The Lochner Era & "Substantive Due Process" (Part One)

The Lochner Era (Introduction)

City Bakeries

There are several periods in the history of the Supreme Court in which tend to be remembered for an overall approach and lasting impact rather than for a specific case or two. Often they’re simply referred to by the name of the Chief Justice at the time – the Marshall Court of the early 19th century promoted federal power in the early days of the United States, the Warren Court discovered a slew of new rights and protections for the accused in the 1950s and 1960s, and the Roberts Court…

Well, it’s a bit early to make that call.

The Lochner Era (1897 – 1937), however, is named for a case representing a judicial philosophy which dominated the nation’s highest court for nearly forty years. For over a generation, the Court pushed back against the reform efforts of the Progressive Era and gave FDR fits by overturning many of his best efforts to regulate industry during the Great Depression. They laid the foundation for the modern “school choice” movement by uncovering new rights related to parenting and families. In the process, they brought to life an understanding of the Fourteenth Amendment that would end up securing the rights of American citizens to contraception, gay sex, and abortions.

Who saw THAT coming?

The 20th Century Begins

The Spanish-American War was over, the U.S. was quickly becoming a leader in imperialist expansion, and World War I wasn’t yet a twinkle in the Kaiser’s eye. The Second Industrial Revolution was in full swing; massive manufacturing and swelling cities increasingly absorbed available real estate. The American Federation of Labor (AFL) had recently formed under the leadership of Samuel Gompers and was already making headway with practical issues like slightly higher wages and better working conditions. These gains were local and inconsistent, however, and advocates hoped for a little help from higher-ups.

How The Other Half LivesCrowded, dirty, dangerous cities and the evolving power of media to reveal “how the other half lives” brought about what would be remembered as the “Progressive Era.” Reformers began staking out victories, primarily at the municipal level – although by 1920 they could celebrate four new constitutional amendments as well. Both churches and charities were inspired by the idea that individuals, with a little help and “encouragement,” could improve. Individuals make up families, families make up societies… the world could become a better place, starting with the education of one child, the health of one mother, the reform of one man.

At the same time, human fallibility was both substantial and entrenched. While individuals offering soup and a place to sleep were certainly part of the solution, many believed fundamental changes in the system would be necessary for long-lasting, widespread prosperity. It was time to get local, state, and even national government to “promote the general welfare” a bit more aggressively. The most logical place to begin was the epicenter of discord between the handful of men who seemed to own everything and those perpetually consumed in their name – the workplace.  

Lochner v. New York (1905)

It was in the spirit of societal progress that the State of New York passed the “Bakeshop Act,” which prohibited bakers from working more than 10 hours a day or more than 60 hours a week. Like other labor reform, the intent was to protect workers from being exploited by greedy owners – those certain intellectuals referred to as the bourgeoisie. Joseph Lochner was a New York baker who violated this law several times and was fined as a result. Lochner protested that the law was unconstitutional. The Fourteenth Amendment, he argued, protects “freedom of contract,” in principle if not in name. Why should the government interfere with an otherwise legal, private business arrangement between two rational adults?

The case eventually reached the Supreme Court, which sided with Lochner. Justice Rufus W. Peckham, writing for the majority, explained the Court’s reasoning:

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. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State.

In short, bakers are grown-ups just like anyone else, and they can make their own decisions about whether or not to agree to specific hours, wages, or anything else. Expand that to include most of the adult workforce, and you have the basic philosophy of the entire Lochner Era.

Allgeyer v. Louisiana (1897)

Allgeyer v. Louisiana

Lochner wasn’t the first indication the Court was moving this direction. Nearly a decade before, the case of Allgeyer v. Louisiana had reached the Supremes. Louisiana had passed a law intended to protect state businesses by prohibiting out-of-state insurance companies from selling policies in Louisiana. Allgeyer & Co. was a Louisiana company that bought out-of-state insurance anyway and were assessed heavy fines by the State as a result. They argued that the law itself was unconstitutional based on the Fourteenth Amendment’s “due process” guarantee.

The Court acknowledged the State’s obligation to protect its inhabitants but found in favor of Allgeyer & Co. based on a rather Gordian brew of precedent and equivocation. Along the way, however, a concept emerged which would shape the next forty years – “economic liberty.” While the term itself was absent from the Fourteenth Amendment (or any amendment, for that matter), the idea is inherent in the text as a whole – or so the Court determined. Although no one knew it yet, the Lochner Era had begun.

