Lochner Lives

Eve Tushnet points to Stuart Buck who quotes the following passage from Mark Gerson's In the Classroom: Dispatches from an Inner-City School That Works:

Because they worked hard and wanted and expected to work hard as adults, my students took an almost instinctive interest in money and economics. One of the parts of the Constitution that captivated them was the interstate commerce clause, because it allowed the government to limit the number of hours they could work. I did not expect to spend much time on this, but the students were fascinated by the idea that the federal government could regulate working conditions in a Jersey City restaurant on the basis of the fact that the tablecloth was made in New York. I was surprised that this point generated significant ire among my students. Carmen reacted first: "No one should tell me how much I should work except my mother. How does Bill Clinton know how much money we need or how many hours I can work and do well in school?

Walt added, "She be right, yo. And if I ain't workin', you think I'm studyin'? No. I am out with my boys."

Every student who commented on the interstate commerce clause agreed with these assessments. The unanimity was striking, but so was the fact that most students did not allow themselves to become too upset in light of what they considered a grievous violation of their liberty. Why? Because, as Charles told me, no one paid any attention to these laws. He had worked sixty hours a week in a restaurant for several years, and no one had ever threatened to stop him. Moreover, Charles added, it was not just small businesses that do not keep official records; his younger brother had worked similar hours in a branch of a large supermarket chain, and no one had bothered him, either. I would never have thought of it before, but now I would not be surprised if statutes restricting the number of hours teenagers work are the most violated laws in the city, and there is nothing the government can do about it.

As luck would have it, the regulation of working hours was at issue in Lochner v. New York, 198 U.S. 45 (1905), the high-water point for libertarian policies in the US.

Lochner involved the violation of a New York State law regulating the number of hours bakers could work. The regulation was supposedly for the health of the bakers, although it was more likely a Union put-up job so that non-Union shops wouldn't have an advantage over Union shops. The Supreme Court struck down the regulation, holding that the freedom of the bakers to contract with the bakery for to work any number of hours they together chose was implicitly protected by the Due Process Clause of the 14th Amendment ("No State shall . . . deprive any person of life, liberty, or property, without due process of law").

This is what is known as substantive due process (likened by its opponents to red pastel greenness). It holds that the Due Process clause does not simply regulate the governmental process in depriving a citizen of life, liberty or property, but that it creates a substantive right to certain aspects of life, liberty or property that cannot be denied at least through the legislative process. Lochner is incompatible with a modern regulatory state and, in fact, lead the Supreme Court to strike down several important components of Roosevelt's New Deal. That lead to the court packing plan (Roosevelt proposed to expand the Supreme Court until his new justices could override the old, Lochner loving justices. The crisis was averted when the Court first severely limited and then overruled Lochner.

Substantive due process, however, lives on. Although the courts will now defer to economic regulation without regard to the erstwhile freedom of contract, they strictly forbid interference with the judicially created substantive privacy right upon which the right to abortion, among other things, is based.