Transcripts For CSPAN3 Landmark Cases Supreme Court Landmark Case Lochner V. New York 20240712

Landmark cases, cspans special series produced with the constitution center, explore and the human story and constitutional dramas behind 12 Supreme Court decisions. Number 759, Petitioner Versus arizona. Number 18, roe against wade. Quite often in many of our famous decisions were quite unpopular. Lets go through a few cases that illustrate are very dramatically and visually what it means to live in a society of 310 million different people who helped stick together because they believed in the rule of law. Welcome to landmark cases. Our series of looking at the 12 most important cases in Supreme Courts history. We will learn more about the people in the issues behind them. Tonight, lochner v. New york, 1905. It is one of the controversial cases of the Supreme Court, and in fact the story of a baker from new york whose case gave rise to an era that defined Supreme Court cases for the next 30 years. Let me introduce you to our two guests who would tell us more about this important case. Randy barnett is at Georgetown Law School and is the author of a book, restoring the lost constitution, the presumption of liberty. He has argued before the Supreme Court. Thank you for being with us. Paul kens wrote the book on lochner, he wrote a book called lochner v. New york. His homebase is texas state university. Im telling people why people should be interested this, why is this case important . The case has become a symbol, a political symbol and it was made into a political symbol by Teddy Roosevelt when he ran for president in 1912 and it was a symbol about how roosevelt claimed that the court had overreached and overstepped its bounds to block progressive legislation from being enacted at the state level, and ever since then it has been a political flashpoint because it was made this way during the president ial campaign. Political flashpoint for which side . Roosevelt claims this is a product of laissezfaire economics, which is what he got from dissenting opinion of Justice Holmes. Roosevelt put Justice Holmes on the court and was extolling him as a model of what a justice should be. He put them on the court when he was president , and hes running to be reelected in 1912 so he elevates homes and elevates this case. It was originally called the bakeshop case. Political importance, that it did not have until the campaign. This was the battle between progressives who are arguing for increasing state regulation and eventual federal regulation and those who favor a more free market Economic System who believed that the constitution protected the liberties that the court does protect in lochner. Your book calls it one of the most controversial decisions, what made it so . I think it was controversial for two reasons, and one of those reasons is that it had an economic element to it, a conflict between two different visions. One focused on labor and the other focused on the community in democracy. The other, which focused primarily on capital, individual liberty and individualism and liberty. That is one reason. As randy also said, the second reason right alongside was the dispute about who should make the decisions about those debates. The Supreme Court said it should make the decisions about those debates. Specifically, what does the court decide . What was the framework . The bakeshops act was a regulation on how it should be operator. And there is one provision, section one tenth that limited the number of hours that an employee could work in the bake shop to ten hours a day and 60 hours a week. That was the maximum they would be allowed to work under the statute. The court was asked to decide whether this was a valid exercise of the States Police power or whether it was a violation of the liberties that says that no person shall be denied life liberty and the pursuit of happiness. We are going to go back into the history of the time and learn more about the conditions that bakers faced in this era that gave rise to the big shop law. This is a case that you say has one foot plus planted in a gilded age and in the progressive era. We are gonna watch this video and have you talk more about the conditions and what was happening in the u. S. Around this time. Lochner versus new york was all about conditions at the turn of the 20th century. At that time, bakery workers worked in underground cellar bakeries where they had to toil for many hours, producing bread to feed a vast and growing city. There were 2500 or more bakeries in new york city, an incredible number. The bakery workers what have to come down into the cellars and essentially spend their lives here. The ceilings of the bakery, and this bakery, a relatively tall, but at the time most bakeries are maybe 6, 7, 8 feet tall, hot, humid, there were pipes which dripped sewage and other things onto the floor. This floor which is now tiled would have been made out of dirt or would. They utensils were never cleaned because they never had any hot water at the sink. So they would just kind of scrape dispatch liz mother bread making equipment but nothing would ever be cleaned or sanitize. And then here we come to the oven. This cois an oven from about the turn of the century it would have originally been a cold fire oven. And that wouldve been a big pile of coal over here, black coal which was always kicking up a lot of dust so everything would be covered in coldest. The oven here with belt lots of hot fumes and the bakery workers were breathing us all day. The bread would have been stored somewhere around here, and the baked bread also would have been covered with a thin layer of coal dust, because that was what the atmosphere of the seller bakeries were. Then you add to that the fact that there were vermin running around and cats to catch the vermin, and they would find a nice row of warm loaves and they would sit on them and sleep on them, conditions on these bakeries were not the most sanitary by any means. Even for the product or for the workers themselves. So, what do you want people to know about what was happening in the United States at the turn of the century . The turn of the century was moving from the gilded age to the