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In the U.S. constitutional history, the Lochner Era was a contradictory and controversial period, during which time, about forty years, the U.S. Federal Supreme Court made a series of controversial decisions concerning the protection of constitutional economic liberties while imposing strict constitutional challenges on economic legislations passed by the states’ and federal legislators. The tense relationship between the economic legislations challenged and judicial review led also to tension between the Congress and the President and the Supreme Court, which was regarded as a contributing factor to the so-called “constitutional crisis. Lochner Era was widely considered as a deviation from the U.S. constitutional tradition, during which time, the power of judicial review itself suffered challenges and even denouncement. However, seen from another perspective, Lochner Era also consolidated the judicial review system of the U.S., offering valuable experience or lessons to constitutional development of other countries.
I. The Lochner Case in 1905
The Lochner Era was named after a famous decision made by the Federal Supreme Court in the year of 1905. In Lochner v. New York, the Supreme Court invalidated a bakery shop act of the New York state on the ground that the act was against the due process provision in the fourteenth amendment to the Constitution. The majority justices ruled in this 5 to 4 decision that amendment fourteen protected a liberty of contract, whereas the state act of New York had not enough reason to restrain such a liberty. However, the majority justices also conceded that liberty of contract was not an absolute right and could be reasonably regulated by the state, the premise of which is that an appropriate exercise of the police power by the state legislature. Lochner was the name of a bakery shop’s owner, who had been accused of requiring his employees to work over ten hours per day and been fined 50 U.S. dollars by the local court; otherwise, he would have faced 50 days in prison. Lochner finally appealed his case to the Federal Supreme Court and won.
The ill-fated bakery shop act of the New York state was adopted in the year of 1895, and won wide support from various political interest groups. The act required that bakers should not work over ten hours a day, or sixty hours a week. But the real situation at that time was that bakers had to work at least twelve hours a day and seven days a week, which could not be labeled as an excessive expropriation of the workers by their employers because bakers were paid on a daily basis and they would be willing to work long hours in a day to keep their jobs. New York legislators found that such working conditions and environment would pose series threat to the health of the workers as well as the quality of their products, leading to the passing of the bakery shop act in the year of 1895. While lobbying for the passing of this act, supporters collected all sorts of evidence and data to prove that long hours of working in such an environment will shorten the lifespan of bakers and might disable them at an early age. They also pointed out that the act might provide minimum protection of the workers’ right of contract due to their disadvantaged positions when signing labor contract with their employers. However, at the end of nineteenth century and the earlier twentieth century, the Laissez-faire idea was still deep-rooted in the country. It would become unusual practice for the government to intervene into the economic affairs and regulate the labor-capital relations. People still held fast to Thomas Paine’s famous quote: “The government is best which governs least.”
II. Judicial philosophy of the Supreme Court during Lochner Era
The Lochner Case happened in a transformation era when the traditional society and economic concepts were facing great challenges. It was not the case that the Supreme Court justices ignored interests of the bakers, nor did they agree that bakers should work overtime. In fact, one of the justices himself came from a baker’s family. Supreme Court justices were not acting as a protector of businesses and economic industries, nor did they deny to alter the then existing status quo of wealth distribution. They cared more about constitutional issues entangled in the case: the state legislation is a reasonable means to achieve legislative goals, or an arbitrary and random act? In its nature, this is a rivalry and game between the police power and constitutional basic right.
Lochner Era was remembered mainly due to the judicial review model adopted by the high court towards economic legislations. The late Supreme Court chief justice William Rehnquist once said that the court had invalidated state legislations on a more frequent basis in Lochner Era. Relying on the “due process of law” clause in both the fifth and fourteenth amendment (the former is targeted at federal legislations and government actions, and the latter at state legislations and government actions), the Supreme Court frequently invalidated state or federal legislations, mostly the economic acts regulating maximum working hours, minimum wages as well working conditions, which was later concluded as a doctrine of substantial economic due process of law.
The core of the doctrine of substantial economic due process of law is the protection of constitutional liberty of right. Staring from the Allgeyer Case of 1897, liberty of contract, a personal right that had not be explicitly protected in the constitutional text, has been elevated to the level of constitutional protection. In the Lochner Case of 1905, the constitutional principle of liberty of contract was perfectly elaborated. In the Adkins Case of 1923, the doctrine of liberty of contract was further developed and the constitutional position of such a right was further consolidated. In the Case of West Cost Hotel of 1937, the precedent of Adkins was overthrown, signifying the end of liberty of contract doctrine. The year of 1937 was a transition for the constitutional protection of economic rights. Since then, the state and federal economic legislations encountered almost no substantial constitutional challenges in the Supreme Court, which was called “constitutional revolution” by some scholars. “Revolution” seems to be a big word, but at least in the field of judicial review, the Supreme Court has shifted from judicial activism to judicial self-restraint.