“Procedural” Due Process v. “Substantive” Due Process

This discovery of “economic liberty” in the Fourteenth Amendment meant that states like Louisiana, and later New York, couldn’t limit an individual’s right to make his or her own economic decisions without what the Fifth and Fourteenth Amendments call “due process.” (The Fifth specifically limits federal power; the Fourteenth extends those limits to state and local governments.)

The Framers wished to prevent the sort of tyrannical justice handed out by kings or dictators, and to ensure the U.S. remained a nation of laws rather than of men and their unreliable judgements. While the government can, in some situations, take your life, liberty, or property, doing so requires they first clear numerous hurdles and meet certain standards.  Those hurdles and standards are “due process.”

Due Process FlowchartThe most common understanding of this principle involves “procedural due process.” Anyone accused of a serious crime is guaranteed a fair trial before a jury of their peers. They have a right to an attorney and there are limits as to how the State may go about making the case against them. “Procedural due process” refers to the steps which must be taken and the hurdles which must be cleared before any level of government can take or limit your life, liberty, or stuff – whether the issue is property taxes, prison time, or capital punishment. The concept isn’t limited to criminal law; “due process” is also the steps your public school has to go through before suspending or expelling little Marco for his various violations, and why his guardians or other advocates have the right to challenge the system along the way.

What the Court was calling forth in Lochner, however, wasn’t procedural. The steps had been followed – the legislature passed a law, the bureaucrats distributed the rules, Lochner violated them, enforcers caught him, and the local court heard his case and declared him guilty, all before assessing those fines. What Peckham and the majority were relying on was something else – what would eventually be referred to as “substantive due process.”

Defining Between the Constitutional Lines

“Substantive due process” is a bit harder to define, and it’s been controversial ever since it first emerged. Some see it as jurisprudential accommodation of the natural rights and common law traditions which sparked the nation’s birth to begin with, while others find it more akin to the Voldemort tumor under Professor Quirrell’s turban, manipulating dark justices into sacrificing spare rights on their way to defeating the Constitution-that-Lived once and for all.  

One of the better explanations comes from Professor Erwin Chemerinsky, Dean of UC Berkeley’s Law School:

Substantive due process asks the question of whether the government’s deprivation of a person’s life, liberty or property is justified by a sufficient purpose. Procedural due process, by contrast, asks whether the government has followed proper procedures when it takes away life, liberty, or property. Substantive due process looks to whether there is a sufficient substantive justification, a good enough reason for such a deprivation.

Consider this simple illustration. The Supreme Court has said that under the word liberty in the due process clause, parents have a fundamental right to the custody of their children. Procedural due process means that the government must give notice and a hearing before it can permanently terminate custody. Substantive means the government must show a compelling reason that would demonstrate an adequate justification for terminating custody.

Pierce v. Society of SistersWhat “substantive due process” protects, then, are what we sometimes refer to as “unenumerated rights” – protections implied by the written words of the Constitution and its Amendments, perhaps even inherent in them, but not spelled out as such. In the Lochner Era, this primarily referred to “economic substantive due process” – ideas like “freedom of contract” between companies and workers. It was during this same era, however, that two cases were decided largely on the basis of “substantive due process” which had nothing to do with workers rights or minimum wages. Meyer v. Nebraska (1923) involved the right of parents to determine the specifics of their child’s education and of educators to offer wildly controversial courses like foreign languages. Pierce v. Society of Sisters (1925) allowed parents to choose private schooling, religious or otherwise.

Both Meyer and Pierce were cited repeatedly throughout the 20th century as evidence of the validity of unenumerated rights. They are, in fact, the foundation of most “school choice” arguments – particularly by those most determined to funnel public tax dollars into religious training via “vouchers” and related schemes. Ironically, however, the same controversial judicial philosophy which allowed the Lochner Courts to strike down efforts to regulate big business and which encourages “school choice” advocates to keep fighting the good fight served as the foundation for another collection of unenumerated rights which emerged rather dramatically in the late 20th century.

It called itself the “right to privacy.” You’d recognize it anywhere because it wears a giant “pro-choice” button, uses contraception, and constantly marries someone of a different race but the same sex.

NEXT: The Lochner Era & "Substantive Due Process" (Part Two)

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