Brief comments about justice brier cant begin to do justice to him, so im going to have to be unjust in right of time constraints im subject to. Justice brier has always been remarkably generous with his time in supporting society projects. And indeed in less than two weeks on june 6th at our annual meeting hell be delivering the societys 41st annual lecture. And of course hes doing these extra projects for the society at a tremendously busy time for him and for all of his colleagues on the court, so justice brier, thank you so much. Some background on justice brier. He was born in San Francisco. He eventually after stanford came east, farther east. Hes got a ba from Magdalen College at oxford, went onto clerk for Justice Arthur goldberg, this court he served with great distinction in the justice department. He serve said as chief counsel to the Senate Judiciary committee at one point and served in other similar roles during that period of his career. He has taught at Harvard Law School at the Harvard Kennedy school of government, at the college of law in Sydney Australia and at the university of rome. In 1980 president carter appointed justice brier to the United States court of appeals for the first circuit, and he was a chief judge there from 1990 to 1994. And then in 1994 president clinton nominated him as an associate justice of the Supreme Court to succeed justice blackman. He took his seat on august 3, 1994. He has also been a prolific writer not just of judicial opinions. Many books, wonderful articles on a very wide range of important legal subjects both domestic and international. His most recent book was published last september. In a nutshell in my view and im sure you will agree with me justice briers career is powerful evidence of the enduring contributions that a single individual can make to society when he or she is blessed with a keen intellect, an innate sense of decency, a dedication to the rule of law and a determination to make our country and our world a better place. It is my great honor and privilege to present justice brier to you now. Thats a pretty long introduction, very nice but im going to give a fairly short introduction and youll hear what you want to hear which is about lochner. Im glad youre all here. And i do want to say that the society does a terrifically good job. Its job is basically to tell its members and i hope most of you are members and people who arent members and judges in our court and everyday else in the world something about the history of the court and something about what we do. Thats a very, very useful thing. I cannot tell you how often ive talked to audiences i love to talk to School Children particularly because ive got to get them interested and explain what we do. And by and large they dont know. So thank you for what you do. You have teacher training programs. You train high school civic teachers and you sponsor these lectures like the leon silverman lecture. And leon used to give very long introductions to the introducer, too. This is a series called it has four parts. This is part 2. The four parts are on the court and the progressive era. Now, tonights event is a panel rush to the guilded age, thats steven field, and the Supreme Court under chief Justice Morrison r. Waite. Now Randy Barnett is the professor of legal theory at the georgeten university center. Hes director of the Georgetown Center for the constitution. Hes published many, many things. His most recent book is our republican constitution, securing the liberty and sovereignty of we the people. Hes also written restoring the lost constitution and between the two is our moderator. She is a professor of law at the Georgetown University law center and an author, and a forthcoming book misreading law misreading democracy. Please join me in welcoming professors kens, barnett and north. [ applause ] well, on behalf of the panel thank you very much, justice brier, for that wonderful introduction. And i am delighted to be here. Hopefully im one of the last moderates in washington to moderate a debate between two of the most distinguished lochner dissolers in the country. If youve seen an earlier cspan performance you will find it entrancing about the facts of the progressive era, the nature of the case, how Teddy Roosevelt made the big cake shop case famous, but you wont hear much about the key legal concepts that drove the place in many respects from our current constitutional law. So i hope today we will hear from these distinguished scholars something about these concepts, and they include the very notion of right, of substantive due process, the presumption of liberty and a somewhat forgotten concept called class legislation. Im going to give the honors at first to professor kens as we discussed on the phone ural for ten minutes, and then professor ba barnett for ten minutes and i will attempt to intervene to guide the conversation on some of these interesting concepts. And i want to thank justice brier for his kind introduction and thank the Historical Society for inviting me to participate. I appreciate the opportunity to take part in this conversation about lochner v. New york. A case that has to put it mildly has not enjoyed a very good reputation. Chicago law professor david a. Strauss first captured lochner legacy with a question. Who would ever cite thisicacy in a Supreme Court brief except to identify it with your opponents position . Oats sif to say a majority of lawyers constitutional scholars and judges from all sides of the political and economic spectrum ranked lochner along with dred scott as one of the worst decisions in constitutional history. Of course there are some prominent and distinguished exceptions. I suspect randy will try to convince you the lochner case does not deserve its reputation. I am here because i think it does. One we both agree and recognize the importance of liberty in our political system and our constitutional tradition. I would like to focus on the spirit of liberty not from my own perspectives but what liberty meant to people. Lochner is famous or infamous for justice peckhams use of the doctrine of liberty of contract to overturn a law limiting the hours of bakers to ten hours a day or 60 hours a week. Even though liberty of contract is not among the rights expressed in the constitution peckham concluded that the general right to make a contract including the right to purchase and sell labor was part of the liberty of the individual protected by the 14th amendment. It was peckhams use of the liberty contract that caused justi Justice Holmes to criticize the opinion. It later