progressive era. The u. S. Would have already entered into a kind of mechanized industry business, rather than moving from a farming business and one that is local, from an economy that was local informing to more industry and national international. Certain people benefited and certain people didnt. One of the things that happened is that big cities sprung up like new york inch chicago in which new industries flourished, clearly in these tenement areas industries were like clothing and Tobacco Industry and as it turns out the banking industry. This clip is a great clip. But it is one of those things that a video clip is worth 1000 words. Because where he is standing looks a lot better than i imagine a bake shop wouldve looked, abasement bake shop during the lock near area. They were not just dirt floors, answer pipes running overhead, they were sewer pipes that were sometimes were open. Rats ran freely and sorted roaches. Bakers worked exceedingly long hours and exceedingly difficult work. It was not as difficult as a lot of the work during that time, but my title of my first chapter is, like grandma used to bake. It was not like what grandma used to bake. They were handling 140 to 200 pound of flower. Shoveling them into coal. It was hard work and long work. It was dirty and filthy and difficult work and long hours it was not just difficult condition for the bakers, the Public Health was endangered by the conditions they were working in because the bread was not sanitary. What was also happening in the country that people were beginning to look at, Public Health and Public Safety . I think this is a good time after that clip to talk about the bakeshop act and what the legislature of new york did to address the conditions that were so well described in the video. The bakeshop act had a number of sections, sections 110 through 115 and im just going to read bits of the sections. Draining and plumbing of rooms, requirement of rooms, utensils, it manufactured products. This is the one that says that force have to be smart or tile. Washrooms and clauses to be cleaned spaces. Inspection of the bakery, establishes a regime to make sure others are taken care of, and those of the requiring authorizations you had to have. You had to say if youre going to make any changes. These are very very detailed regulations. Do you know i got these from . This is attached to the majority opinion in the lochner decision. None of those sections that i summarized were challenged as unconstitutional. In the case itself, the court says theres nothing unconstitutional about any of these health and safety laws. They are all perfectly constitutional. The very condition that are being complained of in that video were being addressed by health and safety law in the constitutionality of the health and safety law, does not fall into question even by the Lochner Court. What was called into question . One provision that got dropped in separately added by the bakeshop unions which was the maximum hours long i mentioned at the top of the show. It was added to the section. It did not come through the same legislation process. They cannot work more than 10 hours a day and more than 60 hours a week. Let me interject something. That provision was not added later, it was checked afterwards. What happened was the bakeshop act was passed and its whole 124thzero and then it went back to the legislature for reasons that the governments personal secretary found it, they use the word person instead of employee, and they are afraid the app to be found unconstitutional as applied to both bake shop owners and employees. Again it was a fewer people in Assembly Like 120, maybe 30 in the house, so we had 130 or 135 legislators and one person that signed off on that specific provision. That is true. He also brings up an important point. The provision regulated that maximum hours, but not them make actual who also worked in those same condition as those bakers did. They were allowed to work longer than ten hours a day and 60 hours a week, which is another race in the court became suspicious of this one provision after saying the rest of the health and safety rules were perfectly okay. It is time to introduce a character that will be part of our drama as well in the early stage. It is henry weitzman. Who is he . He is an interesting character i do not know how this happened but i usually find someone whose hard to follow. Hes not really famous but hes famous enough that you can find little bits and pieces of him. He is german, german national, a baker in germany and he landed in California First in the u. S. In 1886. He joined an antichinese corporation, a sometimes violent organization. He ended up being put in jail for six months for possession of explosives. Right after he was released, he came to new york where he was hired as the editor of the bakers journal which was the International Bakers and confectioners unions journal. Were the unions just running to organize themselves . In new york especially. In unions in the United States at this time, talking 1895 now, not 2005, which makes a lot of difference by the way. Unions were not well organized at this time. The first union started two decades after the civil war. There were unions before then but they were usually specific like the locomotives for railroads, very specific. National unions did not start until later in the century, and what is really important is the first thing they organized around was standardizing the workday. Workers who work from day to night, remember one thing people do not understand about this case is what they get paid by the day or by the week. They were usually paid 12 a week. The amount of time they worked during the daytime was up to the employer. There was no bargaining about it. The employer set the hours. Those hours were pretty darn long. In fact, 1881, the bakers went on strike in new york and what they were striking for was a 12 hour day. Think about that. Their improvement was going to be a 12 hour day and they usually work six to seven days a week. We are going to take you to the new York State Assembly to tell you more about how the bakeshop act was passed. I want to tell you a you can be a part of our program. We want to have your