The Lochner Era & "Substantive Due Process" (Part Two)
NOTE: If you haven't already done so, you should probably start with Part One of this post. I mean, I can't force you or anything, but...
“Economic Substantive Due Process” in the Lochner Era
“School choice” wouldn’t emerge onto the national scene until after Brown v. Board of Education (1954) and the various forays into moral corruption and social decay wouldn’t become staples of the nation’s highest court until a decade after that. The rest of the Lochner Era was largely about how freedom meant letting corporations do whatever they wanted to workers because those being exploited had just as much theoretical control over the outcome as their gilded overlords did. (They didn’t put it in those exact terms.) Between 1897 – 1937, the Supreme Court struck down nearly 200 different statues, most as violations of “freedom of contract” or other violation of “economic substantive due process.”
The Court acknowledged in principle that state and even sometimes federal government had some limited authority to regulate workplaces in order to promote safety and the general welfare, but only in cases involving explicit physical danger. Efforts to regulate mining, for example, might have a chance; restricting the hours during which one could safely bake bread, on the other hand… not so much.
Any such regulations should avoid restricting “market choices”; they couldn’t interfere with the ability of men to sign up for whatever working conditions they choose at whatever wages are available. The Lochner Era had little use for Congress’s claims to expanding authority under the Commerce Clause, making it one of those rare periods in U.S. history during which federal power didn’t simply expand at will. The Court was particularly unsympathetic towards labor unions during this period, regularly striking down laws facilitating union activities or offering workers more leverage in negotiations.
Other Major Cases of the Lochner Era
Here are a few of the more frequently cited cases of the period, although there were dozens of others which could just as readily demonstrate the ideology of the era:
Adair v. United States (1908) – Congress passed legislation in 1898 prohibiting “yellow dog contracts” in which workers agreed to forego union membership in order to obtain employment. When an interstate railroad company nevertheless fired an employee for joining a labor union, they argued that the Fifth Amendment protected them from being deprived of their liberty or property without due process (no doubt meaning the “substantive” variety). The Supreme Court agreed. While Congress had the right to regulate interstate commerce, that didn’t give them the right to interfere in the “liberty of contract” between employers and employees.
Hammer v. Dagenhart (1918) – In 1916, Congress passed the Keating-Owen Bill, which attempted to standardize protections for children under the age of 16 (or 14 in some industries) working in factories or other labor-intensive industries. The Court declared Keating-Owen unconstitutional, insisting that Congress’s power to regulate interstate commerce was intended to facilitate trade among the States, not stretched to regulate labor and production itself. Besides, the Court pointed out, the States had already addressed the issue in their own ways, as the Tenth Amendment allowed.
Adkins v. Children's Hospital (1923) – The District of Columbia passed a minimum wage law for women and minors, complete with provisions for investigation and enforcement. The Children’s Hospital of D.C. protested that this was a violation of their “freedom of contract” as clearly established in Lochner v. New York (1905). The Supreme Court agreed and overturned the minimum wage legislation based on the same principles articulated in Lochner, adding that the law was “arbitrary” in that it imposed a uniform minimum wage regardless of women’s individual skills, occupations, wants, or needs. Besides, the Court added, with the passage of the 19th Amendment only a few years before, the idea that women required special protection was quickly becoming antiquated.
Carter v. Carter Coal Company (1936) – The Bituminous Coal Conservation Act of 1935 was intended to establish national standards for the coal industry. It was not technically mandatory, but companies who agreed to pay the designated wages, limit working hours to those spelled out in the legislation, and follow the suggested pricing guidelines, received a substantial tax refund. The Court determined that Congress had (once again) overstepped its authority under the Commerce Clause. Employee wages and hours were part of production, not distribution or sales, and any relationship between the two was indirect at best. If individual states wished to regulate their industries in this way, that was fine – but nothing in the Constitution gave the federal government the right to step in on this level.
West Coast Hotel Co. v. Parrish (1937)
On its surface, West Coast Hotel was a fairly straightforward case. The State of Washington set a minimum wage for women and minors working in most professions. Elsie Parrish, who worked at a local hotel, sued for the difference between what she actually made and the legal minimum. Lower courts, following the precent set in Adkins v. Children's Hospital (1923), found in favor of the hotel – “freedom of contract” and “substantive due process” and all the usual staples of what was by this time forty years of “Lochner Era” jurisprudence.
When the case reached the Supreme Court, however, they found for Parrish and the State of Washington. The minimum wage was fine. Adkins was officially overturned. Just like that, the Lochner Era was over.
West Coast Hotel marked a dramatic shift in the Court’s approach towards legislation regulating industry and protecting workers. This was not the result of a massive change of heart or mind by nine robed individuals, but a philosophical reversal on the part of a single Supreme – Justice Owen J. Roberts. Many of the infamous Lochner cases were decided by split votes, with 5 – 4 being the most common. West Coast Hotel was decided 5 – 4 as well, but 4 of the new 5 were the same core group who’d been overruled in similar cases for decades prior.
Why the change? Popular wisdom suggests it was a reaction to President Franklin D. Roosevelt’s infamous “court packing plan” via the Judicial Procedures Reform Bill of 1937. Tired of having so many of his New Deal efforts stymied or outright overturned by the Court, FDR proposed adding six additional justices over a period of several years – claiming he simply wanted to help the Court manage its extensive workload.
There was nothing unconstitutional about adding Justices to the Court, but even his supporters saw it as a rather obvious ploy to gain some leverage over a troublesome Supreme Court. Although the bill failed, perhaps Roberts sensed a change in the popular winds and decided it was time for the Court to pick its battles more carefully. Someone coined the phrase “the switch in time that saved nine” in reference to Roberts’ change of heart and the term stuck.
The Inglorious Demise of Economic Due Process
The Majority Opinion in West Coast Hotel, penned by Chief Justice Charles Evans Hughes, accepted the State’s argument that women and minors were particularly vulnerable to exploitation by employers and that what was bad for women (many of them mothers) usually ended up being bad for society as well. This was the opposite of the “women don’t need no stinkin’ protection” approach of Adkins, but if you’re going to overturn a previous ruling, you might as well go all the way.
In an instant, the “economic substantive due process” went from being head cheerleader to the weird girl no one would invite to parties. It fell out of favor, seemingly inexplicably, and has been generally villified ever since. Lochner v. New York (1905) is now regularly lumped together on “worst ever” lists with cases like Scott v. Sandford (1857), Plessy v. Ferguson (1896), and Citizens United v. FEC (2010).
The idea that there are unenumerated rights just as essential to personal liberty as those spelled out explicitly, however, did not go away. Some would argue it had been there all along – hence the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Eventually “substantive due process” would re-emerge. It periodically popped up in the slew of “rights of the accused” cases for which the Warren Court is best-remembered, then – as previously mentioned – became a staple of both sexual freedom jurisprudence and a re-imagining of “religious liberty” far more aggressive than a generation ago. Because it relies on inference and historical interpretations, it’s both malleable and unpredictable. Perhaps the biggest error of the Lochner Era courts wasn’t their use of “unenumerated rights” in making their decisions, but their elevation of those inferred rights to a status which trumped all other considerations – economic, social, or legal.
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