Transcripts For CSPAN3 Lochner V. New York Supreme Court Case 20170807

Much. Some background on Justice Pryor, he was born in San Francisco, he eventually after stanford came east, farther east. Hes got a ba from Magdalene College at oxford, here in his law degree at harvard. He wen on to justice goldberg. This court he served with great distinction as justice department. He served as chief general at one point. He has taught at Harvard Law School at the Harvard Kennedy school of government, at the college of law in sidney, australia and at the university of rome. In 1980, he was appointed to the United States court of appeals for the First Circuit and he was the chief judge from 1990 to 1994. Then in 1994, president clinton nominate d him as an associate justice of the Supreme Court to succeed justice blackmon. He took his seat on august 3rd, 1994. He has also been a prolific writer. Many books, wonderful art calls. His most recent books was accomplished last september. In a nutshell, in my view and im sure you will agree with me, Justice Pryors 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 and an 8th sense innate sense of descentsy. Its my great honor and privilege to present Justice Pryor to you now. [ applause ] thank you. Thats a long intersection and thats very nice but ill do a short intersection and let you hear what you want to hear which is the case about lochner. Im glad you are all. I do want to say to the society it does a terrifically good jo. Its job is to tell the members, is and people who arent members, judges in our court and everybody 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 i talk to audiences, i love to talk to School Children particularly, 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 Civics teachers, you release histories like the federal courts and essential history and you sponsor these lectures. And leon use to give very long introductions to the introducer too i remember that, but leon was terrific and im glad theyve named this lecture series after him. This is a series called it has four parts, this is part two. The four parts are of the court and the progressive era. Now tonights event is a panel discussion, the panelist are Randy Barnett and paul kens and victoria north, the three of you will discuss. Who are these people, as you probably know, paul kens is a professor of Political Science at texas state university. He frequently writes on subjects involving legal history, constitutional history, the history of law in the american west. Hes written many books including lochner versus new york, economic regulation on trial, Justice Steven field, he was from california and he had a very clofrl career. Shaping liberal from the gold rush to the elizabeth age, and the Supreme Court under chief Justice Morrison r. Wade from 1974 to 1988. Randy barnett is the water house professor of legal theory after the Georgetown University. He teaches law and contracts. Hes the director of the Georgetown Center for the constitution. Hes accomplished many many thing. Most recent book is, are republican constitution also written restoring the lost constitution, the presumption of liberty and the structure of liberty, justice rules of law. Between the two is our moderator, professor victoria norris. Shes the professor of law at the Georgetown University center. Shes the author of, in reckless hands, skinner v. Oklahoma and the new triumph. And a fourth coming book, misreading law and misreading democracy. This panel is perfect to discuss this issue. Please join me in welcoming kens, barnett, and norris. Well, on behalf of the panel thank you very much Justice Pryor for that wonderful introduction and im delighted to be here. Hopefully im one of the last moderators in washington to moderate. If youve seen it earlier, cspan performance youll find it intrancic about the facts of the era, the nature of the case, how tedly roosevelt made the bake shop case famous. But you wont hear much about the key legal concepts that drove the case, different in many respects from our current constructional law. So i hope today, having readen a bit on lochner myself, that we will hear something about these concepts and they include the very notion of right, of sub stannive 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 earlier for ten minutes. Then professor barnett for ten minutes. And then i will attempt to intervene if i get a word in edgewise, to guide the conversation on some of these interesting concepts. Over to professor kens. Thank you victoria. And i want to thank Justice Pryor for his kind intersection and the Historical Society for inviting me to participate. I appreciate the opportunity to take part in this conversation about lochner versus new york. A case to put it mildly has not enjoyed a good reputation. Chicago law professor, david a. Strous best captured the lucky ner legacy with a simple question, who would ever cite in case in a Supreme Court brief, except to identify it with your opponents position. Its safe to say that a majority of lawyers, constructional scholars and judges from all sides of the political and economic spectrum, rank lochner along with dread scot is one of the worse decisions in constructional history. Of course there are only prominent exceptions, i suspect randy will attempt to quince you the lochner case does not deserve this reputation. I am here because i think it does. However, there are many things upon which randy and i do agree. One, is that we both agree and recognize