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 serv