inspired informers like Theodore Roosevelt to charge the court had created an insurmountable barrier to reform. The curious thing is that the lochner case actually has nothing to do with liberty of contract in any meaningful sense. In its most fundamental character a contract is a voluntary agreement between two people. It involves some degree of meeting of the minds and dealing at arms length. Those conditions were clearly not present in Employee Relations in a newly industrialized economical of the turn of the 20th century. The actual target of this law that was overturned to lochner was the condition of labor in new york seller bakeries. These were kip ofl matypical of many wage earning jobs of that era. Located in basements these bakeries were damp, dark and filthy and they had ceilings as low as 58 1 1 2 feet high. Poor ventilation cause them to be stifling hot when the ovens were on. And the bakeries work involved heavy lifting and their pay was low compared to other jobs. Its important to understand that the workers were typically paid by the day or by the week. And the number of hours that a person worked was unilaterally determined by the employer. The bakers main complaint was the number of hours they were required to work. By 1895 when the bake shop law was passed 74 hours was typical and many bakers worked more than 100 a week. Why in the world would anyone in their right mind agree to work in such terrible conditions for so many hours and so little pay . The answer is that the economic circumstances gave them no choice. As one advocate of the shorter Hours Movement put it an empty stomach can make no contract the contract dwarntied little to workers at the time besides what might be better described as the right to indenture oneself for the day or for the week. Now, if the doctrine of liberty of contract is that raises the question if lochner was not about liberty of contract what was it about . The answer is that it was part of a more sweeping history. That history held that the constitution implied businesses and individual tuesday be free from government regulation. This theory was revolutionary, and it was controversial because it ran chrontrary ontrary to th traditional american views of Property Rights and the state to regulate in the public interest. It did not originate with lochner but lochner came to symbolize the courts acceptance of it. The right to be free from government regulation is not expressly guaranteed in the constitution. Therefore any argument in favor of it depends on the claim that it is a dominant characteristic of our constitution. Since the 1980s many legal historians have attempted to do just that. They have maintained it is an expression of a longstanding american tradition of limited government reflected in the distrust for government the theory of free labor or aversion to class legislation. While theres some truth to these observations a closer look at history demonstrates when it came to regulation of business the tradition of limited government existed more in theory than it did in practice. States routinely regulated the economy, licensing biltding and regulating public markets, controlling the quality and price of common goods, even the condition of employment which was then called the law of master and servant are common examples of the state regulating the economy in the public interest. There may be a tradition of government in american theory, but the prevalence of such a wide range of regulations demonstrates another tradition actually predominated in daily life. That tradition was expressed in terms of the states duty to use its authorities described as the police power to protect the rights of the people or community and is rooted in an american ideal that links liberty with popular sovereignty and democracy. And the tradition wasnt just in daily life but constitutional doctrine. Chief justice taneys opinion in the 1937 Charles River bridge case. The object of all government is to promote the happiness and prosperity of the community of which it established taney wrote. We must not forget that the Community Also have rights and the happiness and wellbeing of sever citizen depends on their faithful preservation. In 1877 chief justice wade expressed the same sentiment for the majority observing that under the police power the government regulates the conduct of its doctors one towards another and the manner in which he should use his property when such regulation becomes part of the public good. An understanding that private individuals and businesses can be every bit as much a threat to liberty as government especially when those private individuals and businesses wield Enormous Economic power. Lochners liberty of contract doctrine lasted until 1937 when it was rejected in west coast hotel vs. Parish. Then writing for the majority the chief justice refused to rurp to the old tradition that recognized the authority of the states to use their police power to balance Property Rights with the rights of the community or public good. States had a wide field of discretion to protect the health and safety of the public. But he also emphasized that the police power included promoting peace in good order through regulations designed to ensure wholesome conditions of work and freedom from oppression. The chief justice then concluded the exploitation of a class of workers who are in an unequal bargaining position warpt to Bargaining Power and are thus dedefenseness are not only detrimental to their health and wellbeing but casts a direct burden on the support of the community. I began by observing that politicians, judges and constitutional scholars still tend to rank lochner along with dred scott among the worst decisions in history. In my estimation lochner deserved its reputation because it rejected or manipulated the common understanding and regulation in liberty and coming regulation that was predominant in the tradition before 1990. It existed more in theory than in practice and failed to recognize and appreciate the realities and actual conditions of america in the newly industrialized economy. Thank you. Now to professor barnett. Thank you all for coming today. I agree with paul that we do agree quite a bit. There is a lot, however, we disagree about. So the question is how do we adjudicate such a diskreemt in front of an audience like this . Let me disagree with one thing of the many things paul just said. He said lochner was part of an era in which there was supposedly a belief and a right to be free from government regulation and thats what makes lochner so equal because it