the importance of liberty in our political system and our constitutional tradition. So in the spirit of starting our conversation i would like to focus on the meaning of liberty, not from my own perspective but from observations from what liberty meant for most people in the 19th and early 20th century. Lochner is famous for the use of doctrinal liberty of contract to overturn the law of limiting the work of bakers from ten hours a day to 60 hours a week. Peck come 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 possession comes use of liberty contract to overturn the shorter hours law that caused justice holism to credit the. And it later inspired people like need odor roosevelt to charge that the court has created a reform. The curious thing is that the lochner case 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 mind and dealing at arms length. Those conditions were clearly not present in employeremployee relations in the newly industrial industrialed economy in the 20th century. These were typical of many of wage earning jobs of that era. Working conditions in these bakeries were astroeshs, located in tenant basement, these bakeries were damp, dark, filthy and ceilings as low as 4 feet high. The bakers worked involve 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 union laterally 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 hours 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 everyonety stomach can make no contract. The doctrinal liberty of contract as applied in the lochner case guaranteed little by the workers. Now, if lochner if the doctrinal liberty of contract, 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 a right to businesses and individuals to be free from government regulation. This theory was revolutionary and it was controversy yall, because it read contrary to the traditional american views of the relationship between Property Rights and a duty of the state to regulate in the public interest. It did not originate with lochner but lochner came to symbolize 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 character risk of our constitutional tradition. Since the 1980s many legal historians have attempted to do just that. That have maintained that as expression of a long standing american tradition as limited government reflected in deks sewn yan democracy, the free labor or an add version to class legislation. While its some truth to these observations a closer look at history demonstrates when it come to regulation of business, the traditional legal governments existed more in theory than it did in practice. States routinely running mated the economy, licensing and even condition of employment which was then called the law of nast rin sir gent. Our there may be a tradition of limited government in american theory but the apprehensive lance of such a wide range of regulation demonstrates that another tradition predominated daily life. That tradition was expressed in terms of the states duty to use its authority described as the police power to protect the rights of the people or the rights of the community. And it is rooted in an american ideal that lungs liberty with poplar sovereignty and democracy. And the tradition wouldnt just predominant and daily live but also in constitutional doctrine. In other example in chief justice position in 1937 case, the object of all government is to promote the happiness and prosperity of the community by which it is established by the rights of private property are safely regarded. We must not forget that the community have rights. And the happiness and well being of every citizen depends on the happiness and preservation. In 1877 chief justice ray discussed the same sentiment for majority in illinois, preserving that under the police power, the government regulates the congress of its citizens one way or another in the manner in which he should use his property. Part of this tradition of the rights of the community and popular sovereignty was an understanding that private individuals and businesses can be ever bit as much a threat to liberty as government, especially when those private individuals and businesses wheeld Enormous Economic power. Lochners liberty of contract doctrine lasted until 1937 when it was rejected in west coast hotel versus parish. Then writing for majority, chief justice refused, returning to the old tradition that recognizeds the authorities of the states to use the Police Authorities to validate Property Rights. A wild field discretion to protect the health and states of the public. But he also emphasized that the police power included promoting peace and good order through regulations designed to ensure wholesome conditions of work and freedom from oppression. The chief justice included the expectation for a class of workers with respect to Bargaining Power and deferenceless to denial of a living wage is not only detrimental to the health and well being but cast a direct burden on the court by the community. In miest tags, lochner deserves its reputation because rejected orm or manipulated the common mistake of liberty that was predominant in american constitution provision before 1890. The constitutional tradition on which it was based existed more on theory than in practice and it failed to recognize and appreciate the realities and actual conditions of america and the newly industrialized economy. Thank you. Now to professor barnett. Thank you verkt, thank you paul, thank you Justice Pryor for that intersectiroduction. Thank