That the court had created an insurmountable barrier to reform. Thing lochner is that the lochner is that the lochner has nothing to do with sense. A fundamental a contract is a voluntary agreement between two people. It involves some degree of meeting of the minds and dealing at arms length. Those conditions were clearly employeremployee relations in a newly industrialized economy of the turn of the 20 century. Law wasal target of the the conditions of labor in new york seller bakeries. These were typical of many wage earning jobs of that era. Working conditions in these bakeries were atrocious. There were located in tenement bases, damp, dark, filthy, and they had ceilings as low as five and a half feet high. Poor ventilation caused them to be stifling hot when the ovens were on. Work involved heavy lifting, and their pay was low compared to other jobs. Understandtant to that the workers were typically paid by the day or the week, and the number of hours a person worked was unilaterally determine by the employer. Main complaint was the number of hours they were required to work or it by 1895, when the bakeshop law was passed, and many bakers work more than 100 hours per week. Why in the world would anyone in their right mind agreed to work and such terrible conditions for so many hours and so little pay . The answer is that the economic circumstances gave them no choice. The shorterate of Hours Movement put it, and antistomach can make no contract. Stomach can make no contract. As applied in the lochner case, a guaranteed little to workers of the time the size what might be described as the right to integer oneself for the day or the week. Oneself for the day or the week. If the doctrine of the liberty of contract that raises the was not, if lochner about the liberty of contract, what was it about . The answer is that it was part of a more sweeping history. That history held that the constitution implied a right to businesses and individuals to be free from government regulation. S. Was revolutionary revolutionary and controversial because it ran contrary to the traditional american views of the relationship between Property Rights and he duty of the state to regulate in the public interest. It did not originate with lochner, but lochner came to symbolize the acceptance of it. The right to be free from government regulation is not expressly guaranteed in the constitution, therefore any argument in favor of it depends on the claim that it is a dominant characteristic of our constitutional tradition. The 1980s, many legal historians have attempted to do just that. They have maintained that it is an expression of a longstanding american tradition of a limited government reflected in jeffersonian democracys mistrust of of government. Is some truth to these observations, a closer look at history demonstrates that when it came to regulation of business, the tradition of limited government existed more in theory than it did in practice. States routinely regulated the economy, licensing building and regulate public markets, controlling the quality and quantity and the price of goods. Even the condition of employment, which was then called the law of masterservant are common examples of the state regulating the economy in the public interest. There may be a tradition of limited government in american theory, but the prevalence of such a wide range of regulations demonstrates that another tradition actually dominated in daily life. That tradition was expressed in terms of the states duty to use its authority, described as the police power, to protect the rights of the people or the rights of the community, and it was rooted in an american ideal that links liberty with popular sovereignty and democracy. And theition tradition was not just predominate in daily life, but also constitutional doctrine. , the object ofe all governments is to promote the happiness and prosperity of the community. While the rights of private property are guarded, we must not forget that the Community Also has rights, and the happiness and wellbeing of every citizen depends on their faithful preservation. 1877, a chief justice expressed the same sentiment. He observed that under the police power, the government regulates the conduct of its citizens, one towards another, and the manner in which he show uses property when such regulation becomes necessary for the public good. Part of this tradition of the rights of the community and popular sovereignty was an understanding that private individuals and businesses can be every bit as much a threat to liberty as government. Especially when they wheeled and normas economic power. Lochner liberty of contract doctrine lasted until it was rejected. Majority, thee chief justice return to the old tradition that recognize the authority of the states to use their police power to balance Property Rights with the rights of the community or the public good. That a wide field of discretion to protect the health public, butf the also emphasized that the police power included promoting the piece in good order to regulations designed to ensure wholesome traditions of work and freedom from oppression. Concludedjustice then , the exploitation of a class of workers who are in a nonequal position with respect to Bargaining Power and are thus defenseless against the denial of a living wage is not only detrimental to their health and wellbeing, but casts a direct burden of support on the community. I began by observing that politicians, judges, and constitutional scholars still tend to rank lochner with dread scott as the worst decisions