Transcripts For CSPAN Landmark Cases Landmark Cases Series - Lochner V. New York 20180218

Landmark cases cspans producedistory series in cooperation with the National Constitution center, is boring that in his stories and constitutional dramas but to get Supreme Court decisions. Quite often, and many of our most famous decisions, a coupler quite unpopular. Lets go through a few cases that illustrate very dramatically and visually what society of live in a 310 million different people. They helped stick together because they believe in a rule of law. Welcome to landmark cases, our series is looking at 12 of the most important cases in the Supreme Court history, we will lend more about the people and the issues behind them. Tonight we will talk about the case of lochner v. New york. This case give rise to an error that defines this report for the next 34 years. Let me introduce you to our two guests that will tell us more about this important case and why has been important for this report and our countrys history. Brandon barnett is that Georgetown University law school. He is the author of a group called restoring the lost constitution and he has argued before the Supreme Court. Called locker lochner v. New york. I am telling people they should be interested in this, why dont you was when wife. Why is this case important . The case has become a political symbol. It was made into a political symbol by Teddy Roosevelt when he met for president in 1912. It was about how roosevelt claimed that the court overreached and overstepped its bounds to block legislation from being enacted at the state level. Since then it has been a ititical flashpoint because was in a president ial campaign. Political flashpoint . For which side . Roosevelt claimed this was laissezfaire. He put homes on the court and he was extolling homes of the model of what justice should be. To be reelected president in 191270 elevate homes and he elevate this case that he called the bakeshop this was up to a political salience. Between the battle progressives who are arguing for increasing state regulation and eventually federal regulation of all kinds of Economic Activities and those who favored a more free market Economic System believes the constitution protected the liberties that the court does protect. Your book does call it one of the most controversial decisions in the history of the Supreme Court, what made it so . It was controversial for two reasons. It had an economic element to it, there was a conflict between the two different divisions of other the country should be, one focused on labor, community and the other focused primarily on capital and individual liberty. Reason, there is a separate reason that went alongside. In lochner v. New york, the Supreme Court said it should make the decisions about those debates. What did the court decide . They were asked to look at a constitutionality, one provision of a larger statute statute was called the bakeshop act. A vision of how a victory should be operated, there was one provision that limited the number of hours that an employee could work in the bakeshop to 10 hours a day and 60 hours a week. That is the maximum they be able to work. The court was asked to decide if this was a valid exercise of the work theree power was a violation of the liberty protected by the due process clause that says no person should be denied due process. They decided it violated it. Once we will learn about the condition that bakers faced in this era that give rise to the assembly passing the bakeshop. This is the case that has one the gilded age and one in the progressive era. We will have you watch this video and then talk about what was happening in the United States. V. The state of new bakers worked in seller victories. They had to toil for many hours every week producing bread to feed a vast and growing city. Were 25time there hundred or more victories in new york city, incredible number and the victory workers would have to come down into the sellers and essentially spend their lives here, the feelings of the bakery are relatively tall. At the time, most bakeries were maybe 6, 7, 8 feet tall. Humid, theret, were pipes that trip sewage and other things onto the floor. This floor that you can see is tiled would probably have been made out of dirt where would. It would have always been soggy and dirty. The utensils were never cleaned because they had no hot water at the same care. They would script the spatulas and other breadmaking equipment or nothing would ever be clean or sanitized. Then here we come to the oven. The turn ofven from the 20th century. It would have originally been a cold fire oven and it would have been a big pile of call right over here. Black coal always kick up a lot of dust, everything would have been grimy with coal dust and then the oven here would belch lots of hot fumes and then the bakery workers were breathing this all day. The bread would have been stored, the baked bread would have been stored around here and then they also would have been covered with a thin layer of coal dust because that is what the atmosphere of the celibate for he was. Then you add to that the fact that there were vermin running around and to catch the vermin. Warmfind a nice row of rows and they sleep on them. Conditions were not the most sanitary by any means, either for the products or for the workers themselves. What would you appear to know about what was happening in the United States at the turnofthecentury. Age,ving from the gilded the United States has already entered into a kind of mechanized industry business, even moving from the farming business and when it was local from the economy that was local to national or even international. Some people benefited and some people did not. The big cities sprung up like new york and chicago are examples in which new industries flourished. Areas, in these tenement and straight like the closing industry, the Tobacco Industry and it turns out the baking industry. It islub is a great clip, one of those things that a video clip is worth a thousand words. Where he is standing looks a lot better than i imagine they bakeshop what have looked in the year of 1905. There were sewers on the ground that were sometimes pipes and sometimes would, sometimes they were open. Thats just ran freely, so the roaches. Bakers work seemingly long hours and exceedingly difficult work. It wasnt as difficult as a lot the title of but my first chapter is not my grandma used to bake. It wasnt like grandma used to bake, they were handling 140200 pound sacks of flour and shoveling them with coal shovels. Filthy. Irty and the Public Health was endangered by the conditions that these people were working and because the bread wasnt sanitary. People were beginning to look at the Public Health and public safety. I think this is a good time after that click to desperate to talk about the bakeshop act and what the legislature of new york due to address the conditions that were so well described in the video. So the bakeshop act had a number of sections, sections 110 through 150 110 through 115. Session 111, drainage of plumbing implements and rooms. Requirements as to rooms, manufactured products come the flaws have to be cemented or tiled. Number 13, washrooms and closets, the inspection of bakeries, they were making for the others were being taken care of. These are very detailed regulations. Do you know where i got this from . This is attached to the majority of opinion because number the sections i just summarized were challenged challenged as unconstitutional. The court says there is nothing any ofutional about these health and safety laws, there are perfectly constitutional. So the very conditions that are being complained of in that video were being addressed by health and safety laws and the constitutionality of that health and safety law was not called into question given by the Lochner Court. One provision, it got dropped into the statute separately from the process to produce the health and safety laws added by the bakeshop unions which was the maximum hours law. It added it was added to the section. Workers cannot work one in 10 hours a day and they cant were more than 60 hours a week. Something, that provision was checked before. This past 24nothing in the house. Then it was back to the legislature for reasons that the governors found that they used the word person and he was afraid that the act would be found unconstitutional because it applied to bakeshop owners as bakeshopb employees. There were