you all for coming today. I agree with paul we do agree quite a bit, there is a lot we do disagree about. How do we establish whose right and whose wrong. Let me just disagree with one thing of many thing paul just said. He said that lochner represented it was part of an era in which there was supposely a believe and a right to be free from government regulation and thats what makes lochner so evil because it stems from a proposition there is a right to be free from government regulation. And i can prove that this is false, this claim, that there is a belief and right to be free of government regulation. In my evidence for this i would rely on a case to support this proposition. The case id rely on is the case of lochner v. New york, the case were discussing today. Why do i say that . Because the statue that was at issue at lochner v. New york was called the bake shop act. And the bake shop act was an intensive regulation of the health and safety and regulation of bake shops. It was passed to address the conditions that professor kens rightfully pointed out. Not all bake shops were like this but there were bake shops that were like this and this was an intensive regulation. The regulation included regulating the heights of creoles, the come petition of floors, how fast often it had to be whitewashed, regulating the position of oh venues where people could sleep regard to those ovens. Regulating the animals. Regulating venuelation. It was an intensive body of regulations. If you want an easy place to identify the text of the statute, you want to find the text in the statute without having to search too hard, all you have to do is read the majority opinion in lochner because they cite and reproduce the text of the bake shop act. The reason i can reestablish it was not a case that anyone claimed it was a right to be free from government regulation is no one questioned the constitutionality of the bake shop act. Nobody. Including the majority of the Supreme Court in the lochner case, including justice rufus possession come who cited the opinion, the entire act as an example of a legitimate health and safety law. It seems as though, since that was an intensive regulation, set of government regulationings, addressing a Health Concern is simply false. If anyone thought there should be no regulation of the economy or no Economic Activity it certainly was not the Supreme Court in the lochner case. And issue in the lochner case was a single provision in the bake shop act which is located in the negotiations provision in the new york state statutes and that was a provision that mandated or restricted the working hours by people who worked in the bake shot, not but the owners they could work as long as they like, but the employees were limited to 60 hours and could not work more than that. There was one provision that was underchallenged in the case and that was the only provision that was invalidated, all the rest were considered completely inconstitutional. The property the court had with that provision is identifying it as a health and safety regulation because they could not see a close fit in that proiks, which is a criminal prohibition as a legitimate health and safety law. In reaching that conclusion the court relied on which cited general statistics about the health and safety of the baking industry and the court cited that or based its opinion as a part of that, the studies cited in the briefs challenging the statute. So given that, how did lochner assume the case. I do agree with professor kens that lochner is considered to be a terrible case and ranked sometimes with drake scott. How did that come to pass . This is a question of constitutional narrative. One of things that i teach my student when i teach constitutional law is that the practice of constitutional law isnt done the way for example i also teach contract law, with contract law you learn the body of doctrine, doctrine consideration, statute of fraud and learn about doctrine and apply to that facts. Constitutional law can be practiced like that but its not. The casings are the cases that everybody agrees or rightly decided that need to be upheld, other cases are ones that are considered to be evil and wrong. If the argument youre making or you can convince the court your opponent is making is an and you have to know which case is which. And lochner is clearly is what we call the anticannon. When did it get there. One would think its been there for a long time. Was it there when it was decided. Turns out it wouldnt. When it was decided it seemed it was a pretty money date case. It did make the newspaper thats true. The New York Times did, the Washington Post post, the Los Angeles Times did that edtiorialized in terms of this case. It was not considered to be 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, roosevelt served as president and then he was out of office for a term. And then he wanted he sought the domination of the Republican Party depend in 1912. As he ran for office, one of the planks on which he ran was damaging the interference with Supreme Court with the progressive error of legislation. He gave an address covered on the New York Times in which he land basted the Supreme Court and land pasts what he called the bake shop case. Thats what it was called the bake shop case. Cases used to be called by their original name like the lottery case. But we dont do that we now have to memorize the names. But it was a bake shop case and he instoled the virtues of of the New