questions and comments to understand what aspects of history you want to learn about. Dial those numbers carefully, please. You can also send us a tweet and if you do, use the hashtag landmarkcases. You will get into the twitter feed that i have here on my set. And we will get your questions on our program. Finally, there is a conversation about the lochner case on our Facebook Page and we would like you to be a part of that as well. Lets take you to the new York Assembly on a History Lesson and how the bakeshop act was passed. When the bakeshop reform bill was introduced to the new York Assembly in 1895, bakers from the east side were on strike to demand shorter hours and better working conditions. We are in the Assembly Chamber of the new york State Capitol building. This is where the bakeshop act of 1895 would have been debated and passed. It was a time when unions are just beginning to gain influence. However, most of them prefer to use striking and organizing instead of working directly with the legislature because they believed it would take less time and would be less expensive. Three major factors influenced the adoption of the bakeshop act. One, the volatile politics of the new york state. The government had recently transition from majority democrat and democrat governor to republican governor ip morgan. Both houses of the legislator had republican majoritys the republicans were, at the time, interested in increasing government involvement and were very reform minded. The democrats were divided, there were pro reform democrats but there were also many still that represented the tammy hall interest. The second factor was an expose in the new york press about the terrible conditions in bakeshops, conditions that were not sanitary and definitely very harmful for the workers themselves. After that expose was published in september of 1894 the legislature was besieged with pamphlets and petitions and letters from prominent citizens and members of the clergy decrying the terrible conditions and urging the legislature to do something about them. A freshman republican introduced legislation. It was debated and passed with very wide margin. In fact, 900, not all members being present. It went on to the senate and was passed by an equally large margin, 200. Governor leevy morgan signed it into legislation may 2, just before the us and recession. This is an interesting story about the impact of a newspaper article. To influence public opinion. Can you talk more about that . I didnt really answer your question about Henry Wiseman. When he came to the bakers union, he actually took over the bakers union. He did not do it formally, not an elected leader but he did take over. He apparently was a very charismatic person. He was fluent in both german and english, he was ambitious and smart. 1894, the same year either way that there was a tenant house committee, several of these throughout the 1890s studying the conditions of the tenements. I do not think Henry Wiseman had much to do with starting the process of this bill getting passed by the senate, i think it was an offshoot of the tenement house committee, the guilders committee. One of the Committee Members was edward marshall. He is the man mentioned in the film clip. Edward marshall took up the idea of the bakeshops being one of those kinds of slum businesses they were trying to solve the problems of. When he put that article in the press, that kind of caused the attention to be drawn. But it his allies in the gilder Committee Really got behind the bakeshop act. Did the legislation work . Did it have an impact on the conditions of the bakers and the bakeries . I do not know. Do you know that . I just looked it up. With respect to the bakers themselves, it and didnt, by 1913, most bakeries in new york, most bakers working 10 hours a week roughly because of collective bargaining. It was the union bakers that tend to work 10 hours a week. With respect to health, it was a different question. Health was hard to tell because all we have are the records of the factory inspectors, and those were just reports that the numbers of inspections they make and the violations they find. By 1913, the federal inspectors calling for a complete prohibition of new tenement house bakeries, so im thinking maybe they did not work. I think i want to followup on one thing, because it wanted to mention the union role. Most union shops are already working 10 hours, so the law is aimed at nonunion shops. Why would unions want to use their effort to pass laws for nonunion members . It is usually because they are trying to address competition between unionized shops. It is the same reason they supported maximum hours for women. Because usually ends in those days were all white and generally all male. You have to think that you unions are being unusually optimistic if they are supporting legislation that is restricting nonunion shops. It turns out the small, ethnic, german, jewish bakeshops were not very prounion and they were not easy to organize and the unions did not like them very much. Why would you restrict, how would you get a competitive advantage by restricting their maximum hours . If they are small enough to man the ovens, you have to man the ovens pretty much around the clock. Remember the old dunkindonuts commercial question mark time to get up and make the donuts . It is a very long process. If you have shift workers who can work eight hours shifts, but if you have only one or two employees, they will have to work longer hours so it was a way for union organized bakeries, they could raise to suppress competition from these ethnic mom and pop bakeshop str. How much was bread was profit and they also want to know were the bakers generally the owners . I do not know how much bread costs at that time. With respect to bakers being owners, the answer to that is complicated because there were two types of industries. One of the industries was the cracker industry, mechanized, big. It eventually became monopolized. The National Biscuit company, it became the. Oh the other was the bread baking industry which tended to be small. I dont think it was even recognized in 1910, it was Something Like 90 of bakeries were not mechanized. Now as to whether