stands for the proposition there is a right to be free from government regulation. And i can prove that this is false, that there was a belief and a right to be free of government regulation. And i would rely on a case to support the proposition. And the case i would rely on is the case of lochner v. New york, the case were discussing today. Now, why do i say that . Because the statute at issue was called the bake shop act, and it was an extensive regulation of the health and safety of the operation of bake shops. And it was passed to address the conditions that professor kens rightfully pointed out what bake shops were like. There were tenement bake shops like this. The regulations including regulating the heights of ceilings, regulating the competition of floors. Regulating how often it had to be whitewashed, the locations of the ovens and regulating the washroom facilities and regulating the animals that could be present on the premises, cats only. Regulating ventilation. It was an extensive body of regulations. And if you want an easy place to identify the text of the statute, you want to find the text of the statute without having to search too hard all you have to do is read the majority opinion in lochner because they cite, they reproduce the texts of the bake shop act. No one questioned the constitutionality, nobody including the majority of the Supreme Court in the lochner case including justice rufous peckham who cited the entire act as an example of a legitimate health and safety law. So it seems as though that was an extensive regulation, set of government regulations addressing a health and safety concern its simply demonsstrably false that if anyone thought there should be no regulation of the economy or Economic Activities it certainly was not the Supreme Court in the lochner case. At issue in the lochner case was a single provision of the bake shop act and that was a provision that restricted the working hours of people who worked in the workshop. But the employees were limited to 60 hours and could not work more than that. And so there was one provision that was under challenge in the lochner case and that was the provision and the only provision invalidated. All the rest was considered completely entirely unconstitutional and the problem the court had with that progression was identifying it as a health and safety regulation because they could not see a close fit between that prohibition as a legitimate health and safety law. And in reaching that conclusion the court relied on an extensive appendix to the brief filed by the challengers to the statute which cited general statistics about the health and safety of the baking industry and the court cited that or based its opinion in part on that, those empirical studies cited briefed thin statute. Given that how did lochner assume the case . And i do agree lochner is decided to be a terrible case ranked up there with dred scott. How did it come to pass . This is constitutional narrative and one of the things i teach my students is that thapractice of constitutional law for example i also teach contract law. With contract law you learn about the doctrine of consideration, you learn about the statute of frauds, you learn about a doctrine and apply that doctrine to facts. Constitutional law can be practiced like that but by and large its not the cunocical cases are everyone agrees are rightly decided and need to be up held. And the anti are ones considered to be evil and wrong, and if the ones youre making or you convince the court your opponents are making are going to lead to endorsing one of the anticanonical cases, you have to know, and lochner is clearly in what we would call the anticanan, but when did it get there. One would think it had been there a very long time. Was it there when it was decided. It turned out it wasnt there. When it was decided, it was a pretty mundane case. It did make the newspapers, thats true, but the newspapers by and large editorialized in favor of the lochner case. The New York Times did, the Washington Post did, the Los Angeles Times did. They editorialized in favor of the case. There were a couple that didnt, particularly the labor union papers didnt care for the case. But it wasnt considered an unpopular case at the time. The person who made it sort of the Citizens United of the day, shall we say, was none other than republican Theodore Roosevelt, progressive republican Theodore Roosevelt. Roosevelt served as president , and then he was out of office for a term. And then he sought the nomination of the Republican Party again in 1912. And as he ran for office, one of the planks on which he ran was condemning the interference of the Supreme Court with progressive era legislation. And he gave a very famous address, a very, very well attended address covered on the front page of the New York Times in Carnegie Hall in which he lambasted the Supreme Court and he lambasted what he called the bake shop case, thats what it was called, the bake shop case. Cases used to be called by their generic names like the lottery case, the slaughterhouse case, and it would be nice if we were to do that again. The Health Care Case we could call it, contraceptives case, but we dont do that. We have to memorize these names. It was the bake shop case, and he extolled the virtus of his favorite justice who he put on the court in that speech, and it made it into the headlines of the New York Times that he was praising holmes. Thats what made the case famous. He was denied the republican nomination. He then moved to a third party. It was called the progressive party. He helped form a new party called the progressive party. He ran for that partys nomination, and ran as a thirdparty candidate under a party we call the bull moose party. It was actually the progressive party. It split the republican vote and allowed Woodrow Wilson to become president. And that was lochners first appearance on stage. He had been famous, was now going to be famous thing from now on, but it went into obscurity after that. It wasnt much known about, much talked about. There was a big debate about the role of courts, however, and Justice Holmes opinion, the dissenting opinion in the lochner opinion made him one of the champions of the progressives arguing against restraint against progressive legislation, arguing the courts had no business interfering with the policy making at the state and federal level. The call for judicial self restraint became a clarion call, and holmes was a champion of that. And so matters stood with lochner being relatively unknown until, if i take a brief interlude, because