fewer people in the Assembly Like 120. We had about 135 legislatures that signed up on that specific provision. I think he also present an important point. The version regular to the maximum hours of the workers but it did not regulate the maximum hours of the figures worked in the same conditions that the workers did. They were allowed to work longer than 10 hours a day and within 60 hours a week. That is another reason why the court became suspicious. This one provision after saying all the rest of the health and safety rules were apparently ok. Introduce ae to character who be part of our drama later on in the story. His name is Henry Wiseman. Was Henry Wiseman . Did he have to do with the passage of new yorks law . He was an interesting character. I dont know how this happened to me but when i am working on research, which is somewhat hard to follow. He is not really famous but he is famous enough that you can find little bits and pieces about him. He is did learn is that german, he is a german national. California in 1886. He joined an antichinese organization and sometimes violent organization. He ended up being put in jail possession of for explosives. Soon after he was released he came to new york where he was hired as the editor of the. Iggest journal where they just really starting to organize themselves . Remember, we are talking 1895, it is not 2005, that makes a lot of difference. They were not very well organized at this time, the first union started to decade after the civil war. They were not there were unions but they were usually specific. Very specific unions. That is really important the first thing the they organize around was standardizing the workday. Workers worked from day to night. The one thing people dont really understand about this case is that workers were paid by the date where they were paid by the week. Usually by the weekend usually at the time by 1895 about 12 a week. Event of time that was worked there is noaytime, bargaining bargaining. The voice at those hours. In 1881, the bakers were on strike in new york. What they were striking for was a 12 hour day. Improvement was going to be a 12 hour day and they usually were six or seven hours per week. I will take you to the new York State Assembly to type more about how the bakeshop act was passed. The first prototype can be part of our program. If youre watching us in the eastern or central time zones, 024, 8 900. It was has in the number of specific times is. 8901. That is notice carefully. You can also send us a tweet and if you do, use the landmark cases. Youll get into the twitter feed that i have here and we will make this figure questions into our program. Finally there is a conversation going on about the lochner case on her Facebook Page and youre welcome to be part of that if you like as well. With all of that, lets take you to the new York State Assembly for a History Lesson in how the bakeshop act was passed. Bakeshop reform bill was introduced in the new York Assembly of 1895, bakers were on strike to demand shorter hours and better working conditions. We are in the new york State Capitol building, this is where the bakeshop act of meat 1895 would have been debated debated. Unions were just beginning to gain influence however, most of them preferred to use striking and organizing as tactics rather than working directly with the legislature because they believed it would take less time and less expensive. Three major factors influence the adoption of the bakeshop act. One, the volatile politics of the ark state. The government had recently transitioned from the georgia democrats and democratic governor to a republican governor. Both houses of the legislature had republican majorities, the republicans were at the time interested in increasing government involvement and were very reform minded. The democrats were divided. They were reform democrats but many that also represented the tammy hall interests. The second factor was an expose in the new york press about the terrible conditions in bakeshop, conditions that were not and evidently very harmful for the workers themselves. After that expose was published in september of 1894, the legislature was besieged with petitions and pamphlets and letters, many from prominent citizens and many from members the terrible, condition decrying the terrible conditions in bakeshops. Of 1895, arthur r that from brooklyn introduced the legislation, it was debated and passed with a very wide margin, it was 900. Not all members being present. It went on to the senate and was passed by an equally large margin 200. They signed the bill into law on may 2 of 1895 just two weeks before the end of the assembly session. Storys is an interesting about the impact of the newspaper article. We talk more about that . Not enter your question about Henry Wiseman and that is important. In 1894 when he came to the bakers union he actually took over the bakers union. He didnt do it formally. He basically took over the bakers union. He was a really charismatic person in both german and english and ambitious and smart. Thatwas the same year there was a tenement house committee. They were studying the and asons of the tenants it turns out, ill think henry had much to do with starting the process of this bill getting past. I think it was an offshoot of the tenement house committee. Membershose committee was the marshall. He is the man mentioned in the film clip. And he took up the idea of the bakeshops being one of those kinds of islam businesses that they were trying to solve the problems of. When he put that article in the causedhat he was it the attend to attention to be and analyzed in the committee that got behind the bakeshop. Did the legislation work . Did have an impact on the that the bakers were working in . I dont know. With respect to the bakers themselves, it did and did not. In new, most bakeries york they were working 10 hours a week. That was mostly because of collective bargaining. It was the Union Workers working jobs that were 10 a week. Health, it was hard to tell because all could find was the workers of the factory inspectors and they would report the number of inspections they made and the number of violations they find. 1913, the federal inspectors call for complete prohibition, the house they freeze. I am thinking that maybe they did not work. I think im going to follow up on one thing. Most union shops were already working 10 hours. Why would the unions want to invest their scarce resources in passing a law that benefits people that are not members of their union . It is usually because they are toing to adjust Competition Union organized shops. They supported maximum hours and formum age wage laws women. Unions were generally all white and allmale. We have to think that unions were being unusually altruistic. There are actually supporting legislation that will restrict nonunion. It turns out that these small, ethnic, german and george bakeshops were not very prounion and they were not easy to organize and the unions did not like this so much. The reason is you have too many of his premature aroundtheclock, or member the old Dunkin Donuts commercials it is time to make the donuts, it is a long process, the small amount of bakeshops could not afford workers the way the larger industrialized bakeshops could. If you have shift workers, you could work eight hours shifts. This is to suppress competition from these ethnic mom and pop fake shops. Howne of our viewers asked much the bread cost relatively and how much of that was profit and also wanted to know where the bakers generally were for the owners. That depends. I dont know how much it cost it at that time. With respect to the bakers being owners, the answer to that is kind of complicated because they were two kinds of industries and it also addresses the question of unions. One of the industries was the cracker industry, it was recognized and big. It eventually became a nap lies. This tended to be small, it was not recognized and even in 1910, i can remember but Something Like 90 of bakeries went unrecognized. I think it depends a little bit on where the bakery was. If the bakery was a small bakery in a small town, they were probably owners with some workers. In the were bakeries houses, they were probably just workers. Minute, we will meet at lochner. He was the owner of this bakeshop in utica, new york. Lets hear some questions from the college. I wouldod evening like to ask mr. Barnett to comment on two points. As you know, what the holmes junior wrote