they were owners, i think it depends on where the bakery was. If it was a small bakery and a small town, probably owners were the workers. If they were bakeries in the tenement houses, they are probably just workers. In a minute we are going to meet Joseph Lochner who gave his name to the case and he was a big shop owner. We are going to begin a call with patrick in new york. Hi good evening. I would like to ask you to comment on two points, aware, Justice Holmes is one of the most widely cited u. S. Supreme Court Justices in history. Principally, i believe for his clear and present danger opinion. And i would like to contrast Justice Holmes with your book, the structure of liberty, where you emphasize your relationship between libertarianism and classical liberalism. Would you say that as you indicated in your book, the private education and enforcement of the law with Market Forces is the only legal system that can provide Adequate Solutions to problems of interest in power, and you believe Justice Holmes would sign on to that theory today . Thank you. I think that could be a masters thesis. Could you find a short answer for that . The complicated question is an accurate reading of my book, and this is really beyond the scope of this program. But the color has read this book and successfully applied the book to this particular question, but right now what we are concerned about is what the u. S. Constitution provides, not what some alternative legal system could provide. And whether the constitution of 14th amendment in particular would be consistent with these health and safety regulations or inconsistent with them. That is really what this program is. About andres in baltimore, you are on the air. Good evening. I would like to thank speaks than for putting the show on. My question for your guests is, did the Supreme Court ruling overrule the courts ruling in lochner . It effectively overruled it. Its effectively overrule because it rejected the idea of liberty of contract, which we have not talked about. Yet followed what holmes said, about the constitution being of people of different minds. It rejected the idea that the case actually placed laissezfaire capitalism and social darwinism into the constitution. Hi ed, what is your question . I was wondering if there is an anti immigrant element to it . It seems as if the uncontested elements of the law would drive under capitalized bakeries out of business, taking away Business Opportunities for immigrants to use what skills they had. You are nodding your head. Was there an anti immigrant element . That was the right reason i was nodding my head. Even those provisions that were unchallenged as being unconstitutional had the tendency to drive Small Businesses out of business. I think it is a good thought that it might have an anti immigrant element, ive never looked into that. There is another book about the case by david bernstein, rehabilitating lochner. Im a big fan of this book. David does talk about the anti immigrant drive, particularly anti germans who are very much distrusted and theres a lot of anti german dissed trust meant. There is also the anti irish sentiment, but they were not usually in the bakery business. And also the anti jewish sentiment. Mostly the jews in germans were doing most of the baking in new york. However having said that, and agreeing with the colors and paul about small bakeshops implementations of health and safety laws, they were still uniformly upheld because they were actually health and safety laws. Those laws were consistent with the approach to the due process clause. Lets meet next one of those german bakers who is affected by this law that was passed by the assembly of new york. And that is Joseph Lochner, we are going to hear story from his great grandson. His bakery probably wasnt a target for the bake shop act passed by the new york state legislation. But it was certainly impacted by it. Joseph lochner was born in bavaria, germany in 1863. He came to the u. S. At 24 and ended up in utica, new york and opened up a bakery. They made cakes and cookies and breads and things like that. I have a cousin who talked about how their uncle joe, would come to their house every sunday and bring all kinds of sweets and they talked about how delicious they were. I know later on in life, the bakery was thriving and joe bought up an entire city block in the utica. He had the first corona city as well. In some of the old family documents, we came across the contract from 1896 that was a Cool Partnership agreement between my greatgrandfather and mr. Smother. The contract is 98 of partnership to Joseph Lochner and the remaining 2 to smother. What it does, i think, it is a way to try to get around the bake shop act. After joe had been arrested and he took the case to court, every baker in america donated a dollar to the Legal Defense fund. My mother always told me that. I think it was a test case. The reason i think joe would make a sympathetic defended is that he was a hardworking immigrant from germany. His bakery was on the first floor, not in the basement like a lot of the other bakeries of that time. It was also very clean. That is what i was always told growing up as well, which may not have been typical for bakeries of that time period. Do you want to start . I want to talk about the germans a little bit. Theres a lot of anti german sentiment, and it led to another famous gay case that you may or may not have in your segments. If prohibited the teaching of german in grade school it was called the meyer v nebraska. Thats how ill anti german sentiment was. Its it also said this restriction on the teaching of german also failed, it was unconstitutional under the due process clause in part because it deprived the people that did german instruction of their livelihood and also because it lacked the rationale of the maximum hours did. And the meyer v nebraska case is considered good law today. It is not a case that was part of it, yet it was still decided by the same court on the very same basis that lochner v new york was decided and it also involved anti german sentiment. One of our viewers tweeted in, Retail Prices of foodstuffs or could 1900, a pound of loaf of bread cost seven cents. What