Supreme Court decision
By: Rufus W. Peckham; John Marshall Harlan; Oliver Wendell Holmes Jr.
Date: April 17, 1905
Source: Peckham, Rufus W., John Marshall Harlan and Oliver Wendell Holmes Jr. Lochner v. State of New York 198 U.S. 45 (1905). Available online at (accessed November 22, 2002).
About the Authors: Rufus W. Peckham (1838–1909) was appointed to the U.S. Supreme Court in 1896 and served until his death. He previously sat for nearly ten years on the New York Court of Appeals.
John Marshall Harlan (1833–1911), known as "The Great Dissenter," was famous for his dissents in such cases as Plessy v. Ferguson. He served on the U.S. Supreme Court for thirty-four years.
Oliver Wendell Holmes Jr. (1841–1935), a Union Army veteran, served on the Massachusetts Supreme Court for sixteen years. At age sixty-one he was appointed to the Supreme Court, where he served for thirty years.
With the rise of industrialization came the fall of the worker's status. In the late nineteenth century, workers were often abused by their employers, who were generally quite distant from them. Employers were much more concerned with making money than with laborers' health and working conditions. They could afford to take this attitude, because there was a steady stream of immigrants into the country throughout the latter half of the century. Efforts to unionize workers were met with stiff resistance by company owners, who employed strikebreakers and spies to destroy unions. Owners also made workers sign "yellow dog contracts," which stated that if a worker joined a union the employment contract was void and the worker was automatically fired. The government was also on the side of the owners, taking the view that unions were radical and dangerous.
Legislation also harmed workers by creating a legal fiction called "liberty of contract." According to this concept, each person had the liberty to enter into a contract, and any attempt to limit that liberty would violate individual protection guaranteed by the Fourteenth Amendment. The doctrine assumed that owners and workers had equal bargaining power, which of course was fallacious. At the beginning of the twentieth century, some states began to make halting moves to protect workers. These efforts were motivated by a number of concerns, including health considerations. It was believed that an employer would have safer workers and better products if hours were limited. Consequently, a number of states passed laws limiting the work week. Among them was New York, which passed a measure prohibiting bakers from working over ten hours a day, six days a week, or a total of sixty hours per week.
In Lochner v. State of New York, the U.S. Supreme Court struck down the New York law. By prohibitingstates from placing limitations on the work week, the Court had incorporated the concept of "liberty of contract" into the Constitution of the United States. The Lochner decision left open the opportunity for hourly regulation, but it required that states demonstrate a clear connection between the law and benefits to the health of workers. Dissenting justices, led by John Marshall Harlan, pointed out those benefits, while Oliver Wendell Holmes Jr. argued that a state should be allowed to regulate hours, unless such regulation violated the Constitution.
The next case to come before the Supreme Court concerning the regulation of hours in the workplace was a maximum hours law for women, which the court upheld in Muller v. Oregon. Louis Brandeis presented a detailed brief arguing that women were weaker than men and needed protection lest their child-bearing capacities be damaged. Protections for men and women received a generally positive reaction over the next two decades. However, a federal minimum wage law for women was struck down in 1923. It was not until the 1930s that maximum hour and minimum wage legislation would be passed at the federal level for most jobs. In 1941, the Court upheld this legislation in U.S. v. Darby Lumber Company, thus bringing to an end the concept of "liberty of contract." Since Darby, the validity of a maximum work week has remained unchallenged.
Primary Source: Lochner v. State of New York [excerpt]
SYNOPSIS: The following excerpts from Lochner v. State of New York open with Rufus W. Peckham noting how the statute interferes with the right of the employee to contract, and how the state may regulate contracts but only within limits. The Court opinion holds that the state exceeds these limits and so cannot be allowed. John Marshall Harlan argues that baking work is indeed dangerous, that the state has the power to regulate dangerous things, and that baking can therefore be regulated. Oliver Wendell Holmes dissents because he sees the opinion as promoting a specific economic view.