a dissenting opinion and as i am sure you are also aware Justice Holmes is one of the widely cited Supreme Court justice in history. I like to contrast as homes with your book, the structure of liberty. Libertarianism s you indicate this is the only legal system that can provide Adequate Solutions to problems of legal system that can provide Adequate Solutions to problems of interest and power and do you believe Justice Holmes was signed on to that theory today . The complicated question is based on a reading, i can tell an accurate reading called the rule of law. That is beyond the scope of this program. The caller has read this book. Yes successfully applied the to this particular question. Whether the constitution and the 14th amendment in particular what itd be consistent with his health and safety regulations or inconsistent with them. That is what this program is about. I would like to thank cspan for putting the show on. My question for your guess is if the Supreme Court ruling overruled the court it effectively overruled it because it rejected the whole idea of liberty of contract which we have not cot talked about yet. It also followed what holmes said about the constitution before people of different mines. It rejected the idea this is just as homess justice hol mes view. It seems as if the uncontested elements of the law would drive undercapitalized and taking way a business opportunity. They could use what skills they had. Were nodding your head. Was there an antiimmigrant elements . The even those provisions of the act were unchallenged as being constitutional, they drove them out of business. I think it is a good thought that they might have been an antiimmigrant element to it. There is another book about the lochner case called rehabilitating lochner. I am a big fan of the book but this is another book. David does talk about the antiimmigrants drive. The ticking of the antigermans, they were very much distrusted. We all know there was antiirish sentiment but they were not in the bakery business. The jewish and the germans were doing most of the baking in new york. Having said that and it rang the smallabout bakeshop there were still uniform and upheld, there were actually health and safety laws. They were consistent with the lochners court approach to the due process clause. Meet one of those german bakers who was suspected by this law that passed the family in the yard. That is Joseph Lochner. We will hear from his greatgrandson. Lets listen. Joe lochner probably wasnt the target for the new york state legislation. Just as lochner was born in germany in 1863 he came to the United States at age 24 and eventually ended up in utica, new york. He opened a bakery. They made cakes and cookies and breads and things like that. I have a cousin who talked about zoe lofgren was he would bring all kinds of suites. I know later on in life, the bakery was really thriving and joe eventually bought up an entire city block in utica and had the first car in the city as well. We came across the contract from 1896. That was a copartnership agreement between Joseph Lochner and mr. Smither. The contract is 98 of the partnership to Joseph Lochner and the remaining 2 to smither. What it does is a way to get around the bakeshop act. Been arrested court, everye to baker in america donated a dollar to the Legal Defense fund, my mother always told me that growing up. I think it was a test case and the reason i think joe would make a court, every baker in america donated sympatf defendant is he was a hardworking immigrant from germany his bakery was on the first floor, not in the basement like a lot of other bakeries of that time. Clean, that was what i was always told growing up as well. To googleot have been for bakeries of that time. I want to talk about the germans a little bit. There was a lot of antigerman led to another Supreme Court case that youre called meyer versus nebraska. Calledthe very same lochner cot said this maximum hours law did not satisfy the due process law also said this restriction on the teaching of german also failed and was unconstitutional under the due process clause in part because it deprived the people that the german instruction of their livelihood in teaching that and also because it lacked the police power rationale and in the meyer beat nebraska case, it is considered good luck today, it is not a case that is part of the bad cases, it was still decided by the same Lochner Court or the similar Lochner Court on the very same basis that lochner was decided. It also involved antigerman sentiment. One of our viewers look up Online Retail at the time. What do you want to tell us about how Joseph Lochner found himself at the center of this legal action . Was it unusual that he wouldve gotten arrested for his violation . It was not, it was unusual they only have three inspectors, as a matter of fact, they got him into the act because they got him to do some of the inspecting right after the bill was passed. The entire state of new york them again another reason that this could be unusual. Intoh it might have looked joseph evans bit more. He was probably surprised to find himself in court with criminals on the day he was indicted that he was charged with this law. I think he probably was a hotheaded men. I dont think this was a set of case. I think this was a test but there was a case from earlier, that involved tobacco manufacturing, which was done in the slums, usually in the home of People Living in tenement houses. Prof. Kens cigars. Prof. Barnett right, cigars. It was done in the slums. Usually a whole family was working, all living in the same tobacco they were working on. Interestingly enough, the jacobs the man charged with violating that, had two rooms. But the more unusual thing was that he was represented by a lawyer called the prince of the american bar. He was one of the men who defended Andrew Jackson when he was impeached. It is kind of curious that this cigar maker could end up with one of the top lawyers in the nation representing him. That wasnt the case in lochner. Lochner had a regular lawyer who made some serious mistakes. As we can talk about later. Ms. Swain we are going to go to the next part of our story. He appealed his conviction under the bakeshop law. Prof. Kens and it was a criminal conviction. I think he was incarcerated for. Ms. Swain fined 50 the second time. Prof. Kens he didnt want to pay. Thats why he probably had to go to jail. Ms. Swain what can you tell us about his pursuit in the new york case . Prof. Barnett he just refused to play. Plea. His attorney said that he refused to plea because the act he was charged with did not constitute a crime. I think that was because he intended to take it to the appeals court. I think that is the only reason he would do that, except if i am right, that he was hardheaded. Then it went to the Appellate Division of the Supreme Court of new york, which is the first level of appeal in new york. There the conviction was upheld by a vote of 32. That was the first time his attorney raised the issue of liberty of contract. He used the terms right to pursue a lawful profession in this brief. It went 32, and he appealed to the next level of the new york court. At that level, the new york court of appeals, they won by a vote of 43. A majority of the judges in new york decided that this law ms. Swain lochner lost. Prof. Barnett the law won. Ms. Swain next we will visit the new york state of appeals courtroom to learn more about that part of joe lochners story. Welcome to the new york court of appeals courtroom. This is the very court room in which people against lochner wouldve been heard. The case was decided in 1904. The case was on appeal. We have the very set up in which the attorneys would have appeared. This side wouldve been the appellant, Joseph Lochners people sitting here. The respondent, being the attorney general, sitting here. The lawyer for Joseph Lochner would have begun right here, facing the bench, and would have begun with words Something Like, may it please the court. I am the attorney for Joseph Lochner and him asking the court to reverse his conviction because my client was denied due process in that he was denied the right to enter into a contract to purchase labor and to set whatever working hours he, my client, had with the employee. He would have made that argument right here. The judges would undoubtedly have engaged him in questions, following which, the attorney for the state, the attorney general, would have presented the states