once the Supreme Court was almost entirely appointed by progressive president s, and we have a progressive president in Theodore Roosevelt and then in Woodrow Wilson, and then herbert hoover, and finally in franklin roosevelt. There were four progressives. By the time it was completely progressive and had adhered to this doctrine of judicial restraint, something happened that caused some of the justices to rethink their views. The republicans took control of congress in 1946. And once the republicans took control of congress in 1946, the idea of judicial restraint started not to seem like such a wonderful idea anymore. So that the idea that no matter what congress would do, we would defer to it, some of the justices started to have second thoughts about this. And a very, very interesting article was written in Fortune Magazine about this development by a historian named Arthur Schlesinger jr. , who was a very famous new deal progressive historian, harvard man, good harvard man. He writes the story and divides the court up into two contending groups. The first group he calls the lions of self restraint. And they are people like Felix Frankfurter and others. The other group he calls judicial activists. The first time we know that the term judicial activism was used in this article. This was associate would the yale liaw school, and this was n the article. Highly recommend it to you. And in there, he says that what the yale people had decided is they were starting to reconsider this restraint idea, that it turns out, they said, the problem before wasnt the judges were acting politically and getting in the way of popular legislation. We were kind of off base on that. The problem is, they said it is inevitable that judges would act politically. The question is what would they be acting politically for. The problem in the old court is they were acting politically for the wrong things like economic liberty and not for the right things like social justice and other things. You had this split. He did associate one side of the court with the yale law school. Still, lochner hasnt played a role here. We do now have a split on the Supreme Court, all between good new deal judges. We have the new deal conservative restraint judges. The postnew deal activist judges. Theyre fighting amongst themselves on the court, and that brings us to the 1960s and the case of griswold v. Connecticut. Its decided. What does it do . It protects an unenumerated right of privacy, in this case to use and not only use but to possess, and not only to possess, but to sell contraceptives. The question is what gave the court the power to invalidate a connecticut law to possess and use contraceptives. The answer that Justice Douglas gave, a good yale man, the answer that Justice Douglas gave was that it was the right of privacy, and he relied on lochner era cases like meyer v. Nebraska in making that case. These are cases decided on freedom of contract grounds, by the lochner, and they themselves relied on the lochner case. At some point, the challenge was raised to him of doesnt this give rise to this economic liberty case . Like this lochner thing. And at first, during oral arguments, the court wasnt quite sure what the lochner case was. They thought it had to do with the size of bread. Wasnt that the case of bread and what size bread should be . They were not quite sure what the lochner case was. It turns out there was a case like that, but it wasnt lochner. So they decide the griswold case. Its mentioned in the court now because the justice says were not going to take the road that was urged upon us. Now Justice Douglas mentions lochner. Then where it really comes to play is in gerald guenthers play book. This was published in 1970, puts lochner in the case book. And pairs it with griswold as a way of questioning whether what the court is up to is really any different than what it used to do, and then, in 1975 comes the new edition of guenthers book. Comes out in 1975, and roe is decided. Roe v. Wade is decided. Now, Jerry Guenther expands the lochner case to a whole section of the book. It starts with lochner, then it goes through griswold and then it goes through roe. He calls this the lochner era. Before 1970, i think there was only one reference to anybody referring to the lochner era as an era. He calls it the lochner era. In 1975, he has this big thing, i think the title of the chapter was substantive due process, rise, decline, and revival. Rise, lochner decline, and revival with griswold and roe. I happened to be law student in 1975, and i took constitutional law from larry tribe. I used the 1975 ninth edition of guenther, so i read this chapter as a lieu student and read the whole thing and thought, wow, this is interesting. I really love the lochner case. Thats great. So maybe that means that, you know, roe and griswold are okay because lochner is okay, so maybe griswold is okay. Actually, i think the sociology was backwards, that is because a lot of people liked roe and a lot of people liked griswold, when you put lochner up against it and say look what theyre doing is the same thing as lochner, i think this caused people to rethink lochner. Even though lochner was still objectionable, it wasnt objectionable for the same reason it used to be thought to be objectionable, because judges were interfering with the political process. Now thats why its not objectionable. When larry tribe published the First Edition of his treatise in 1978, he has a whole section on lochner, a whole chapter on lochner. He says the problem with lochner was not that they got the rule of judges wrong. The problem with lochner is they were protecting the wrong right. Freedom of contract was not a right that they should be protecting. Okay. So now, lochner is it used to be very, very bad. And now its only very bad. Used to be the wrong right and the wrong role. Now its the right wrorole and wrong right. I will close with one anecdote that i have personal knowledge of. One of my earliest articles on constitutional law was sort of telling the story about how it was thanks to Jerry Guenther and his case book that lochner actually started to get a somewhat better reputation. You had scholars saying kind of nice things about lochner while he was criticizing it, it wasnt so terrible as it used to be. So i credited guenther with having elevated the stature of lochner because of the way he juxtaposed griswold and roe and lochner. And i got a handwritten note, which unfortunately, i cannot find, so youll have to take my word for it. I cant produce the note, but i got a handwritten note from