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Lochner: Clashing judicial views and the state police powers


August 22, 2022

Justice Rufus Peckham’s opinion in the landmark case of Lochner v. New York (1905), cemented the Supreme Court’s embrace of the liberty of contract doctrine and its tilt toward the laissez-faire economic philosophy of the day.

Justice Peckham’s passion for substantive due process and the Court’s assertion of authority to substitute its own preferences for those of state lawmakers unleashed an enduring debate on the methods of constitutional interpretation and the scope of a state’s police power. His opinion propelled “the general rule of absolute liberty of the individual to contract” into the upper echelon of constitutional doctrine, and it transformed due process of law into a shield from state regulation of economic activity. For Peckham, a law that interfered with the operation of the free market was a violation of substantive due process that courts should not sustain.

That dogma, Justice Felix Frankfurter later observed, reflected a jurisprudence that exalted the generalizations of the 18th Century economist, Adam Smith, as though “they had been imparted to him on Sinai.” Lawyers and judges treated the dogma as though the framers “had enshrined it in the Constitution.” Consequently, he wrote, “any legislative encroachment upon the existing economic order was infected with unconstitutionality.” Judges were expected to provide legal sanction for those economic theories.

The problem of a judicial injection of the economic philosophy of Smith, or his devotee, Herbert Spencer, into the 14th Amendment, Justice Oliver Wendell Holmes wrote in his famous Lochner dissent, was that “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s ‘Social Statics.’” Spencer’s writings advocated a system based on the “survival of the fittest.” His emphasis on Social Darwinism precluded “paternalistic legislation,” a premise that could not withstand the police power of the state, that is the authority of states to pass laws to promote the health, morals, welfare and safety of the citizenry.

Holmes’s dissent struck at the heart of Peckham’s major premise, which he borrowed from Spencer: “The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same.” Holmes added: “That may be a shibboleth for some well-known writers,” but it “is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money … whether he likes it or not.” Finally, “it is settled that laws may regulate life in many ways that interfere with liberty to contract.”

Justice Holmes could not have been more adamant, or correct, in stating: “A constitution is not intended to embody a particular economic theory. It is “irrelevant,” he wrote, whether judges share “the convictions of prejudices” embodied in laws. His approach to judicial review called for deference to the legislature, that is to the “dominant opinion,” as reflected in statutes, “unless it can be said that a rational fair man necessarily would admit,” that the statue “would infringe fundamental principles as they have been understood by the traditions of our people and our law.”

Holmes’s introduction of the “reasonable man test,” applied to the maximum hour statute that limited work in a bakery, led him to say that people, upon evidence presented by health professions, would conclude that the law was considered a “proper measure on the score of health.” In his view, that is all that is required for a court to sustain the law.

Justice Peckham’s assertion of liberty of contract held sway in the Supreme Court for the next 30 years, until it was overturned by New Deal Justices more solicitous of state lawmakers’ efforts to utilize the police power to protect Americans from the ravages of the Great Depression. The Court’s shift from liberty of contract to a recognition of the breadth of state authority to regulate economic activity marked redemption for Justice Holmes, whose dissenting opinions often stood alone. But the life breathed into his positions on judicial review and state regulatory authority by subsequent rulings helped to shape his legacy as that of “the Great Dissenter.”

The fascinating question for students of constitutional law who study the landmark case of Lochner v. New York, and citizens interested in the behavior of judges, is whether Peckham’s approach to the exercise of judicial review is better than Holmes’s approach. For Justice Peckham, judges should draw on their own independent judgment and decide for themselves whether a statute is “desirable.” Justice Holmes, on the other hand, preferred a more a more subjective test, grounded in the principle of judicial self-restraint: Could rational legislators have regarded the statute as a reasonable method of reaching a desired result?

As readers contemplate this question, they may ask themselves whether the Supreme Court’s opinion about the wisdom or evil of a law should be excluded when performing its duty?


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