York Times that he was raising holmes in his approach for the lochner case. Thats what made the case famous. He moved into a third party, it was called the progressive party, he helped form a new third party called the progressive party, ran for that partys nomination, got it, and ran under the party called the progressive party. He split the republican vote and allowed progressive wilson to become president. And that was lochners first appearance on the stage. You would think at that point it had been famous, was not going to be a famous thing from now on but it went into on securitity after that. Wouldnt known or talked about. There was the big debate about the role of the courts and Justice Holmes and opinion of the lochner case made him one of the champions of progressives, arguing the courts has no business interfering with the policy making being done at the state and city level. Holmes was the champion of the lochner and other cases as well. And so matters stood with lochner being unknown until let me take a brief interlude, because once the Supreme Court was almost entirely appointed by progressive president s, and we have a progressive president in need odor roosevelt, wood row wilson and hoover and then roosevelt. So the court became completely progressive. By the time it was completely progressive and adhere to this doctrinal restraint seemingly, something happened that caused justices to rethink their views. The republicans took control of congress in 1946. Once republicans took control of congress in 1946 the idea of judicial restraint started not to seem like a wonderful idea anymore. The idea that no matter what congress would do wed defer to it. Some of the justices started to have second thoughts about this. A very very interest article was written about this, and the story was written and divides the court up into two contending groups. The first group he calls the lions of selfrestraint. And they are people like felix frankfurt and others. The other groups he call judicial activist. Its the first time we know of traditional activism was used. Th in the art call he said what the people decided they were deciding to reconsider this restraint idea. The problem before wouldnt that the judges were acting the problem is they said it was inevitably the judges would be acting politically. The question is what would they be acting politically for. They we were acting politically for the wrong thing. He did social one side of the court with the jail law school, didnt associate the other side with the Harvard Law School though, he might have. Lochner doesnt play a role here yet, we have a split on the Supreme Court all between good new deal judges. We have the new deal conservator restrain jays, we have the postnew deal more in court activists judges and that brings us to the 1960s in the case of griswold versus connecticut. That case is decided, and what does it do. It protects an unenumerated rights in this case to use, possess and sell contraceptives. And the question is what gave the court the power to envalidate a connecticut law on to possess and use contraceptives. The answer that douglas gave, a good jail man, the answer to the Justice Douglas gave was that it was the right of privacy and he relied on lochner era cases in making that case. These were cases that were decided on freedom of crack grounds, by the lochner, they themselves relied on the lochner case. At some point the challenge was raised to him, doesnt that give rise to this economic liberty case like this lochner thing. At first actually during oral argument the court wasnt quite sure was the lochner was, they thought it had to do with the size of bread, they were not quite sure was the case was. It was a case like that but it wasnt lochner. So they decided in the griswold case. Again lochner doesnt play a huge role. Its mentioned in court but douglas said were not going to take the road. Where it really comes to place is inger rald gunthers case box. Gunther and dowry which was accomplished in 1970, puts lochner in the case book and pairs it with griswold, as a way of questioning whether what court is up to is really any different than what it use to do. And then 1975 comes the new edition of gunther case book. And its decided what happened between 1970 and 1975 is decided. So now Jerry Gunther expands the lochner section into a whole chapter of book. Then it standards to lochner, griswold and then to row. He call there is the lochner area. Before 1970 i think there was one reference, 1969, one person referring to the lochner era as aner ra. In 1975 he has this big thing, i think the chapter was sub substantiative due process, rise, decline and revival. Rise, lochner decline then rerival with griswold and row. I happened to be a law student in 1975, so i used the First Edition of gunther. I used the 1975, ninth edition of gunther. I read this chapter as a law school and i read the whole thing and i thought wow, this is interesting. I love the lochner case, thats great. Maybe that means that row and griswold theyre okay too. Well, actually i think the sociology was backwards and that is because a lot of people liked row. A lot of people liked griswold. When you put lochner up against it and you say well, look what theyre doing is the same thing as lochner, i think this cause people to rethink lochner. Even though lochner was still objectionable it wouldnt for the same reasons. When larry accomplishing the last edition of his treaties in 1978 he has a whole chapter