viewpoint, and the argument wouldve been whether the police power of the state can, in effect, trump, the right of someone to purchase labor and the right of someone to contract freely with labor. These were the two considerations that were in the balance. Ms. Swain so that is the court that joe lochner faced and lost his case on appeal. Next up is the Supreme Court, and we will learn about that. Next we will take your calls. Matthew is watching us in viejo, california. I want to thank cspan for doing this. I have a question that went back to something mr. Barnett said earlier about how the unions were pushing for the restriction as a way to suppress the smaller momandpop bakeshops. I went to undergrad at berkeley and had a constitutional law professor who was very adamant, that it was the same justification that suppress these momandpop bake shops, working so much more hours and they could not keep up. I dont know if you have any thoughts on that. Prof. Barnett you have the unions prof. Kens it is the other half of the same thing i was talking about. You are right. The more industrialized larger bakeries that could afford shift workers had money to suppress competition, and so did the workers who unionized, and they had a mutual interest in suppressing the competition, lowpriced competition. Prof. Barnett they may have had a mutual interest, and may have acquiesced, but they had nothing to do with the law. I have Read Everything i could, and i find nothing in there that shows that either unions or Large Businesses were involved in passing the law. What i found is that the law was passed because of a fortuitous moment. Henry weismann is a lucky man. They just so happened that he ended up becoming the head of the bakers union at the same time that the gilder committee was in power, doing it survey. It was the power of these individuals, i call those people mainstream reformers. They favored ameliorating the problems of poverty in the tenement houses, and they had just enough strength in the political system in new york at that time that they could get a law like this passed. The unions could not do that, they were split into three groups, had no power, had no money, had no ability to influence the legislature. Which you mentioned levi morton, he was not the important personality here. It was Thomas Collier platt. He ran the state with an iron fist. But they might get something that the mainstream reformers might, because there were enough republicans to thwart those democrats in tammany hall in new york city. Ms. Swain next is a call from steve watching us in dallas. I love your series. My question doesnt pertain directly to the Supreme Court case, but i was wondering about the factory fire in new york city. To what degree did that speed up the development of Labor Union Movement in this country . Particularly about working conditions, did that help labor unions and their movement growing in america . Prof. Kens i couldnt answer that question directly, because i would not know how it sped up the creation of labor unions. I think it drew more attention to the problems of tenement house businesses. Ms. Swain next is will watching us in lincoln, delaware. It is a conceptual question i would like to address directly to professor barnett. He introduced in his early discussion about competition, about how the landmark case has impacted on competition. He is talked about education, unions, housing. Professor barnett, would you please expand on other key economic factors that the lochner v. New york 1905 case impacts . Prof. Barnett im not sure i understand what the caller is asking about . Ms. Swain are you still there . Yes. About 10 minutes ago, you were talking about how the unions wanted to pursue this landmark case because they were able to restrict competition from mom and pop shops. Then you talked about how education would be limited. Im thinking that you have a reputation as probably one of the foremost libertarian theorists when it comes to constitutional law. What other precedents have followed from this key case . Prof. Barnett ok. The education piece i was talking about how the local law restricted the teaching of german and how the Lochner Court struck that law down because it violated due process clause. Once the jurisprudence had developed to distinguish Genuine Health and safety laws, they had that were really anticompetitive in nature and had no basis in health and safety, which is what it concluded 54 about this law. Once that particular line of cases was eventually reversed in west coast hotel and others, that meant all these laws could be passed and there would be no vetting by the Supreme Court as to whether there was a Genuine Health and safety rationale for them. It would simply be presumed, and you couldnt contest it. I think one of the things that we need to talk about is that there were two dissenting opinions in the lochner case. Not just one. Theres one by Justice Holmes, theres the one by justice john harlan. His dissent was that the benefit of the doubt should go to the legislators in passing the health and safety law, but it was still permissible to present evidence on the reasonableness of the recommendation. In this case, there was a good record that the Supreme Court relied on to find out there was no health and safety measure. Justice harlan disagreed. Given the presumption, he said, that the bakeshop law should be upheld. It was holmes position that was more radical than that. It would not have allowed proof to be introduced into the court. It was not until the warren court that the homes approach of his dissent became the law, when you were not allowed to contest the rationality of a restriction on your liberty. Ms. Swain youre getting slightly ahead. We have to find out how the case got to the Supreme Court. Can you explain how was a joe lochner able to get the Supreme Court to take the case . Prof. Barnett im going to turn to paul again. He knows the details. Prof. Kens by 1894 or so, he has a falling out with the bakeshop union. Normally, i would read these kind of materials like the bakers journal, i would read clips like videotapes and things. This one they sent me was the baker journal itself, this big old book falling apart in my hands, and inside the bakers journal i found an addendum to one months editorial. What it said was that lochner had fallen out because he had been skimming money off the top. Im sorry weismann had been skimming money, so he became a baker. He opened to bakeries. He said he was studying law on the side. He became active in politics a little bit, republican politics, and eventually in 1903, he is charged with practicing law without a license. He admits it. He said he was actually not practicing, just representing another attorney. 1903 is an important date. He pops up again in the lochner case because he gets lochners original attorney, he asks him to file an appeal to the United States Supreme Court. The interesting thing is that he filed a document, entitled an intention to appeal to the United States Supreme Court, and filed a 100 fee. He did not file a motion for a writ of error. For those of you who are not lawyers, or early 20th century lawyers, that was the way a file got to the Supreme Court. It was in order to send it to the Supreme Court. If that had been where we stood, this case would have never happened. It would have been deep in the dungeons of the new york courts of appeal. Just laying away with its 100 filing fee. What happened was that weismann took on another attorney. He was not a very famous attorney, either. Although he had argued before the Supreme Court. Frank harvey field saw the error and he actually got a justice to agree to let the writ of error go through. When i was alerted to the fact that weismann had been charged with practicing law without a license, i tried to find out when he got the license. I wrote to the court of appeals, charged with determining that, and i asked any name spelling that i could find, and i found that no Henry Weismann was ever licensed to practice law in new york. So essentially what happened, a, the case was very close to never getting to the court. And b, by the way, weismann never called himself an attorney. He called himself of counsel. He did get the right to argue before the Supreme Court. Ms. Swain weismann turns out to be one of the interesting characters in this entire story. He starts out organizing the union, somewhat responsible for passage of the law, then switches sides and takes the case to the Supreme