III. Legacy of the Lochner Era
The Lochner Case did not attract much more attention right after the Supreme Court made the decision. However, with more and more economic legislations being challenged to the Supreme Court, a number of such legislations did not pass the constitutional test based upon the substantial due process of law. The Lochner Case began to attract more and more attention and academic studies. Lochner, the name of an ordinary bakery owner, became the name of an era, signifying a deviation from the constitutional tradition and an intervention into legislative power by judicial department. As Bruce Ackerman, the author of We, the People, has said that for judges in modern time, the most serious insult would be to align him with justices who had made mistakes in the Lochner Case before the New Deal Court. What are those mistakes? Intervention into legislature by the judicial department? Constitutional protection of an economic right that is not explicitly listed in the constitutional text? Judicial activism? Or a narrower interpretation of the state police power? In short, the protection of the liberty of contract, a right that is not explicitly mentioned in the constitution, by the Supreme Court could easily invite assailment because it may imply that the court can reach its hand to almost any corner of personal right protection.
Substantial economic due process of law stems from the doctrine of substantial due process of law. In fact, after the Lochner Era when the substantial economic due process of law came to an end, the substantial due process of law not only survived but also flourished in the field of protection of civil liberties (like protection of privacy right) in 1960s and 1970s. Different from the Lochner Era, society has undergone huge changes in both economic development and political tide, and the Supreme Court’s decisions have gained more public support and social legitimacy.
Seen from perspective of comparative constitutional studies, the legacy of Lochner Era spanned the ocean and reached Europe. It seems that Germany has experience in terms of constitutional protection of liberty of contract similar to judicial review experience of the U.S. Federal Supreme Court during the Lochner Era. Free from the Lochner “mistakes”, German Basic Law explicitly protects liberty of contract, offering a stronger constitutional support for decisions made by the constitutional court. Moreover, the Basic Law also imposes restrictions on such a right. Concretely speaking, there are also a number of basic principles lying behind: the principle of social state, the principle of state ruled by law and the principle of proportionality. Constitutional court must refer to and abide by those principles in making decisions. Therefore, the protection of liberty of contract and the exercise of judicial review by two constitutional courts suffered quite different fates. In the U.S., the Lochner Era ended with a constitutional crisis that was awkwardly solved by a rapid shift of judicial doctrine by the Supreme Court. However, thanks to the Lochner Era, judicial review power of the court was further consolidated and the boundaries of judicial review power were again challenged in such constitutional disputes.
I. The Lochner Case in 1905
The Lochner Era was named after a famous decision made by the Federal Supreme Court in the year of 1905. In Lochner v. New York, the Supreme Court invalidated a bakery shop act of the New York state on the ground that the act was against the due process provision in the fourteenth amendment to the Constitution. The majority justices ruled in this 5 to 4 decision that amendment fourteen protected a liberty of contract, whereas the state act of New York had not enough reason to restrain such a liberty. However, the majority justices also conceded that liberty of contract was not an absolute right and could be reasonably regulated by the state, the premise of which is that an appropriate exercise of the police power by the state legislature. Lochner was the name of a bakery shop’s owner, who had been accused of requiring his employees to work over ten hours per day and been fined 50 U.S. dollars by the local court; otherwise, he would have faced 50 days in prison. Lochner finally appealed his case to the Federal Supreme Court and won.
The ill-fated bakery shop act of the New York state was adopted in the year of 1895, and won wide support from various political interest groups. The act required that bakers should not work over ten hours a day, or sixty hours a week. But the real situation at that time was that bakers had to work at least twelve hours a day and seven days a week, which could not be labeled as an excessive expropriation of the workers by their employers because bakers were paid on a daily basis and they would be willing to work long hours in a day to keep their jobs. New York legislators found that such working conditions and environment would pose series threat to the health of the workers as well as the quality of their products, leading to the passing of the bakery shop act in the year of 1895. While lobbying for the passing of this act, supporters collected all sorts of evidence and data to prove that long hours of working in such an environment will shorten the lifespan of bakers and might disable them at an early age. They also pointed out that the act might provide minimum protection of the workers’ right of contract due to their disadvantaged positions when signing labor contract with their employers. However, at the end of nineteenth century and the earlier twentieth century, the Laissez-faire idea was still deep-rooted in the country. It would become unusual practice for the government to intervene into the economic affairs and regulate the labor-capital relations. People still held fast to Thomas Paine’s famous quote: “The government is best which governs least.”