on lochner. He says the problem with lochner was not that they got the role of judges wrong, they were protecting the wrong right, freedom of contract was not a right that they should be protecting. Okay, so now lochner is, it use to be very very bad and now its only very bad. Use to be the wrong right and the wrong role and now its the right role but the wrong rightism and heres the last par of my story, i will close with one little anecdote that i have personal knowledge of. One of my earliest art calls on constitutional law was telling the story on how it was thanks to gunther and his case book that lochner was getting a better reputation. And so, i credited gunther with having elevated the stature of lochner. And i got a handwritten note, which unfortunately i cannot find so youll have to take my word for it, but i got a handwritten note from Jerry Gunther expressing his shock and dismay that his use, that his case book could possibly have the effect that i described. Because his whole purposive putting thesing to was to undermined row and griswold. The opposite of what he wanted to do was elevate lochner. So lochner has gone from being very very bad in the minds of some to only being very bad, in the future rounds were going to discuss whether theres a justified treatment of lochner. Thank you randy. I want to press you both on a little bit on oh. [ applause ] that was an incredible course in constitution of law, i done get to take my colleagues courses. I have spend a little time mai 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 look at the concept of right that it look so much different. We didnt have the idea of sub tantive due process i think youd both agree with that, and when i looked at the average manwritten case i found dozens and dozens of statements like this that challenge the temporary equation of lochner with the notion of right that might be in more contemporary cases as suggested by gunther. So you were comparing in essence apples and oranges. Heres one quote which will seem strange to the audience and ill let them both respond for five or tine minutes. This is a case called man bell versus springs, no ones ever heard of. It involves adam. But it says police power is an exercise that the sovereign right of the government, notes right of the government to protect the lives, health, morales, comfort, and general welfare of the people and is pare mount to any right under contract to individuals. Did we have a strong contract right at the time of 19 o5, is it correct to compare that strong right with strong rights that we have seen postnew deal . Well let me answer that first. In part of my answer will be a little bit of response to randy because it falls right into that area. Randys very convincing about lochner being un important in its time and also being a favorable case. But his zpripgs glosses over a few things and these are the rights. The bake shop is the reason that only one provision of bake shop that was decided by the court was because that was the only par of the bake shop act that was before the court. Lochner was convicted of a crime for violated the longer hours because of shorter hours provision of the bake shop act. The part randy glosses over the par i think has to do with right. The police power is not defined anywhere in the constitution. In fact the police power isnt defined anywhere. If you look at the old constitutional treat tuss it would say the police power is all power designed for the state its not defined. The police power goes way beyond health and safety and as victorias pounding out it goes to protecting as you said the right of the government but id say its the duty of government to protect the welfare. The second thing that randy glosses over in his description is the burden of proof or what he would call a presumption. And that pruj, up to lochner, and kind of including lochner, because one judge who decided was strongly in favor of legislation and strongly in favor of this aid. The way justice hard lon, the constitution statute cannot be overruled until its beyond all question in violation of the constitution. And for that reason, he would not have overruled the shorter hours provision at the bake shop law. So i think these concepts fit right into your story. And i think that if we look backwards, i think one of the difference between randy and i is i always look backwards and hes looking forward about this case, not always but in this instance, if you look backwards that notion of police power was stronger i think in the period of lochner and the case versus parish. This is an area in which we agree quite a bit. And that one of the reasons why lochner has been misinterpreted and paul i think does not do this, and he didnt do it now, is by reading back into lochner, the way we do substantive due process today, the way its done today is you basically have essentially an r irrebuttable constitutionality which only does not apply if you have what the court identifies as a fundamental right. And so if you do have a fulltime right of which there are only a limited number then it gets what you might call super duper protection. Strict scrutiny or something Something Like that it and have few statutes are supposed to be able to provide this. So you have no protection of liberty or you have great protection of liberal, particular number of liberal so you have the keep the number of protection to be relatively small, if you dont its going to overrun government, and that we know cant also be right. You look back at this case and say, what they did is they just erect, they elevated freedom of crack to the establishment of fundamental rights like wed do to privacy today and theyd be wrong to do so. But thats not what they did, thats not what paul said they did. This is a Police Powers case. The premium was not placed on right, not much time was spend on right and justifying the right. 