Court defending lochner. He is an interesting one to watch as we follow this story. Can you tell us about the makeup of the court . Prof. Barnett it has a reputation of being a conservative court. There are justices put on there by Teddy Roosevelt, other president s. It upheld economic regulations before the lochner case, so it wasnt clear that it had a lock on the outcome. It was a 54 case. It wasnt clear that it was going to come out the way it did. Some historians think that in fact, Justice Peckhams opinion was drafted as a dissent. The votes were not as expected or changed during deliberations, and it was quickly adapted to be a majority opinion. The thing about dissenting opinions as opposed to majority opinions, they are very clear. People have a favorite dissenting opinions. Almost nobody has a favorite majority opinion. Majority opinions are written by committee and are there to attract votes. If you have a single dissenter like holmes, he can write these impassioned things, well maybe one of the things why i liked lochner so well when i was a student. It was written by a dissenting opinion was written, a very clear, singular argument. Maybe because it was originally a dissent and was adjusted as part of the 54 majority. Ms. Swain how long had Melville Fuller been on the court . Who is he appointed by . Prof. Kens hes been on the court since the 1880s, so hes been there a while. He definitely do you remember him . Prof. Barnett no. Who can remember where they all came from . Prof. Kens he had been on the court. He had a very strong probusiness views. He was a railroad attorney from chicago. Prof. Barnett i just want to add, there are a lot of people who talk about justices as railroad attorneys, because they were responsible for so much of the money and commerce and litigation, you could almost not be a commercial lawyer without being a railroad attorney. Prof. Kens i have lived in that time for most of my life. I do not think he was famous. Hes famous to me, but i dont know if he is famous to anybody else read ms. Swain we heard the name Oliver Wendell holmes, certainly well known by the general public, John Marshall harlan. Who were the other names of the justices serving the people would know who distinguished themselves . Prof. Kens im not the best person to ask. David gruber was a nephew of stephen field, connected to a family that had pretty strong ties in america, and pretty strong power in america. The rest that would say, no, it was joseph mckenna. It was day, white, none of these people are degree famous. Ms. Swain Rufus Peckham offered the opinion that has in debated. Can you tell us about who he was . Prof. Kens he was a new yorker, appointed to the court for 10 years at that time. Generally conservative views. Primarily voted against any kind of labor legislation or restriction. Interestingly enough, it sounds like lochners attorneys have a good case, but they dont, really. They had a hard case going in. Most of the cases developed over the period before lochner v. New york were state court opinions. There were only two that were federal court opinions. One was holden v hardy, that upheld an eight hour day for mining and manufacturing. Health and safety provision. The other was acting versus kansas which of health another law, another eight hour day or 10 hour day for Public Employees, which is a whole different thing because Public Employees are part of the contract in a way. So both of those cases were the government is part of the contract. Upheld. So all of the cases in the Supreme Court at the time this case came up upheld restrictions on hours. Prof. Barnett it is somewhat of that the Supreme Court struck down regulations. It struck down some, but upheld far more than it struck down. I want to go back to what we said at the beginning of the show, because some of your viewers may not of been watching us at the beginning, the bake shop act was an elaborate health and safety law that the Lochner Court itself upheld as it a legitimate regulation to protect the public, but other people as well, including the bakers. That is the evil, terrible, awful Lochner Court did that. Just the one provision was struck down. Ms. Swain we will hear more about the justice who wrote the majority opinion. We are turning to the new york legislature. Justice peckham who wrote the majority for the Supreme Court of United States decision in lochners favor served on this court before this court heard the case. Justice peckham was a justice of this court from 18871895, so when judge peckham was on this court, he along with the others would have come out the door wearing the robes, and when he began he would have sat in that seat, the junior judge, and as he took on seniority and others came on, he would have moved around, but never as chief judge. He was a political advisor of president grover cleveland, and when there was a vacancy in the Supreme Court, cleveland obviously felt that his friend, his confidant, new york court of appeals judge, Rufus Peckham junior, would have been a good candidate for the United States Supreme Court, but he would have been in this courtroom here and we can have a pretty good idea of how he would have voted if he had been on this court when the lochner was decided when the lochner case was decided here. We know how he voted when he carried a majority in the United States Supreme Court in favor of lochner. Ms. Swain that is more on Rufus Peckham. Here is the singular question that the new york Supreme Court was asked to visit, did the new york bakeshop act violate the liberty protected by due process under the 14th amendment . That is a big question. What kind of arguments were made . Prof. Barnett one thing to understand, we have a very modern view of what rights are and how they work, a postnew deal world. So when the court talked about liberty of contract as part of the liberty protected by the due process clause, we have a tendency to think that if you recognize a right of liberty of contract, that should be consistent and trump all health and safety laws, all economic regulations, but that is not the way any Constitutional Rights were considered before the new deal. All laws had to be reasonable, which meant they had to be not irrational or arbitrary. You could challenge any law as irrational and arbitrate under the standard approach. So that was the question before the court. Under the due process clause, was this law irrational and arbitrary . These were actually technical terms. Let me just say what irrational is. When you have the means, and they are not closely related to the end and you say that is why youre doing it, we may have reason to doubt that is why you are doing it. If you say you want to go to the grocery store, but if you end up at the dry cleaners, then maybe your aim was not to go to the grocery store, so if you say your aim is Public Health and you pass a law that does not have a connection to Public Health, we may suspect in the words of the court other motives were responsible for that. That is an irrational law. An arbitrary law is a law of the similaraw that treats people differently. So you would regulate historians one way and law professors another way, even though there is no real reason to distinguish what kind of job they do. A law that treated us differently would be considered arbitrary. Both of these were the way due process cases were dealt with. Identifying liberty of contract only meant that the law would have to be not irrational or arbitrary in order to survive scrutiny, and that is what the court was deciding in this case. Ms. Swain earlier, we learned the court was often hearing cases over multiple days. What was the actual process of making an argument before the Supreme Court in 1905 . Had it standardized itself . Prof. Kens i dont think it had standardized itself. It wasnt as long as the pre20th century. I also dont know that this case was as complicated as some of those other cases, like the slaughterhouse case, dred scott. Ms. Swain on twitter, thinking about the justices on the court, and attorneys making their appeals, was it fair to think that none of the justices rose from the poverty of the labor class . They all had a predisposition toward what . Prof. Kens i think that is true of lawyers in general, especially in that era. I do not think any role was from poverty. At least the ones that are famous, that we know of. Holmes was the son of an important doctor in boston and part of the boston elite. Sometimes called the boston brahmins. That explains