Mr. Justice Peckham … delivered the opinion of the court: .…
The statute necessarily interferes with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution… Under that provision no state can deprive any person of life, liberty, or property without due process of law.The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each state in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers, and with such conditions the 14th Amendment was not designed to interfere.…
The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker.…
It is a question of which of two powers or rights shall prevail, the power of the state to legislate or the right of the individual to liberty of person and freedom of contract.…
We think the limit of the police power has been reached and passed in this case. There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health, or the health of the individuals who are following the trade of a baker… Some occupations are more healthy than others, but we think there are none which might not come under the power of the legislature to supervise and control the hours of working therein, if the mere fact that the occupation is not absolutely and perfectly healthy is to confer that right upon the legislative department of the government. It might be safely affirmed that almost all occupations more or less affect the health.…
Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual, and they are not saved from condemnation by the claim that they are passed in the exercise of the police power and upon the subject of the health of the individual whose rights are interfered with, unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health, or to the health of the employees, if the hours of labor are not curtailed. If this be not clearly the case, the individuals whose rights are thus made the subject of legislative interference are under the protection of the Federal Constitution regarding their liberty of contract as well as of person; and the legislature of the state has no power to limit their right as proposed in this statute.…
It is manifest to us that the limitation of the hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff in error convicted, has no such direct relation to, and no such substantial effect upon, the health of the employee, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employees (all being men, Sui juris), in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employees. Under such circumstances the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.…
Mr. Justice Harlan (with whom Mr. Justice White and Mr. Justice Day concurred) dissenting:
While this court has not attempted to mark the precise boundaries of what is called the police power of the state, the existence of the power has been uniformly recognized, equally by the Federal and State courts.
All the cases agree that this power extends at least to the protection of the lives, the health, and the safety of the public against the injurious exercise by any citizen of his own rights.…
The authorities on the same line are so numerous that further citations are unnecessary.
I take it to be firmly established that what is called the liberty of contract may, within certain limits, be subjected to regulations designed and calculated to promote the general welfare, or to guard the public health, the public morals, or the public safety.…
It is plain that this statute was enacted in order to protect the physical well-being of those who work in bakery and confectionery establishments. It may be that the statute had its origin, in part, in the belief that employers and employees in such establishments were not upon an equal footing, and that the necessities of the latter often compelled them to submit to such exactions as unduly taxed their strength. Be this as it may, the statute must be taken as expressing the belief of the people of New York that, as a general rule, and in the case of the average man, labor in excess of sixty hours during a week in such establishments may endanger the health of those who thus labor. Whether or not this be wise legislation it is not the province of the court to inquire. Under our systems of government the courts are not concerned with the wisdom or policy of legislation. So that, in determining the question of power to interfere with liberty of contract, the court may inquire whether the means devised by the state are germane to an end which may be lawfully accomplished and have a real or substantial relation to the protection of health, as involved in the daily work of the persons, male and female, engaged in bakery and confectionery establishments.…
Let the state alone in the management of its purely domestic affairs, so long as it does not appear beyond all question that it has violated the Federal Constitution. This view necessarily results from the principle that the health and safety of the people of a state are primarily for the state to guard and protect.
I take leave to say that the New York statute, in the particulars here involved, cannot be held to be in conflict with the 14th Amendment, without enlarging the scope of the amendment far beyond its original purpose, and without bringing under the supervision of this court matters which have been supposed to belong exclusively to the legislative departments of the several states when exerting their conceded power to guard the health and safety of their citizens by such regulations as they in their wisdom deem best.…
[According to Atkin v. Kansas] " … We are reminded by counsel that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against merely arbitrary power. That is unquestionably true. But it is equally true—indeed, the public interests imperatively demand—that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably beyond all question in violation of the fundamental law of the Constitution." …
The judgment, in my opinion, should be affirmed. Mr. Justice Holmes dissenting:
… The 14th Amendment does not enact Mr. Herbert Spencer's Social Statistics… Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.
General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word "liberty," in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.
Kens, Paul. "Lochner" v. "New York": Economic Regulation on Trial. Lawrence, Kans.: University Press of Kansas, 1998.
Parker, Alton B. Address of Alton B. Parker. Memorial Exercises of the Late Mr. Justice Peckham, Washington, December 18, 1909. 1910.
Riley, James Andrew. The Influence of Frontier Theories of National Development on Constitutional Jurisprudence: A Comparative Study of Stephen J. Field and Oliver Wendell Holmes. Master's thesis, University of Kentucky, 1997.
United States Supreme Court. Proceedings of the Bar and Officers of the Supreme Court of the United States in Memory of Rufus Wheeler Peckham, December 18, 1909. Washington, D.C., 1910.
"Liberty of Contract." Available online at http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/lib... ; website home page: http://www.law.umkc.edu (accessed January 8, 2003).
AUDIO AND VISUAL MEDIA
Kens, Paul, Jerome H. Supple, and Leonardo Cardenas. The Presidential Seminar. Video recording. Southwest Texas State University. Media Services, 1992.