do you want to tell us about how Joseph Lochner found himself in the center of this legal action. Was this his idea to produce this legally . Was it unusual that he wouldve gotten arrested . It was only unusual because that its vector only had three inspectors. As a matter of fact, they even had henry to do some of the inspecting. Right after the bill was passed. For the entire state of new york, there were only three inspectors. Yes, that might be another reason that this wouldve been unusual. I dont know, i wish i would have looked into lochner a little bit more when i did the book. One thing i said about him was that he was probably surprised to find himself in court with criminals on the day that he was charged with this law. I think he probably was a hardheaded man. I dont think this was a setup case. I think it was a test case, as his grandson this. But i dont think it was set up. There is another case earlier and that case involved tobacco manufacturing, which was done in the slums, usually in the home of People Living in tenement houses. Cigars. Right, cigars. And im, it was done in the slums, usually whole family was working, all living in the same tobacco and they were working on this. Interestingly enough, jacobs, the fellow whos charged with violating a law prohibiting that had to rooms. There was very unusual. There was more unusual thing that it was represented by a lawyer called the prince of the american bar. He was one of the man who defended Andrew Jackson when he was impeached. It was kind of curious that this carmaker could end up with one of the top lawyers in the nature representing him. That wasnt the case with lochner, he had a regular roar. And he made some serious mistakes as we can talk about later. So he takes it to the new york courts. And he appeals his conviction under the bake shop law. And it was a criminal conviction. I think he was actually incarcerated for. Im not sure but i think it is true. He was fined 50 dollars for the second time. But i think he didnt want to pay. I think thats why he had to go to jail because he didnt want to pay. What can you tell us about his pursuit in the new york case. After he was convicted, he didnt defend himself. He didnt plead no contest. He refused to play. His attorney said that, he what he was charged with did not constitute a crime. I think that was because he intended to take it to the appeals court. Thats the only reason i canco think of her doing that, if i am rights, and maybe he was just hardheaded. Then it went to the Appellate Division of the Supreme Court of new york, which is actually the first level of appeal new york. Theyre the conviction was upheld by a vote of three to two. That was a first time is attorney raised the issue of liberty of contract. He used the terms, right to pursue a lawful profession, in his brief. It went three to two in and he appeal to the next level at the new york, at that level they want to a vote of four to three. A majority of the judges in new york decided that this law fell short. So he lost . And the law. One thats why we ended up in the Supreme Court. Next were gonna visit the Supreme Court appeals room and learn more about that part of joe lochner story. Supreme court of new york, 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 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 and employers that they were working with have those opinions. 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 called collier platt. 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 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 has 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 . Randy 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 the 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, that meant all these laws could be passed and there would be no vetting by the Supreme Court as toxd 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 and 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 holmesposition that was more radical than that. It would not have allowed proof to be introduced into the court. Interestingly, 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 joe lochner able to get the Supreme Court to take the case . Prof. Uybarnett im going to tuo paul again. 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 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 never licensed to practice law in new york. So essentially what happened a, the case was closed to never getting to the court. And, by the way, weismann never called himself an attorney. 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, by other president s, it upheld economic regulations before the lochner case, so it wasnt clear that it had a lock on the outcome. 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 i know has a favorite majority opinion. Majority opinions are written by committee and are there to attract votes. If you have a single the center 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 . 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. 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 timein history for most of my life. I think not. 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. He 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, joseph mckenna. 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 on business. 