his opinions, which are sometimes hard to read. He writes more like a poet then a lawyer and more like a lawyer then someone who writes clearly. Harlan was the son of a slaveholder. He had run for governor in kentucky. He was a really interesting man, because his opinions swing one way or another. People have trouble getting a grip on him. Peckham was the son of a judge. So i would say that is true. I would like to make a comment about what randy said. You keep saying these werent these were all legitimate laws. That is part of the problem. Part of the problem was defining what police power is. Liberty of contract is not found in the constitution. It is an extraconstitutional right created by the courts. And it is not really created until after the slaughterhouse cases. Although, there are some, you can make arguments it is in the spirit of the constitution. But it is not there. We end up with a triumvirate of questions, in the lochner v. New york. One is, does this violate due process, the due process clause of the 14th amendment. The other is, does it violate the due process clause. That is the contract clause. Which is, not in the constitution, a relatively new development. The other is, what is police power. By saying it was a health law, that is not what everybody thought. People thought it extended to the general welfare. Prof. Barnett i do want to mention about liberty of contract, that right was passed by congress, eventually passed the 14th amendment because they were concerned the democrats had made such a thing of the Civil Rights Act that they would repeal the act, which they had promised to do. The act had been vetoed by president johnson, and some republicans shared johnsons concerned that maybe they did not have the right to make and enforce contracts, and hold property, testify, and do other things. They passed the 14th amendment to make sure the rights mentioned in the Civil Rights Act of 1866 would be protected by the courts. One of those rights with the right to make and enforce contracts. It is not true that the court made this up in the 20th century. We talked about Henry Wiseman, who you said was not a lawyer. But he did get to argue part of the case before the court. We pulled one of the quotes from the book. This is Henry Weissman making his case to the Supreme Court. He compares the bakers to the american housewife. Lets listen to what he said. Then there is the american housewife, the real artist in cake bread, not to mention the american high. The housewife cannot bound her hours of labor. She sometimes works hard into the night, it never seems to occur to these on gallant legislators to include within the purview of the statue. But two of the judges on the new york court of appeals made the same kind of comment. Judge obrien, i think was the first. What he said was the good housewives of new york would be surprised to learn baking was an unhealthy business. I think the attorney general of new york had the better case in lot but he had an image problem. Julius mayer. What that quote goes to is the alleged arbitrariness of the law which would limit bakers but not limit other employees, who at that time were also engaged in occupations we today would think were unhealthy. In fact, much of what people did was unhealthy, which was why the unions were formed in the first place and why you had health measures. But why single out the bakers . That was considered to be arbitrary. The case that it already been of help with respect to the miners could be distinguished because mining is an unusually dangerous occupation. You are probably old enough to remember undermining disasters in United States on a frequent basis, like airline crashes were having on a frequent basis. They could say, if you are down in a mineshaft for longer than a certain amount of hours, you present a health and safety risk to yourself and your fellow miners. The same could not say that the said about bakers as well as many other trades. They were not being subjected to a maximum hours law. That would make the law arbitrary under the standard of the due process of law requires laws not the irrational and not be arbitrary. Susan how long did it take to return the opinion . I have no idea. It did not take as long then as as it takes now. It can be very quickly. Susan we talked about how Justice Peckham originally started out as a ddissent. He was ultimately chosen to write the majority opinion. Here is a little bit of what, in this 54 decision, judge peckham wrote. There is no reasonable ground for interfering with the liberty of person for the right of free contract by determining the hours of labor in the occupation of a baker. There is no contention that bakers as a class are not equal and capacity to amend and other trades for manual occupations or they are not able to assert their rights and care for themselves without the protecting arm of the state interfering with their independence of judgment and action. What is he referring to there . Prof. Barnett that was the historic standard of arbitrariness. That was the historic standard of due process. The state courts prior to the federal courts, and once it is included in the 14th amendment, it is applied to state laws as well. Whereas he can distinguish miners, there is a reason to single out miners. An unusually dangerous occupation. Susan Justice Holmes wrote the not to embody a particular economic theory or of laissezfaire. Following. Differing views and the accident of our fighting certain opinions natural and familiar or novel or even shocking, but not to conclude our judgment upon the question that at use in body and can for the constitution of the united they. United states. What is he saying . He is attacking the notion of liberty of contract. He says it is not part of the constitution. It is representation of laissezfaire economics. What he believes is the majority is actually taking laissezfaire economic theory and applying it as constitutional law. Which i think he was wrong about. The majority was taking the due process clause, the traditional due process clause standard and applying to hear and suspecting Something Else was going on besides helping safety laws. I agree with what paul said a minute ago, which is very important. There was at that point the nature of the police power the , scope of the police power was being contested. This is really legitimate ought to be about. It is not about liberty of contract. In general you are free to enter into contracts as long as were not harming another person. The question is, what is the scope of police power to regulate us or prohibit us . That is what the argument was about. Did it include more than health and safety of the public . At that point, the court was saying, that is as far as it goes. The other thing i would want to say about Justice Holmes statement is later he takes a different approach and says there is a theory of free speech and the constitution, that ideas a theory of free speech in the constitution, that ideas need to survive in the marketplace. He says that is the theory of our constitution. He was capable of finding theories in the constitution when he cared to do so. Susan lets go to a question. Good evening to your distinguished panel. To answer your previous question, the lochner case was argued over two days. It was decided less than two months later on april 17. Thank you. I have a few questions. One requires historical background and addresses the liberty of contract. That is a question of where did , this come from . If you will bear with me a little bit. After the civil war and the passage of the 13th amendment, slavery was outlawed. However, many in the south tried and the vast and there that many tried their best de facto slavery intact. Many were known as friedman and wanted their only end, that was not happening too well. But there was the freedmens bureau. They went down south to help them. They were not able to get them land. What was happening is the freed men were going to work on the plantations all over again. Obviously the former slaveowners preferred they would do it for free, but they could not do that. The freedoms bureau was trying to institute they came up with this concept of having people, the slave owners sign a contract whereby they would guarantee the freedmen wages. The contracts were not free in the sense that most of them were oneyear contracts where the freedmen could not leave the former plantation. If there is a bad crop, the wages would get docked. But at least it was some ring the