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 and broader scopes of the police power and thats what the debate was about. Thats what the debut was about starting in 1968 and for the first time the federal government has jurisdiction, the federal government and congressman of the court that theyve never had before. And the unenumerated power by the police power is an unenumerated power. Its not managed in the constitution, if you dont like unenumerated stuff there should be no police power. The question is what is the proper scope of this unenumerated power. I think we can rule out one of the answers to that question, that is the police power is unlimited. Its anything its everything, its whatever a majority in the legislature decides to do within the proper scope of the police power. Now, we really cannot adjudicate now, at least at this moment exactly what the proper contours of what the police power is, other than im freely admitting it was consisted, but i can identify the standards that was beau used in lochner and other cases at the time and prior. I will identify the standard and explain why its a standard. The standard is that the police power can not be used to enact an i rationale or arbitrary restrk on liberal. An i rationale standard is a standard where your liberty is being restricted supposedly to pursue some end, but the if i between the purpose and the ends, the ends and the means is so lose that we suspect perhaps thats not the reason why the law is being passed. We can subpoena improper motivates may be in play that do not relate to the popular good. Taking from a to give to b was outside the police power of the state going all the way back to calleder versus bull. The other standard is arbitrariness. And that was treating some people differently than others without a good reason. And that would prohibit a certain kind of zprimttory treatment. The question in facing lochner without getting into what the answer was, it was skeefbl that lochner decided on its fact, i dont conceive that but one still could conceive that and they this was a rationale law because the fit between hours that bakers worked just wouldnt there. This particularly applied to other occupations where people worked long hours and was also hazardous. It was not enough fit 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 than others. If you look and read the opinion in the lochner case the reason is about rationale and contrariness. Why would that be the outer boundaries of the police power . It may not be the only boundary but why would that be the only boundary of the police power. The police power we supposedly live in the country where there is the consent of the government and yet government exist that can claim the consent of the government because theres never any express consent to the government maybe by few not by everybody. So the question is can you can presumed, can the individual citizen who has rights to preexisting rights we can talk about shortly be presumed to have given to the legislature, to a major in the legislature which is just a badillo of individual citizens, the power to restrict their liberties arbitrarily and irrationally. The argue is that cannot be presumed. Maybe should be could consent to them if you ask them to. But they certainly cant be presumed, so no one can be presumed to consent to the legislation, the power to restrict their libertyings arbitrarily or irrationally. The issue on the fact of lochner is was this such a law. And thats what the court decided. That, as i understand it is not the position that liberty of racket reign which has been the traditional story told. I think historians agree the police power has a prominent effect as being suggested. One of thing i wanted to ask you both is whether theres a strong way between a strong liberty of contract view and a view that in fact there was no regulation of businesses et cetera. Bah they did regulate business to the police power. And so maybe theres a smaller explanations and there might be that there is labor exceptionalism. Which is to say that labor was associated with soshllism, terrorism and violence. And it was this labor exceptionallism that was crucial. And yes, it could make or ideas cases different as randys find ex my case showed us. The real key is it was something smaller. We did get economic regulation in the progressive era but rather that labor was singled out in this decision for disfavorable treatment afz in so many other ways in an era where we put laborers in jail because of their use of speech. So . Well, i like the idea, i appreciate this notion of exceptionalism but i see a couple problems with it. The first problem is if there was labor on exceptionalism it didnt show in this new york legislature. This was a legislature that was very business oriented. And yet the statue that it was enacted in the shorter hours and voted in the two houses of the legislature 1200. Not only did it vote 1200 but it did it twice because the original bill had it in the provision read, no person could work in a bakery for more than 10 hours. The governors lawyer was worried that that was unconstitutional and changed it to, no employee. 