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. On 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 upheald. The government is part of the contract. So both of those cases were 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 a mess 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 wicked Lochner Court did that. Just the one provision was struck down. Ms. Swain we will hear more from 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 would have had a pretty good idea of how he would have voted if he had been on this court 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 arbitrary 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 why 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 heats 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 that treats similar 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, like 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 than a lawyer and more like a lawyer they had 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 were 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, in a relatively new Development Area 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 that the democrats had made such an issue of the Civil Rights Act that they would repeal the act, which they had promised to do. Itd 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 did 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. Prof. Barnett 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, here is the real artist in cake bread, not to mention the american pie. The housewife cannot bound her hours of labor. She sometimes works hard into the night, it never seems to occur to these unbalanced legislators to conclude include within the purview of the statue. Prof. Kens he had the strongest statement but two of the judges, on the court of appeals made the same kind of comment. Judge obrien, i think was the first. He said 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 law that he had an image problem with respect to this case. Julius mayer. What that quote goes to is the alleged arbitrariness of the law which would limit bakers but not limit other employees, who were also engaged in occupations today we would consider were unhealthy. In fact, much of what people did was unhealthy, which was why the unions were formed to begin with and why you had health and safety measures. But why single out the bakers . That was considered to be arbitrary. The miners could be distinguished, because we know it is an unusually dangerous occupation. You are probably old enough to remember when there was mining disasters on a regular basis, like airplane crashes. 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 cannot be said, the court said, the same cannot be said about bakers as well as many other trades. They would not be subject to a maximum hours law that would, make the law arbitrary under the standard of the due process of law. It requires laws not the, not be irrational and not be arbitrary. Ms. Swain how long after it was argued did it take for the court to return its opinion . Prof. Kens it did not take as long then as it does now. No question about that. Ms. Swain we talked about how Justice Peckham originally started out in dissent. Here is a little bit of what, in this 54 decision, judge peckham wrote. There is no reasonable ground for interfering for 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 are not equal in capacity of men in other trades or 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 of action. What is he appealing to there . Prof. Barnett is appealing to arbitrariness, that there is no reason to point out bakers over other occupations. That was the historic standard of due process. The state courts prior to the federal courts, and once it is in the 14th amendment, it is in state laws as well. That is what he is appealing to. Whereas, he could distinguish miners, and those in an unusually dangerous occupations. Ms. Swain Justice Holmes wrote the following. Ms. Swain what is he saying . It is made for people a fundamentally differing views, and the accident are finding certain opinions natural unfamiliar, or novel and even shocking, but not to conclude our judgment up on the question whether statues embodying them, and like with the constitution of the United States. What is he saying. Prof. Kens he is attacking the notion of liberty of contract. He is saying what it is is a representation of laissezfaire economics. He believes the majority is taking laissezfaire economic theory and applying it to constitutional law. Prof. Barnett which i think he was wrong about. The majority was taking the standard and applying it here, and suspecting Something Else was going on besides the health and safety law. I agree with what paul said a minute ago, which is very important. The nature of the police power, the scope of the police power was being contested. Xdso, this is really what the debate ought to be about. Not about liberty of contract. In general, we are all 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 the 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 Holmesstatement, later on, he takes an entirely different approach. He says there is a theory of free speech and the constitution, that ideas need to survive in the marketplace of ideas. He says that is the theory of our constitution. He was capable of finding theories in the constitution when he cared to do so. Ms. Swain lets go to roberta. Good evening to your distinguished panel. To answer your previous question, the lochner case was argued for two days. It was decided less than two months later on april 17. I have a few questions. One requires background and addresses the main point of liberty of contract. Where did this come from . 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 to keep de facto slavery intact. While many freed slaves were known as freed men, and wanted their homeland that was not happening, too well. Then there was the freed mens bureau. They went to the south to make a living. But they were not getting 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. They wanted free labor. So what they came up with was this concept of having people, the slaveowners sign a contract whereby they would guarantee the freed men wages. These contracts were not free in the sense that most of them were one year contracts where the freed men could not leave the plantation. A lot of them had provisions, where if there was a bad crop, the wages would get docked. But at least it was something the freed men could hang their hats on. And if they kept their part of the bargain, they would owe them money. Ms. Swain with apologies, our time is short. Bring this to a question. That is why the provision that became the 18th amendment, my question is, how does the enforcement of liberty contract, formulated as a shield to protect employees from employers taking advantage of them, how did it become employers using it as a sword against employees . That is my first question. Ms. Swain im going to have to stop you there. Thank you for your call. Prof. Barnett there are two parties, it depends which