freed men could hang their hats on. Susan with apologies, our time is so short. Bring this into a question. That is why the provision that became the 14th amendment, packet the liberty of contract that was formulated as a shield to protect employees from employers taking advantage, how did that get flipped on its head to allow employers to use it as a sword against employees . That happened a lot. That is my first question. Susan im going to have to stop you there. I apologize. There are so many people in line. Thank you for your question. There are two sides to a contract. Employers and employees. I am a contracts professor as well as a constitutional lawyer. There are two parties. It depends on which side is trying to get out of the contract with which side the court is going to have to side with you he brings up an important point. In the south, there were all kinds of ways in which southerners were trying to reimpose the subordination of blacks and get around the 13th amendment. One of the ways alabama did it was like criminalizing breach of contract, if somebody signed a longterm contract and gave them a 15 fee to deposit in advance, then they quit their job, they would actually accuse them of fraud and prosecute them for crimes and put them in jail and subject them to hard label for hard labor for doing their jobs and it was a way of keeping blacks under control of what their former slave masters were. That law was also struck down by the Lochner Era Court is a violation of the 13th amendment. You know who dissented in that case and what it upheld that law . Justice Oliver Wendell holmes. He thought below is perfectly constitutional, even though the Lochner Era Court thought it violated the 13th amendment. Susan we have a lot to discuss. Let me ask you to compress 35 years of history. You said at the outset this initiated the socalled lochner era of the Supreme Court. What happened during that time . Its a little bit of a misnomer. Locking becomes the symbol of this era but it is not substantive due process. In a baltic battle over the commerce clause. It battle over Franklin Delano roosevelt deal with the depression through government action. The flaunting of those attempts by the Supreme Court up until 1937. What happens in 1937 is the story of roosevelt trying to pack the. Pack the court. Susan that lets listen to Franklin Roosevelt in 1937 complaining about the Supreme Court in a fireside chat. President roosevelt the court has improperly set itself up as a third house of congress. A separate legislature Super Legislature as one of the reading has called it , into the constitution words and applications which are not there and which were never intended to be there. We have, therefore, we reached the point of a nation where we much take action to save the constitution from the court. And the court from itself. Susan and what was that action . He tried to pack the court. He tried to pass a statute where the number of justices would be increased and he could appoint justices until the justices retired. A get a very ill reception from democrats. They had huge majorities in the house and senate. He could have gotten a constitutional amendment to the what the newate deal said. But he chose not to do that. There were leaving chairs and committees who were not friendly to this courtpacking scheme. That is what he tried to do. Susan a viewer said the socalled lochner era came to an end in the court itself with the decision made in 1937. Tell us what happened then. The Supreme Court said two things about the lakhdar case. On one thing is that it the constitution speaks of liberty, not liberty of constructs. It talks about the kinds of burdens on society. It kind of rejected the notion of laissezfaire economics in the sense that it says that substandard wages actually turn out to be a subsidy on the people in favor of businesses. So, it turns the idea of lochner around. The one thing it does not do, and im sure randy will agree, it gets rid of the notion of substantive due process. People dont talk about it in those terms anymore, but substantive due process has not died. We still have a court that tends to the activist. Is very important at this point to say that term substantive due process was never used by the court during the lochner era. That Assembly Intern made up by progressives to criticize what the court was doing because they held that by protecting a substantive right it was going beyond the procedural nature of the due process law. It was only embraced as late as the 1960s and 1970s, prior to that they did not use the term because it was considered to be a contradiction, a criticism. It was never the doctrine of the court. I want to disagree what ill best with what paul said about the socalled lochner era. Lochner did not get any traction until Teddy Roosevelt was running as a progressive and he started making the bakeshop an issue in the campaign. Secondly, paul was right. There were two issues at this time. When was the due process clause cases about the irrationality and arbitrariness of local laws and eventually federal laws. The other was the enumerated powers of congress. Lochner is a due process case. If we were arguing the Affordable Care act for two years, as i was involved with, people kept accusing us of bring lochner case. We were not doing a due process case. Lochner had nothing to do with the challenge to the Affordable Care act. This is a confusion maybe this program can rectify the future. In both of those instances the court followed a pattern of restricting the ability of government to get involved in economic regulation. But the confusion is illegally lochner. That somehow lochner as a case had anything whatsoever to do with the limits on federal power. Susan even recently, as one of says,ewers on twitter chief Justice Roberts refers to the lochner case 16 times in his dissent on the samesex marriage case. What is your view . Lets listen to what the chief justice had to say about the samesex marriage decision and lochner. Chief Justice Roberts only one president interprets this. Lochner v. New york. That case, decided in 1905, it struck down the state law setting maximum hours for bakery employees. The court did so based on its own conception of loyalty, in particular its view that the constitution protects, the general light of an individual to be free in his own person. In the years after lochner, the court struck down nearly 200 other similar laws that the courts saw as interference with the rights of the individual. The lakhdar era is now regarded as one of the most unprincipled periods in the courts history. The problem was not that the particular liberties the court and try to undesirable, but that such an unrestrained enterprise had no basis in the constitution. Susan what should we understand about this . I hope your viewers notice that what chief Justice Roberts said sounds exactly the same as what Franklin Delano roosevelt said. They are articulated the exact same position and many simply imported the roosevelt new deal jurisprudence and make that part of their conservative politics. In fact it was the progressive lochner, criticism of think its imported in the modern political conservatives argument. It is the left on the court as early as the 1940s that started abandoning these calls for restraint and they started assuming all was called an activist role. They would protect the release in ways that previous to that conservatives had criticized. We have done a flip here. Now it is conservatives who are unconstructing roosevelt new deal. Both left and right in this respect are all operating in a post new deal mode. We have an example of several major citations of the lochner case. 1923, adkins v. Childrens hospital of washington, d. C. 1965, griswold the connecticut, the right to privacy 1973 in roe v. Wade. 1992, 1 of the planned parenthood cases. In the last cases it was liberals and citing the dissent. Thats an example of this shifting politics. I think the liberals, being in favor of judicial activism, which dick nixon ran on the idea he is going to appoint judges that will follow the constitution. It was liberals who were the activist. I think that was the anomaly. I think by and large conservatives have been the activist overtime. The conservative side of the political docket, i think your term was a post new deal mentality, i think that is turning around a little bit now. I hope it is. I think it is turning around a little bit so that you have it at the same time we have chief Justice