argued that Virginia’s compulsory sterilization statute violated the due process clause of the 14^th amendment. Holmes describes the argument as follows:

 

The case comes here upon the contention that the statute authorizing the judgment is void under the Fourteenth Amendment as denying to the plaintiff in error due process of law and the equal protection of the laws. (135)

 

But Holmes did not agree. He wrote the majority opinion that upheld the Constitutionality of Virginia’s statue:

 

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. ... Three generations of imbeciles are enough. (136, emphasis added)

 

Carrie was sterilized, as were her mother and young daughter.

 

Virginia’s sterilization statute was eventually repealed, but not until 1974.

 

Paul Lombardo argued in a 1985 article that Carrie Buck was not actually “feeble-minded” at all and that she was originally committed to the Virginia State Colony for Epileptics and Feebleminded because of the embarrassment of her adoptive family: her pregnancy was the result of her having been raped by the nephew of her adoptive mother.

 

 

Stopping point for Friday March 2. For next time, read pp.137-48.