side the court will have to deal with. I want to mention, he makes an important point. In the south, there were all kinds of ways in which southerners were trying to reimpose the subordination of blacks, and try to get around the 13th amendment. Alabama did it by criminalizing breach of contract, if somebody would sign 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 labor as a way of doing the jobs, and keeping blacks under control of what their former slave masters were. That law was struck down by the lochner era of court. You know who dissented in that case . Justice Oliver Wendell holmes. He thought that law was perfectly constitutional. Even though the Lochner Court thought it violated the 13th amendment. Ms. Swain i only have 15 minutes, and so much to discuss about this. Let me ask you to compress 35 years of history. You said this initiated the socalled lochner era. What is that refer to . Prof. Kens it is a bit of a misnomer, lochner becomes the symbol of this era, and subsequent due process, the heart of this battle. This is a battle over Franklin Delano roosevelts attempts to deal with the depression through government action. The flaunting of those attempts by the Supreme Court up until 1937. What happens in 1937, the story of roosevelt trying to pack the courts. That lets listen to Franklin Roosevelt in 1937 complaining about the Supreme Court in a fireside chat. President roosevelt as improperly the court has said set itself up as a third house of congress. A Super Legislature as one of the justices have called it, reading into the constitution words and applications which are not there and which were never intended to be there. We have, therefore, reached the point as a nation, where we must take action to save the constitution from the court, and the court, from itself. Ms. Swain and what was that action . Prof. Barnett he tried to pack the courts. He tried to pass a statute where the numbers would be increased and he could appoint justices until the older justices retired. It was ill received by democrats, they had a huge majority. He had the votes for that, but he chose not to do that. Leading democrat chairs were not friendly to this courtpacking scheme. Ms. Swain a viewer said the socalled lochner era came to an end in the court itself. But in 1937, what happened with hotel versus parish . Prof. Kens they said two things about the lochner case. They said the constitution speaks of liberty, not liberty of contract. It rejects the notion of liberty of contract. The second thing it does it, talks about the kinds of burdens on society, rejecting the whole notion of laissezfaire economics saying that substandard wages turnout 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 rules in that way. Prof. Barnett i think it is very important to say that the term substantive due process was never used during the lochner era. That term was made up by progressives to criticize what the court was doing because they held that by protecting a substantive right, they were going beyond the scope 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 a doctrine of the court. I also want to agree with what paul said about the socalled lochner era. Lochner did not get any traction until Teddy Roosevelt was running as a progressive for president , and he started making the bakeshop an issue in the campaign. Secondly, paul was right. There were two issues in front of the court at this time. One was the due process cases about the irrationality and improbability of the laws. 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 favoring the lochner case. But we were not doing a due process case. The case of lochner v. New york had nothing to do with the challenge to the Affordable Care act. Prof. Kens it is a confusion, but not a confusion. He restricted the ability of government to get involved. Prof. Barnett the confusion is to label it lochner. But somehow lochner, as a case, had anything to do whatsoever to do with the limits on federal power. Swain even recently, as one of our viewers says, he refers to the lochner case 16 times in his dissent. On same sex marriage. What is your view . Lets listen to what the chief justice had to say about the samesex case and lochner. Ultimately, only one president interprets this. Lochner v. New york. In that case, decided in 1905, the court struck down a law limiting the hours were bakeshop employees. The court did so based on its own conception of loyalty, in particular, if view that the constitution protects the general right 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 court saw as an interference with the rights of the individual. The lochner era is now considered to be one of the most unprincipled times in the courts history. The problem with the courts approach, was not that they were undesirable, but that such an unrestrained enterprise had no basis in the constitution. Ms. Swain what should we understand about this . Prof. Barnett i hope your viewers noticed that what chief Justice Roberts said sounds exactly the same as what Franklin Delano roosevelt said. They are articulating the exact same position. Many conservatives simply imported the roosevelt new deal jurisprudence and made that part of the their conservative politics. It was in fact, the progressive restraint, criticism of lochner that gets imported into modern political conservative argument. It is the liberals on the court, the left on the court, as early as the 1940s that started abandoning the restraints and assuming an activist role. Previous to that, they had criticized. We have done a flip here. Now it is conservatives who are unreconstructing roosevelt new deal. Both left and right in this respect are all operating in a postnew deal mode. Ms. Swain we have several major citations of the lochner case. 1923, adkins v. Childrens hospital of washington, d. C. 1965, a very important case, the right to privacy. 