II. Judicial philosophy of the Supreme Court during Lochner Era
The Lochner Case happened in a transformation era when the traditional society and economic concepts were facing great challenges. It was not the case that the Supreme Court justices ignored interests of the bakers, nor did they agree that bakers should work overtime. In fact, one of the justices himself came from a baker’s family. Supreme Court justices were not acting as a protector of businesses and economic industries, nor did they deny to alter the then existing status quo of wealth distribution. They cared more about constitutional issues entangled in the case: the state legislation is a reasonable means to achieve legislative goals, or an arbitrary and random act? In its nature, this is a rivalry and game between the police power and constitutional basic right.
Lochner Era was remembered mainly due to the judicial review model adopted by the high court towards economic legislations. The late Supreme Court chief justice William Rehnquist once said that the court had invalidated state legislations on a more frequent basis in Lochner Era. Relying on the “due process of law” clause in both the fifth and fourteenth amendment (the former is targeted at federal legislations and government actions, and the latter at state legislations and government actions), the Supreme Court frequently invalidated state or federal legislations, mostly the economic acts regulating maximum working hours, minimum wages as well working conditions, which was later concluded as a doctrine of substantial economic due process of law.
The core of the doctrine of substantial economic due process of law is the protection of constitutional liberty of right. Staring from the Allgeyer Case of 1897, liberty of contract, a personal right that had not be explicitly protected in the constitutional text, has been elevated to the level of constitutional protection. In the Lochner Case of 1905, the constitutional principle of liberty of contract was perfectly elaborated. In the Adkins Case of 1923, the doctrine of liberty of contract was further developed and the constitutional position of such a right was further consolidated. In the Case of West Cost Hotel of 1937, the precedent of Adkins was overthrown, signifying the end of liberty of contract doctrine. The year of 1937 was a transition for the constitutional protection of economic rights. Since then, the state and federal economic legislations encountered almost no substantial constitutional challenges in the Supreme Court, which was called “constitutional revolution” by some scholars. “Revolution” seems to be a big word, but at least in the field of judicial review, the Supreme Court has shifted from judicial activism to judicial self-restraint.
III. Legacy of the Lochner Era
The Lochner Case did not attract much more attention right after the Supreme Court made the decision. However, with more and more economic legislations being challenged to the Supreme Court, a number of such legislations did not pass the constitutional test based upon the substantial due process of law. The Lochner Case began to attract more and more attention and academic studies. Lochner, the name of an ordinary bakery owner, became the name of an era, signifying a deviation from the constitutional tradition and an intervention into legislative power by judicial department. As Bruce Ackerman, the author of We, the People, has said that for judges in modern time, the most serious insult would be to align him with justices who had made mistakes in the Lochner Case before the New Deal Court. What are those mistakes? Intervention into legislature by the judicial department? Constitutional protection of an economic right that is not explicitly listed in the constitutional text? Judicial activism? Or a narrower interpretation of the state police power? In short, the protection of the liberty of contract, a right that is not explicitly mentioned in the constitution, by the Supreme Court could easily invite assailment because it may imply that the court can reach its hand to almost any corner of personal right protection.
Substantial economic due process of law stems from the doctrine of substantial due process of law. In fact, after the Lochner Era when the substantial economic due process of law came to an end, the substantial due process of law not only survived but also flourished in the field of protection of civil liberties (like protection of privacy right) in 1960s and 1970s. Different from the Lochner Era, society has undergone huge changes in both economic development and political tide, and the Supreme Court’s decisions have gained more public support and social legitimacy.
Seen from perspective of comparative constitutional studies, the legacy of Lochner Era spanned the ocean and reached Europe. It seems that Germany has experience in terms of constitutional protection of liberty of contract similar to judicial review experience of the U.S. Federal Supreme Court during the Lochner Era. Free from the Lochner “mistakes”, German Basic Law explicitly protects liberty of contract, offering a stronger constitutional support for decisions made by the constitutional court. Moreover, the Basic Law also imposes restrictions on such a right. Concretely speaking, there are also a number of basic principles lying behind: the principle of social state, the principle of state ruled by law and the principle of proportionality. Constitutional court must refer to and abide by those principles in making decisions. Therefore, the protection of liberty of contract and the exercise of judicial review by two constitutional courts suffered quite different fates. In the U.S., the Lochner Era ended with a constitutional crisis that was awkwardly solved by a rapid shift of judicial doctrine by the Supreme Court. However, thanks to the Lochner Era, judicial review power of the court was further consolidated and the boundaries of judicial review power were again challenged in such constitutional disputes.