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 thing, one is about the police power. There was another 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. What it said is that the police power was not it was extensive but not unlimited. What the lymphs that the state could not deprive a corporation of its property, or deprive the corporation of the essential objects of its grant. That changed after the enactment, a real sudden l change of an enactment of the 14th amendment. It came with the cases that involved the contract claus and the ones that didnt, that involved the partnership. What the lawyers for these entities tried to do is they tried to argue that regulation equalled it was confiscation, that any interference with a businesss ability to do what they wanted with their property constituted conification. So that was the old lim on the police power and it was changed. Im working on a book and i also finished a tracked this change. It didnt happen immediately after munn versus 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 the limit of the police power was from confiscation to regulation equals confiscation. The other thing about the thing i do think youre right about, victoria, is that i hadnt thought about this until you mentioned it to me once a little bit earlier, is that when i read all of 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. So i think theres something to that if you read the old cases, but i dont think it was generally manifested everywhere. I think it was probably unique with 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. And 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 business. 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 in mind, if were going to talk about arbitrary and irrational, every branch of government has that same potential. Randy. I think i would be remiss if i didnt recommend two books for people to read who are interested in the lochner case. The first i would recommend is lochner v. New york, written by paul kens, my copanelist here and graciously signed it over to me as we did our cspan program. I appreciate that. A second book i would recommend is George Mason University law school professor, i would recommend this as well. Youre going to get a somewhat different take on the facts of what was happening in the bakeshop trade than youve heard so far. You havent heard anything about the difference between the bakeshop companies, the large Bakery Companies who actually were not necessarily working their workers longer hours. They could lose shift workers for example because they had enough workers to work around the clock that way. Baking does involve a certain amount of roundtheclock tending of the ovens. And if you have many, many employees, its easier to work them in shifts to handle that. If you have a very, very small bakeshop, a solo bakeshop, then its harder to do that. And at that point employees have to stay longer. They have to sleep somewhere nearby so they can get up and tend the ovens. And this was a law that was primarily and at the time it was actually quite consciously and quite publicly known to be aimed at a particular subset of the bakeshop industry. And that was the bakeshops that were in the tenements and were basically run by the italians and the jews. These are the italian bakeshops and jewish bakeshops. These are the ones at whom this particular law was aimed. So this wasnt a particularly and the group that lobbied in favor of this law was not so much the bakeshop the big baking companies, although they also didnt object to it. Theres a reason why tanmy didnt object to this law, theres a reason why businesses didnt object to this law, because they werent harmed by this law. The people that were harmed by this law were 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 of them would have been put out of business by the regulations that were 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. Thats what you actually meant, right . Yes. But labor sounds like its everybody, but its not, its labor unions. In fact, the progressives were part of a very strong unionist movement. Unions didnt represent everybody. They represented themselves. In particular they didnt represent africanamericans. They were generally racially exclusionary. They did not represent women. 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 the skepticism was grounded was the notion that it wasnt within the police power to favor some subset of the population over others. Everything 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 onehalf 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 Powers for everybodys benefit. I know this concept of the police power, this limited concept of the police power on the one hand it was very prevalent and then it came under challenge. And it came under challenge under the theory that everybody is 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 question. But the original idea here was is that its not the proper role of the legislature to side with one side of a dispute over another side of a dispute. That would make this an arbitrary law. And this was the other modus that the Lochner Court said one might have accounted given the lack of fit with health and safety and given the fact there was no particular reason to single bakers out as opposed to other workers who worked in bad conditions, so given the lack of police power, health and safety