Jerry Guenther expressing his shock and dismay that his case book could possibly have the effect that i described. Because his whole purpose of putting these together was to undermine roe and to undermine griswold. The opposite of what he wanted to do is actually to elevate lochner, and yet it may have been a case of unintended consequences. So lochner has gone from being very, very bad in the minds of some to only being very bad. In the future rounds, well discuss whether thats even a justified treatment of lochner. Thank you. I want to press you both a little bit [ applause ] that was an incredible course in constitutional law. I dont get to take my colleagues courses often, im afraid. But i have spent a little bit of time myself with the period, and i have to say that i want to press you both on the concept of right that you are using. Because its my feeling that when you go back into 1905 and you look at the concept of right, that it looks so much different. We didnt have the idea of substantive due process at the time. I think you both would agree with that. And ted white famously has written. And when i looked at the average not the important case like lochner, i found dozens and dozens of states like this that challenge the contemporary equation of lochner with the notion of right that might be in more contemporary cases as suggested by guenther. So you are comparing in essence apples and oranges. So heres just one quote which will seem strange to the audience, and then ill let them both respond for five or ten minutes. This is a case called manigoldv. Springs, but it says the police power, which was the core concept of constitutional law at the time, is an exercise of the sovereign right of the government. Notice right of the government. To protect the life, health, and general welfare of the people, and is paramount to any right under contract between individuals. Did we have a strong contract right at the time of 1905 . Is it correct to compare that strong right with strong rights that we have seen postnew deal . Well, let me answer that first. Part of my answer would be a little bit of a response to randy because it falls right into that area. Randy is very convincing about lochner not being unimportant in its time and also be a favorable case. But his description kind of glosses over some key things. And these are the rights. But before i get to the rights, let me point out that the bake shop, the reason that only one provision of the bake shop act was decided by the court was because thats the only part of the bake shop act that was before the court. Lochner was convicted of a crime, for violating longer hours the shorter hours of the bake shop act. But the part that randy glosses over has to do with right. You know, the general i mean the police power is not defined anywhere in the constitution. In fact, the police power, i would say, isnt defined anywhere. If you look at the old constitutional treatises, they would say the police power is all the power thats reserved to the states. Its sovereign, its not defined. What randy glosses over is he keeps on talking about health and safety. The police power goes way beyond health and safety. And as victoria pointed out, it goes to protect, you say the right of the government, but actually y have seen the duty of the government to protect the general welfare. So one thing is that we glossed over the notion of police power. The second thing that randy glossess over in his description is the burden of proof, or what he would call the presumption. That presumption up to lochner and really kind of including lochner, because one judge who decided, and thats harlan, was strongly in favor of the legislation and strongly in favor of the say. The way justice harlan, his dissent in lochner put it, the constitution, the statute cannot be overruled unless its plainly and palpably beyond all question in violation of the constitution. For that reason, he would not have overruled the shorter hours provision of the bake shop law. So i think these two concepts kind of fit right into your story. And i think that if we look backwards, i think one of the differences between randy and i is i always am looking backwards where hes looking forwards about this case, not always but in this particular instance. If you look backwards, that notion of police power was even stronger, i think, than the period between lochner and lets say west coast hotel versus perish. This is an area where we agree quite a bit, and that, one of the reasons why lochner has been misinterpreted, and paul does not do this, and he didnt do it just now, is by reading back into lochner what is the way we do substantive due process today. The way substantive due process is done today is that you basically have essentialliane irrebuttable approach to the basis test, which does not apply if you have what the court identifies as a fundamental right. If you have a fundament right of which there are a limited number, you might get super deuterprotection. Strict scrutiny or Something Like strict scrutiny, and very few statutes are able to survive this. You either have no protection of liberty or great protection of liberty. The particularly liberty. You have to keep the number of liberties to be protected relatively small because if you dont, it will overwhelm the government. What happens is, thats the way substantive due process is done now. You look back at this case and say what they did is just elevated freedom of contract to the status of fundamental rights like we would do to privacy today, and they were wrong to do so. But thats not what they did. Its not what paul said they did, and i think paul is exactly right. This was a Police Powers case. Vick is right, also. This is a Police Powers case. The premium was not placed on right. Not much time was ever spent identifying the right, justifying the right like we do today. The premium is all placed on the exercise of the police power. Its not what rights we have. Its whats the appropriate scope of the police power thats at issue. And paul is right. There are narrower scopes of the police power and broader scopes of the police power, and thats what the debate was about. Thats what the debate was about starting in 1868, when the 14th amendment gets enacted and for the first time, the federal government has jurisdiction. The federal government, congress, and the courts have jurisdiction over state laws they never had before. And prior to that, the unenumerated power of the police power, which by the way, is an unenumerated power. Paul is right, its not mentioned in the constitution. If