1973, roe v. Wade. In the last three cases are liberals and they were citing the dissent. Here is an example of shifting politics. Prof. Kens as the court flipped, i think the liberals, being in favor of judicial activism, which dick nixon ran on the idea he is going to appoint judges who will follow the constitution. It was liberals who were the activists. I think that was the anomaly. I think by and large conservatives have been the activists overtime. The conservative side of the docket, i think your term was a post new deal mentality, i think that is turning around a little bit now. Prof. Barnett i hope it is. Prof. Kens i think it is turning around a little bit now. So at the same time, chief Justice Roberts complaining about the liberals, and Justice Ginsburg talking in a National Federation about the conservatives uprising. There are talking about the two different elements of lochner. One is talking about traditional judicial activism, that is roberts. And one is talking about the court interjecting itself into decisions about economic policy, and that would be ginsburg. Ms. Swain i am going to take a call, charles in new jersey. I dont have too much to add, except my uncle joe, that was what my father called him. My fathers uncle. Joe lochner. I dont know too much about the case itself, but uncle joe ran that bakery. From what my father told me, he used to employ a lot of german immigrants. They would come over and they would have a place to work. Ms. Swain charles, in your family, is joe lochner wellknown for his place in history . Charles yes. My sister is an 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. Prof. Barnett 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 close to each other. I think there is some indication this was a setup case between the two of them to try and 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 for people. People coming over from germany. Ms. Swain thank you. I hope it was good to hear more about your relative 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 . 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. It is the premise that professor ken stated, that the unions and employers of bakeries having a definite interest that not being involved in the outcome of legislation to create this law that caused lochner v. New york. My concern is, from a historical analysis perspective, should you be leery because there is any no Public Record of them being involved, there could have been something behind the scenes, especially if it wouldve benefited them or stymied another business in corruption or bribery of the legislative or judicial level. Ms. Swain thank you. Prof. Kens i think that is a good question. But i have more than not finding anything. The unions were not powerful enough to get this passed. The bakeries were completely different. The powerful bakeries were the cracker bakeries. They had no interest in this bill. I think that is a good point of view, but i feel prof. Barnett they had no interest in the maximum hours . Prof. Kens not the bakeries that were actually cracker industries. Prof. Barnett but the bakeshop union did not represent them. Prof. Kens absolutely, but it did not have any power. Prof. Barnett but it was a union initiative. Prof. Kens yes, it was a union initiative. Ms. Swain thisll be our last call. Hi, ken. Ken i was originally going to ask did this precede the publishing of upton sinclairs, the jungle . A lot of unions got their foothold then. It was an important part of our history. I wonder, how much this was affected. Barnett yes. There were some black unions, but there were small and specialized and they were all male. Although the progressives were all union, it also means that the defacto or maybe on purpose, they were also a white male, and 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 and selves. We think of unions differently than unions were there. To answer your question, the courts were aware of union agitation. Lacking health and safety reason, but adequate, like the rest of the bill, we might suspect other motives responsible for the passage of it. For example, this was actually prounion as opposed to management legislation. And the courts said the legislatures and supposed to put their self on the side of one or the other, which is what paul was saying was going on in terms of the police power. Ms. Swain there is beginning to be a revisiting of lautner especially among libertarians. Our last clip is about senator rand paul. [video clip] senator paul the right to contract as part of your due process. Someone cant deprive you of determining how long your working hours are without due process. So president obama is a big opponent to this but i would ask him come 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 they take away your life and liberty without due process and the court rules no. It expands the 14th amendment and says to the people you have unenumerated rights. Ms. Swain as we close, you write in your era that clearly lochner is not dead. We have just seen evidence of this. Prof. Prof. Kens rand paul is talking about the active judicialism. Rand paul is talking about a certain view of liberty that not everybody shares to the notion that you entered into this contract completely free, at arms length by the way, doesnt hold and a lot peoples minds. Prof. Barnett naturally, i am sympathetic to what senator randy says. He also fit related sites my book, restoring the resumption of liberty. All liberty should be presumed to be valid and government should only restrict them if theres a good evidence. You should be able to present evidence of a good reason in court. They were unable to do it in the bakeshop act. That is what judging should require of legislatures. Ms. Swain and so ends our episode on lochner versus new york. What you can do is look at a book written by tony morrow, 12 cases that we selected for the series. If you go to our website, www. Cspan. Org landmarkcases, you can purchase it and we can send it out to you quickly. As we close tonight, let me say thank you to Randy Barnett and to paul kens. Gentlemen, thank you very much. Announcer up next on American History tv, the Supreme Court Historical Society hosts a discussion on the 1905 u. S. Supreme court case lochner v. New let me now mention how much we appreciate the fact that Justice Breyer has agreed to host this evening. We are sincerely grateful to you for that. Brief comments about Justice Breyer cant begin to do justice to him, so i will have to be unjust in light of time constraints that i am subject to