rationale, we might suspect other motives. And the other motives he had in mind was siding with labor unions 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 the clout, labor 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 a lobbyist in albany. A group provided clout is what i call mainstream reformers. These were people i use the word mainstream reformers, but theyre actually an elite. Theyre elite and primarily in new york city and primarily concerned with things like cleaning up government, cleaning up tamany hall, cleaning up the slums, e the conditions of the People Living in the slums and conditions of employment, and what i found after reading their statements was that they werent 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 on what would be called 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 middle reform. I appreciate very much randy mentioning my book. And along with david bernsteins book which i think is a very good book, but i have two things and pitch for myself, i think if youre going to read those two books, you ought to read my review of bernstein. Its a little unfair. He wrote his book like 20 years after mine or Something Like that. So i had a 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 not its part of a series that doesnt allow footnotes. But i also wrote that book as a hard back book and all the footnotes are in the hard back book if you want to trace my research. Okay. Thanks a lot. Is there anything else youd like to say, professor barnett . Is this our closing . This is our closing. All right. Does paul get another closing or is that his closing . Lets close with you because professor kens began. Okay, great. Well, thanks very much again. Theres lots of mythology about the Lochner Court. We didnt get into for example the mythology that comes about as a result of Justice Holmes invocation of Herbert Hoover social status saying the law does not enact mr. Spencer and many have 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 very famous book that argued for what was called the law of equal freedom, that is everybody should be free to do what they will provided that their freedom does not infringe upon the like freedoms, equal freedoms of other people. I just brought along my copy of social statics here, so you can see it. Its a very good book. Has a whole choopter on the rights of women. S but this idea of the law of equal freedom brings up reasonable regulation. If in fact everyone should be free to do what they like so long as the exercise of their freedom doesnt impend on the freedom of other people calls for the liberty in some shape of form. The entire body of contract law is a regulation on the make of contracts, says what constitutes a contract, when can they be made and enforced. It goes back many many years. Secenturies perhaps. Its something that the libertariania ias dont object. The issue is whether regulation is reasonable. And maybe the lock ner court answered ill wrongly. I dont think they did. But maybe they did. But i dont think the question they were asking was the wrong question to ask and i think we would be better off instead of trying to rely on judges to identify which liberties we have are fundamental and they get protection and the liberties that judges dont think are fundamental dont get protection at all, we could do a lot worse than following the prenew approach to the Police Powers saying of course liberty may be regulated reasonably for the common good but now you need to come up with a theory of what that means and then you need to hold ledge lgislators within th proper powers. Life, liberty, the pursuit of happine happiness. And it is to secure these rights that governments are instituted among men deriving their just power, not all power, Unlimited Power but their just powers from the consent of the governed. Thats what the lockner case is about. What is the just scope of the pow thaer the government has to regulate our liberty so as to protect the equal liberties of each and every one of us. Thank you. Thank you both for a wonderful discussion. [ applause ] i want to say thank you. Thank you. That was great. And its professor nurse. My father worked in an aud to auditorium for 40 years in the San Francisco area so naturally i mispronounced our name. But that was very good. Thank you very much. [ applause ] American History tv is in primetime all week with our original series landmark cases. Tonight the Supreme Court decision that limited the president s power to seize private property. Youngstown sheet and tube Company Versus sawyer. The result of president truman taking over saw mills to avert a strike during the korean war. American history tv primetime begin to night at 8 00 p. M. Eastern. Cspan, where history unfolds daily. In 1979 cspan was created as a Public Service by americas Cable Television companies and is brought to you today by your capable or satellite provider. American history tv continues now with remarks by Stephen Briar on the influence of morning relations on American National security and civil liberties. He talked about cases featured in his book the court and the world, american law and the new global realities. The discussion was hosted by the Supreme Court Historical Society. Runs about an hour. Thank you. Very nice introduction. This is a formidable group. Im talking a little bit about history but you actually know about history. I was told by a historian, he said anyone can make history but it takes a real genius to write it