you dont like unenumerated stuff, there should be no police power, but everybody agrees there is a police power, not withstanding the fact its not enumerated anywhere. What is the proper scope of this power, and i think we can rule out one of the answers to that question, and that is the police power is unlimited. Its anything. Its everything. Its whatever a majority in the legislature decides to do is within the proper scope of the police power. I think that would be a very ahistorical view of the police power. Now, we really cannot adjudicate now, at least at this moment, exactly what the proper contours of police power is, other than im freely admitted, but i can identify the standard that was used in lochner and other cases at the time and plirior. The standard is that the police power cannot be used to enact an irational or arbitrary. Irrational and arbitrary. Its a standard where your liberty is being restricted supposedly to pursue some end, but the fit between the purpose and the means, the end and the means, is so loose that we suspect that praerhaps thats n the reason the law is being passed, without maybe going into what the motives were, we can suspect improper motives might be in place that do not relate to the general good, but might be trying to help out some at the expense of others, which was not thought to be within the police power of the state, taking from a to give to b was outside the police power of the state, going all the way back to calder v. Bull. The other standard is arbitrariness. And it was treating some people differently than others without a good reason. And that would prohibit a certain kind of discriminatory treatment, and the question in facing lochner, without giving to what the answer was, and its conceivable that lochner was wrongly decided on its facts without doing something wrong in terms of what it was doing in principle. I dont concede that, but one could concede that and still say this was irrational law because the fit between the hours bakers worked and Public Health and safety just wasnt there. And particularly as applied to other occupations where people work long hours and which were also hazardous. There was not enough fit between means and ends so the law could be criticized as irrational and arbitrary, because why single bakers out . Why do bakers get this special treatment, so to speak, and other people dont get this treatment . What is it about bakers that make them different from others . If you read the opinion in the lochner case, the reasoning is all about rationality and arbitraryinous. Thats the historic standard. And let me close by saying why would that be the outer boundaries of the police power . It may not be the only boundary, but why would that be one of the outer boundaries of the police power . Because the police power, we supposedly live in a country in which there is the consent of the governed and yet government exists that can claim the consent of the governed only tacitly because theres never any express consent to the government. It may be by a few but not by everybody. And then the question is, can you be presumed, can the individual citizen who has rights, the preexisting rights we can talk about shortly, be presumed to have given to the legislature to a majority in the legislature, which is just a body of individual citizens, the power to restrict their liberties arbitrarily and irrationally. And the argument is that that cannot be presumed. Maybe somebody could consent to that if you ask them to, although i would think paul would think that contract was unconscionable, but they certainly cant be presumed. So no one can be presumed to consent to the legislature the power to restrict their liberties arbitrarily or irrationally. So was this such a law . Thats what the court decided. That, randy, as i saundersta it, is not the position of liberty contract, which is the story of many who wanted to rehabilitate it. I think historians generally agree the police power had a prominent effect as the scholars have been suggesting. But one of the things i want to ask you both while i have you is whether there isnt a third way between a strong liberty of contract view and a view that in fact there was no regulation of business, et cetera, because clearly, they did regulate business through police power. Liberty wasnt the only power. So maybe theres a smaller explanation, and that might be that there was labor exceptionalism. Which is to say labor at the time was associated with socialism, with terrorism, with violence, and it was this labor exceptionalism that was so crucial to the future of the new deal. And that yes, the future can make our ideas of cases different as randys fine explanation showed us. But the real key here is something smaller. It wasnt large ideas of liberty of contract which were in fact rather small, or large ideas of no economic regulation because we did get economic regulation in the progressive era, but rather than labor was singled out in this decision for disfavorable treatment as it was in so many other ways where we put labor leaders in jail because of their use of speech. Well, i appreciate this notion of labor exceptionalism, but i see a couple problems with it. The first problem with it is if there was labor exceptionalism, it didnt show in this new york legislature. This was a legislature that was very business oriented, and yet the statute that was enacted and the shorter Hours Movement voted in the two houses of the legislature 1200, and not only did it vote 1200, but it did it twice because the original bill had in it the provision read no person could work in a bakery for more than ten hours. The governors lawyer was worried that was unconstitutional and changed it to no employee, and it went back to the legislature and was voted again. Even 11 of the 21 judges who voted on lochner voted in favor of the legislation. If you take all the new york judges that voted on lochner. So only one judge made this decision. And that was one of the complaints against lochner. And i want to say a couple things. One is about police power. There was an outer limit to the police power before lochner. It comes out of the old contract clause cases involving mostly businesses that received charters and grants and special privileges from the government. And what it said is that the police power was not it was extensive but not unlimited. The limit was the state could not deprive a corporation of its property. It couldnt confiscate its property or deprive the corporation of the essential objects of its grant. That changed after the enactment of a real