02/05/2015 01:46 pm ET Updated Apr 07, 2015

Stop Worrying and Learn to Love Lochner: Setting the Record Straight on a Great Victory for Economic Liberty


An abomination. A lawless usurpation. One of the worst decisions of all time. That sums up the conventional wisdom on the Supreme Court's decision in Lochner v. New York (1905). So it is no surprise that Senator Rand Paul created quite a stir last week when he praised Lochner at a conference hosted by Heritage Action. To hear Ian Millhiser of Think Progress tell it, Senator Paul's defense of Lochner was indefensible -- the Lochner Court "fabricated" a right with no basis in the Constitution and mercilessly struck down a humane law intended to shield overworked bakers from "exploitation."

Simply put, the case against Lochner is half-baked. In striking down a nasty bit of economic protectionism, the Lochner Court vindicated rights that are constitutionally protected and of vital importance to ordinary Americans. Lochner presents a stellar example of judicial engagement that judges considering economic liberty cases today could learn a great deal from.

What were the facts? As Professor David Bernstein has documented in his invaluable history, Rehabilitating Lochner, an 1895 law called the Bakeshop Act prohibited New Yorkers from working in a bakery more than ten hours in one day or 60 hours per week, and made it a criminal offense to employ a worker for more than 60 hours a week. Although presented as a public safety measure, the law was in fact the product of a zealous lobbying effort on the part of nativist unionized bakers at factory bakeries. These bakers sought to protect themselves against competition from Eastern European immigrants who lacked the capital for expensive equipment and made their bread by hand, which required them to work longer hours. (The union's newspaper referred to them as "the green hand from foreign shores.") Joseph Lochner was convicted under the Bakeshop Act for permitting an employee to work longer than 60 hours in one week. He challenged the maximum-hours restriction, arguing that the law violated his rights and those of his workers to liberty of contract -- a liberty that the Court had held to be protected by the Fourteenth Amendment's Due Process Clause.

In evaluating the hours law, the Lochner Court displayed all of the hallmarks of judicial engagement. It made a genuine effort to determine whether the law plausibly furthered a constitutionally legitimate end. As Justice Peckham explained:

The mere assertion that the subject relates though, but in a remote degree, to the public health does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate.

Scrutinizing the record, the court found that the state had offered no proof that allowing bakers to work beyond the allotted hours posed a material danger to the bakers' or the public's health or that bakers were uniquely incapable of making decisions for themselves about what was necessary to support themselves or their families. Accordingly, it struck down the law.

In a famous dissent, Justice Oliver Wendell Holmes charged that the majority had written laissez-faire economic principles into the Constitution. But the Lochner Court did not invent liberty of contract. The right to buy and sell labor on mutually agreed-upon terms is protected by the Fourteenth Amendment. Slavery was also an economic institution, and the Fourteenth Amendment was designed to stamp out the vestiges of slavery by, among other things, ensuring that people of all races were secure in their rights to sell their own labor and make and enforce lawful contracts. Contra Holmes, the Constitution does express a principled commitment to protecting economic liberty.

Today, although the courts give lip service to economic liberty, they all too often fail to protect it. Under the so-called "rational basis test," the default standard of review in constitutional cases, the Supreme Court and lower courts do the opposite of what the Lochner Court did -- they make no effort to determine whether the government is in fact pursuing legitimate ends through means that plausibly further them, and indeed, sometimes even assist the government in rationalizing naked economic protectionism. The result? Regulations purportedly designed to protect the public but serving only to protect the politically powerful from competition are squelching countless American dreams.

Senator Paul's challenge to the conventional wisdom on Lochner is neither unmoored from the Constitution nor hostile to the rights of workers. Lochner is deeply rooted in an American legal tradition that protects individual rights from overbearing majorities and entrenched special interests, and the decision showcases what courts can and must do to keep the political branches in check. The judicial engagement showcased by the Lochner Court is crucial to ensuring that hard-working Americans everywhere enjoy their full measure of constitutionally protected freedom. Those who value what William O. Douglas called "the most precious liberty man possesses" -- the right to earn an honest living -- should encourage judges to stop worrying and learn to love Lochner.