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Reexamining Lochner v. New York

Spencer McCloy was a 2019-2020 Young Scholar Awards Program recipient. He is a graduate of Union University.

Scholars generally revile the decision in New York v. Lochner (1910) as the product of an activist judiciary; however, the Court employed similar reasoning in cases like Griswold v. Connecticut (1965), a case that guides modern interpretations of substantive due process. In an effort to redeem Lochner, I will briefly outline the case, explain the modern disregard for the decision, and argue why Lochner should guide the Court’s approach to substantive due process.

In 1895, the New York Assembly passed the Bakeshop Act, which limited bakers to working sixty hours per week. A bakery owner named Joseph Lochner was sued for violating the Act. He appealed to the Supreme Court, claiming the Act’s provision limiting the number of hours a person can lawfully work was an unreasonable use of the state police power and violated the Due Process Clause of the Fourteenth Amendment.

In a 5-4 ruling, the Court held the Bakeshop Act’s maximum-hours provision violated the Fourteenth Amendment’s Due Process Clause. Justice Peckham noted that, because the Act did not secure the public safety, health, morals, and general welfare, it was an overextension of the police power and violated the Fourteenth Amendment’s Due Process Clause. Peckham’s decision in part relied on the liberty of contract doctrine established in Allgeyer v. Louisiana (1897).

Justice Holmes’s dissent made two claims: first, that the majority superimposed its preference for laissez-faire economics onto an otherwise neutral Constitution; and second, that the democratic decision of the people should decide what is and is not constitutional. Although a small group of scholars seek to defend Lochner, Holmes’s dissent largely defines the modern reception of the Lochner decision and scholarly critiques of that decision.

However, while today’s scholars condemn Lochner, they simultaneously celebrate Griswold, a case with such similar reasoning to Lochner that Griswold’s Justice Douglas felt compelled to explicitly distinguish it from the Lochner decision. Like in Lochner, the Court in this 1965 case secured an unenumerated right via the Fourteenth Amendment’s Due Process Clause. However, the Justices in Griswold used loosely connected clauses in the First, Third, Fourth, Fifth, and Ninth amendments to find the right to privacy––a suspect approach at best. If scholars celebrate a case where so many amendments were woven together to create a loosely connected right to privacy, it stands to reason that Lochner should be considered good case law, as a comparatively close connection exists between the Constitution and the liberty of contract doctrine.

In my research paper, I argue that Peckham should have directly cited the Contract Clause to secure the liberty to contract. At a minimum, the Contract Clause provides credence to protecting the liberty of contract doctrine via the Fourteenth Amendment’s Due Process Clause by demonstrating the Framers’ interest in protecting contracts. If modern substantive due process interpretation is based on Griswold, the much closer connection between the Contract Clause and the liberty of contract doctrine should be acknowledged under the same logic. If legal scholars began using the Contract Clause to validate the protection of the liberty to contract via the Fourteenth Amendment’s Due Process Clause, Lochner would be plucked from the anticanonical category in which the decision has wallowed since shortly after its announcement.

Moreover, acknowledging the close tie between contracts and the rights protected in the Constitution could do the following two things for modern substantive due process cases. First, it might untangle the rhetorical web distinguishing Griswold and its progeny from Lochner, because Lochner could be considered a reputable case worth championing in subsequent decisions. Second, tying Lochner and the economic liberty it protected to an explicit and closely related clause in the Constitution would set a higher standard for the rights protected by the Due Process Clause. Rather than allowing vague implications to constitute a right, the approach described above would require a more clearly enumerated right. With this alternate standard for analyzing substantive due process claims, reasoning like that adopted in Griswold would not meet the rigors demanded; penumbras and emanations would not suffice. Instead, Courts seeking to enshrine an unenumerated right would have to justify their intentions with an explicit constitutional clause (or meet some other more precise test).

Finally, in the full-length paper, I argue that the Contract Clause alone, even without the Fourteenth Amendment’s Due Process Clause, was enough to clearly and constitutionally support the liberty of contract doctrine. Had the Court used a Contract Clause defense of the liberty of contract, it might have changed the Court’s approach to modern substantive due process.

Lochner should inform modern substantive due process cases. It is hypocritical to elevate the Griswold decision while degrading Lochner, because both cases apply the same logic and reasoning. Furthermore, Lochner rests upon a closer tie to an explicit constitutional clause than Griswold. Therefore, the reasoning in Griswold can be accepted only if Lochner also is accepted. If, however, Lochner remains an anticanonical case, Griswold and its progeny should also be relegated to a similar status.