Roberts complaining about the liberals. You Justice Ginsburg talking at the National Federation of business about the conservatives uprising. There are talking about the two different elements of lochner. One is talking about judicial activism, roberts. One is talking about traditional and one is talking about the court interjecting itself into decisions about economic policy, and that would be ginsburg. Susan charles in new jersey, on the air. I dont really have too much to add except my uncle joe, thats what my father called him. My fathers uncle. Joe lochner. I dont know too much about the case itself, uncle joe ran that bakery. From what my father told me, he used to employee a of german immigrants. They would come over and they would have a place to work. Susan charles, in your family is joe lochner wellknown for his place in history . Charles oh, yes. My sister is in attorney and my nephew is also an attorney and my niece is an attorney in washington where you guys are. We are all kind of legal. Does the family say anything about the relationship of uncle joe with the employee who was trying to work more hours than he could under the statute . We got some sense they were actually pretty close to each other. I think there was some indication this was a set of case between the two to try to challenge the law. Is there anything in your Family History about that . Charles i do not know too much except there was a sense this was almost like a clan. You know . People would come to work and they would have a place to work. He fulfilled a need to four he fulfilled a need for people coming over from germany. Susan thanks. Joe lochner, the person who gave his name to this case and brought it to the Supreme Court. Let me take a call from floyd in fort campbell, kentucky. Floyd can you hear me . Sure can. My question comes from an historical background. I have an education in history, i am looking to go to law school next year. This is fascinating. Its the preface that besser cans professor kens stated on the unions and employers of the bakeries having a definite interest but not being involved in the outcome of legislation to create this law that caused lochner v. New york. My concern is, how can you or should you be leery because there is any Public Record in your studies or analysis or research, no Public Record of them being involved. There could have been something behind the scenes, especially if it would have benefited them to hurt or stymie this other private Small Business either in corruption or bribery at the legislative or judicial level. Thank you. I think thats a good question. But i have more than not finding anything. Have was theings i unions were not powerful enough to get this passed. The second thing is the bakeries were completely different. The powerful bakeries were the cracker industry bakeries. They had no interest in this particular bill. I think that is a good point of view, but i feel the date shop union had no interest in the maximum hours . Not the bakeries that were actually cracker industry. But the base of union did not represent those people. They represented the baking industry. Yes, but did not have any power. But it was a union initiative. Yes, it was a union initiative. Susan hi, ken. I was originally going to ask how much this was reflected in Upton Sinclairs the jungle and i thought i was published a year later. At that particular time many unions got their foothold then. Right at that time. Its an important part of our history, just those few years. I wonder, how much this affected reports at the time. They must have been aware of all this. They were even i want to go back to appoint any earlier. At this time most unions were white were generally white. Theere were some black unions and they were mostly male. They were also prowhite male to the disadvantage of blacks who were resentful of some of the more powerful unions who would not let them in and they had to organize themselves. You always have to keep that in mind. We think of unions differently. The progressives like to unions. The court was aware of union agitation. Which is why the court in lochner refers to other motives. Lacking health and safety reasons, but like the rest of the bill, we might suspect other motives were responsible for the passage of it. This was actually prounion as opposed to management legislation. The court said the legislature is not supposed to put itself on the side of one of the other which is what paul was saying was going on. Our guest said there is beginning to be a revisiting of lochner among libertarians. Our clip is senator rand paul in 2013 on the senate floor talking about lochner. Senator rand paul the lochner case is an 1905. The majority rolls 54 that the right to make a contract is part of your due process. Someone cannot deprive you of determining how long your working hours are without due process. So, president obama is a big opponent to this, that i would ask him among the other things i am asking him today to rethink the lochner case. The case in lochner is whether a majority rule, a state legislature, can take away your due process. Your due process to contract. Can it take away your life and liberty without due process . The court ruled no. Think it is a wonderful decision. It expands the 14th amendment and says to the people that you have unenumerated rights. Susan as we close, we told folks the court ended the lochner air. You said in your book, it is not dead. What should people know about lochners importance today in the body politic . I think the two of those together show the importance. Rand paul is talking about judicial activism. Rand paul is talking about a certain view of liberty that i dont think everybody shares. That notion that you entered into this contract completely free. At arms length from the contracts professor. It does not hold in a lot of peoples minds. In an air of progressive philosophy. Susan you get the last word. Prof. Barnett in that speech which was part of his filibuster, he also favored my book restoring the lost , constitution. The presumption of liberty. Our liberty should be presumed to be valid and government should only restrict our liberty if they have a good reason. They ought to be able to present evidence to support their present in court which they would have been able to do under the patient back but unable to do according to five justices with respect to the maximum hours law. That is what judging should require a legislatures. Susan so ends our program on lochner v. New york. This is the fourth in a series of 12. We will do this until the middle of november. If youre learning like we are and you are not a lawyer, we have a book available were selling at cost. It is written by tony mauro, the 12 cases we selected. If you go to our website, you can see how to order it so you cannot follow along. As we close, let me say thank you to Randy Barnett and paul kens for helping us understand the 1905 case of lochner v. New york. Pleasure. Cspan2 history series, beginning february 26 at 9 00 eastern with a look at the significant Supreme Court decisions a call of the maryland hurt in 1819. Watch landmark cases live monday, february 26 at 9 00 eastern on he spent, cspan. Org or listen with the free cspan radio app, and for background order a copy of the landmark cases companion book available for 8. 95 plus shipping and handling at cspan. Org landmarkcases. There is a link on a website to the National Constitution centers internet active constitution. Interactive constitution. Fabenight on q a, michael on the power within the u. S. And china and the pacific. There is a public shaming. China has lost a lot of face. It is hard for westerners to get an idea of the that means to the asian culture, especially someone as big and proud as china. They gave way to a never again mentality. Thisstart after that mindset that we will build up our navy and our Missile Defense forces in such a way we are never we will never lose face like this again. Tonight at 8 00 eastern on cspans q a. Susan newsmakers is pleased to welcome Bob Goodlatte , representing virginias 6th. After 24 years in congress, he has announced he will not be running again next year, but he has a full plate between now and the end of the term. Issues. We will talk about the bigissues. Thank you for being with us. Rep. Goodlatte it is great to be with you and your viewers. Susan let me introduce you will be asking questions of representative goodlatte. Scott long and alan gomez. Scott thank you for being with