subtle change after the enactment of the 14th amendment, and it comes in what were called the granger cases. Both the ones that involved the contract claus and in munn v. Illinois that didnt, that involved a partnership. And what the lawyers for these entities, for these business entities, tried to do is tried to argue that regulation equaled it was confiscation. That any interference with a businesss ability to do what they wanted with their property constituted confiscation. So that was the old limit on the police power. And it was consciously changed. Im right now working on a book on munn v. Illinois and i have also finished a book on the wake court, and i have kind of tracked this change. It was a it didnt happen immediately after munn v. Illinois, but it was a conscious change on the part of a series of lawyers. It wasnt a conspiracy. It wasnt organized, but it was conscious. An effort to change this idea of what limited police power was from confiscation to actually confiscation regulation equals confiscation. The thing i do think youre right about, victoria, is that i hadnt thought about this until you mentioned to me a little earlier is when i read all the arguments about these cases from the slaughterhouse cases until lochner and beyond, i often do see the limited police power along with the words communism or the words eternalism. I think theres something to that if you read the old cases, but i dont think it was a generally manifested everywhere. I think it was probably unique, well, i shouldnt say this, i dont know it, but it seems like if anything, it was unique to the judiciary. Now, with respect to arbitrary and irrational. One of the things is that a court can be arbitrary and irrational too. You could argue that the lochner decision was arbitrary and irrational. It was arbitrary because other kinds of businesses were already given shorter hours and they were upheld by the court. It was irrational because it was unique. It changed the way that we looked at this. In fact, if you were living at the day, you would have predicted that the attorneys challenging lochner would have lost. So i think you have to keep unmind, if were going to talk about arbitrary and irrational, every branch of government has that same potential. Randy. And then well have two minutes closing. I think i would be remiss if i didnt recommend two books for people to read who are interested in the lochner case. And the first book i would recommend is this book called lochner v. New york, economic regulations on trial. And that was written by my copanelist here, paul kens, and he graciously signed it over to me. I appreciate that. The second book i would recommend is a book by David Bernstein of George Mason Law School called rehabilitating lochner, defending individual rights against progressive reform. I would also recommend this book as well. If you read this book, you get a somewhat different take on the facts of what was happening in the bake shop trade than you have heard so far. For one thing, you havent heard anything about the difference between the bake shop companies, the large bakery companies, who actually were not necessarily working their workers longer hours. They could use shift workers, for example, because they had enough workers to work around the clock that way. Baking does involve a certain amount of round the clock tending of ovens. If you have many employees, its easier to work them in shifts to handle that. If you have a very, very small bake shop, a solo bake shop, then its harder to do that. At that point, employees have to stay longer. They have to sleep somewhere nearby so they can get up and tend the ovens. This was a law that was primarily, and at the time, it was actually quite consciously and publicly known to be aimed at a particular subset of the bake shop industry. And that was the bake shops that were in the tenements and they were basically run by the italians and jews. These are italian bake shops and jewish bake shops. They were the ones at whom this particular law was aimed. This wasnt particularly and the group that lobbied in favor of this law was not so much the bake the big baking companies although they didnt object to it. Theres a reason tammany hall didnt object to this, businesses didnt object to this law, because they werent harmed by it. The people harmed by this were a very small set of people, and they were accused of having extremely filthy and dirty and horrible conditions which would have been addressed and some would have been put out of business by the regulations not challenged in the case, but they were the ones at whom this law was aimed, and then getting back to victorias point about labor. Its not labor per se. Its labor unions. Thats what you meant to say, what you actually meant, right . But labor sounds like its everybody, but its not. Its labor unions, and in fact, progressives were part of a very strong unionist movement. Unions didnt represent everybody. They represented themselves, and particularly, they didnt represent africanamericans. They were generally racially exclusionary. They were white male dominated unions, and that is who the progressives strongly supported. And that was who promoted this particular legislation. And so at that time, there was skepticism about unions. There was skepticism by africanamericans about unions because they were so dominated by white and males. And there was skepticism by businesses about unions, and there was skepticism about other people, and the constitutional hook on which this skepticism was grounded was the notion that it wasnt within the police power to favor some subset of the population over others. It a general interest law, a law for the common good, had to be about everybody. And if you just had a law that favored this group, which is like one half of a contractual deal, which is the labor unions, over this group, which is management or capital, thats an improper that by itself is an improper use of the police power because its siding with one over the other, and the police power is for everybodys benefit. Now, i do know that this concept of the police power, this limited concept of the police power, on the one hand, it was very prevalent, then it came under challenge. It came under challenge under the theory that the everybody has benefitted from helping labor out because of conditions and working theres a whole long story we can tell about were all better off because there are labor unions, and that was how they brought this distinction under the police power jurisprudence into kwe question, but the original idea is its not the proper role of the legislature to side with one side of a dispute over another side of a dispute. This would make it an arbitrary law, and this was the other motives that the Lochner Court, that the justice said one had to suspect might have accounted for the law being enacted given the lack of fit with health and safety and givethen fact there was no reason to single the bakers out as opposed to other workers who worked in bad conditions. So given the lack of a police power, a health and safety rationale, we might suspect other motives and they were siding with union labors over capital or management, and that was something that was thought to be by some beyond the police power. Well, with respect to the law itself and the passage of the law, the entity or the group that provided thepyj cloutti unions in 1895 had no power whatsoever. They were small, they were dysfunctional. In new york, they were split into three separate groups. They didnt even have lobbyist in albany. The entities of the group that provided the clout are main stream reformers. These are people, i use the word main stream reformers but theyre an elite. An elite primarily in new york city, and they were primarily concerned with things like cleaning up government, cleaning up tammany hall, cleaning up the slums, ameliorating the conditions of People Living in the slums and the conditions of employment. And what i found after reading their statements was that they were concerned about the two extremes that were kind of posing or being created in American Government. And this fits, again, with your position, victoria. They were worried that extreme what would call the right and extreme on the left would actually cause turmoil that would break down American Government, that the only way to solve the problems of American Government was to find some middle reform, some middlelevel reform. I appreciate very much randy mentioning my book. And along with David Bernsteins book, to which i think is a very good book, but i have two things in the pitch for myself. If you read the two books, you ought to read my review of bernstein. He wrote his book about 20 years after mine, so i shot back at him in a review. The other thing, if you were really interested in that subject, i think i ought to tell you that the book that youll see in the gift store is part of a series that doesnt allow footnotes. I also wrote it as a hardback book, and all the footnotes are in the hardback book if you want to trace my research. Thanks. Okay. Anything else you would like to say, professor . Were going over a little bit. Is this our closing . This is our close. All right. Does paul get another closing . I dont know. Lets close with you because great. Thanks very much again. Theres lots of mythology about the Lochner Court. We didnt get into, for example, the mythology that come about as holmes invocation saying theinv associated this with a condemnation of social darwinism, when in fact spencer was not a social darwinist of any kind, and he did believe in evolution, but he didnt believe in social darwinism, and social statics was a famous book that argued for what is called the law of equal freedom. Everybody should be free to do what they will, provided their freedom does not infringe on the like freedoms, the equal freedoms of other people. Actually, i just brought along my copy of social static here, and so you can see it. Its a very good book. It has a whole chapter on the rights of women and the rights of children. Spencer in 1845 was way ahead of his time when it came to advocated for those sorts of rights. But this idea of the law of equal freedom inherently brings up the subject of reasonable regulation, because if in fact everyone should be free to do what they like so long as their exercise of freedom does not impinge upon the freedoms of other people, a contracts professor, speaking of contracts, the entire body of contract law is a regulation on the making of contracts, says what constitutes a contract, when can they be made, when can they be enforced, its an entire regulation of contracts. It goes back many, many years. Centurie centuries, perhaps, and its something libertarians, for example, do not object to. The issue isnt whether you can regulate liberty. The issue is whether the regulation of liberty is reasonable. Thats not an easy question to answer. Maybe the Lochner Court answered it wrongly, i dont think they did, but maybe they did. I think we would be better off if instead of trying to rely on judges to identify which liberties that we have are fundamental and they get super duper protection, and the liberties judges dont think are fundamental get no protection at all, we could do a lot worse than following the prenew deal approach to the Police Powers, which is simply to say, of course, liberty may be regulated reasonably for the common good, but now you need to come up with a thoeory of what that means an hold legislatures within their proper powers. The declaration of independence says were each endowed with unalienable rights to life, liberty, and the pursuit of happiness, and its to secure these right, to secure these rights that governments are instituted among men, deriving their just powers, not all power, not unlimited power, but their just powers from the consent of the governed, and thats what the lochner case is about. What is the just scope of the power that the government has to regulate our liberties so as to protect the equal liberties of each and every one of us. Thank you. [ applause ] thank you both for a wonderful discussion. I want to say thank you. Thank you. That was great. And its professor nourse. My father worked for 45 years in the San Francisco school department, so naturally, i mispronounced her name, but that was fabulous. Thank you very much. Tonight, on American History tv, our series landmark cases, produced in cooperation with the National Constitution center, we explore the issues people and places involved in some of the most significant Supreme Court cases in our nations history. At 8 00 eastern, we begin with shank v. United states from 1919. Holding that men who distributed leaflets encouraging resistance to the draft can be convicted of a crime under the espionage act of 1917 and that the First Amendment is not absolute. And then at 9 30, from the 1944 case, holding that japanese internment camps do not violate the constitution as they were justified by the Governments National security interest during world war ii. Watch landmark cases tonight on cspan3 and any time on cspan. Org. Today, the House Oversight and Reform Committee debates