in history. Lochner deservesat tour its reputation. The constitutional tradition out of which it was based existed more in theory than in practice. It failed to recognize and appreciate the realities and conditions of america in the newly industrialized economy. Thank you. [laughter] [applause] now to professor barnett. Thank you for that introduction. Thank you for coming today. Agree about quite a bit. Do weestion is how adjudicate such a disagreement in front of an audience like this. Let me just disagree with one thing of the many things paul just said. He said that lochner was part of an era in which there was supposedly a belief and a right to be free from government regulation, and that is what makes lochner so evil, that there is a right to be free from government regulation. I can prove that this is false, that this claim, that there was a belief and a right to be free of government regulation. I would rely on a case to support this proposition. Is case i would rely on lochner v. New york. Why do i say that . The statute that was at issue in lochner v. New york was called the take shop act. Shop act. It was an extension of the health and safety of the operation of bake shops. It was passed to address the conditions that were rightfully pointed out. Not all were like this, but there were bake shops like this. It included regulating the height of ceilings, the composition of floors, regulating how often they had to be whitewashed, regulating the location of the ovens, where people could sleep relative to those ovens, regulating the washroom facilities, the animals that could be present on the premises, caps on late. Cats only. It was an extensive body of regulations. Toyou want an easy place identify the text of the statute without having to search too hard, all you have to do is read the majority opinion in lochner because they reproduce the text of the bake shop act. No one questioned the constitutionality of the bake shop act as an exercise of police power for the state of new york. That included the majority of the Supreme Court in the lochner case, including a justice who cited the entire act as an example of a legitimate health and safety law. It seems as though since that was an extensive regulation, set ,f government regulations addressing health and safety concern is demonstrably false good if anyone thought there should be no regulation of the economic activity, it was certainly not the Supreme Court case. Lochner at issue was the single provision of the bake shop act. Thatwas a provision mandated or restricted the working hours of people who work in the bake shop. The proprietors good work as long as they like, but the employees werent limited to 60 hours and could not work more than that. There was one provision that was challenge, and that was the only provision invalidated. The rest was considered entirely constitutional. Or had was identifying it as a health and safety regulation because they could not see a close fit between that prohibition, which was a criminal prohibition, employing longer in the bake shop industry as a health and safety law. In reaching that conclusion, the court relied on an extensive appendix to the statute, which cited general statistics about the health and safety of the banking industry, and the court cited that and based its opinion in part on those empirical studies cited in the brief challenging the statue. Given that, how did lochner assume the case . Iso agree that lochner considered to be a terrible case, and a case that sometimes ranks with dread scott. How did that come to pass . This is a question of constitutional narrative. One thing i teach when i teach constitutional law is that the practice of constitutional law is not the way i teach contract law. With contract law, you learn a body of doctrine, the doctrine of consideration, the statute of frauds, and you apply that doctrine to fax. Constitutional law be practiced like that, but it is not. It is largely practiced by the canonical cases and the anticanonical cases. The canonical cases are those rightly cited. Cases are theical ones considered to be evil and wrong. If the argument youre making or you can convince the court your opponents are making is going to lead to undermining one of the canonical cases, then they are in trouble. If it endorses one of the anticanonical cases, than they are in trouble. So everyone has to know which cases are which. Thener is clearly in anticanning, but when did it get there . One would think it had been there for a long time. Was it there when it was decided . It turns out it was not there. When it was decided, it was a monday in case. It did make the newspapers, thats true, but the newspapers editorialized in favor of the lochner case. The New York Times did, the Washington Post did, the Los Angeles Times did. The didre a couple of it come a particular labor union newspapers, but the General Press did. It was not considered to be an a popular case of the time. The person who made it, sort of the Citizens United of the day, shall we say, was none other than republican theodore roosevelt, progressive republican theodore roosevelt. Roosevelt served as president , then he was out of office for a term, then he saw the nomination of the Republican Party again in 1912. As he ran for office, one of the planks was condemning the interference of the Supreme Court with progressive era legislation. Famous address covered on the front page of the New York Times in Carnegie Hall in which he lambasted the Supreme Court and lambasted what he called the bake shop case. Be called by the generic names, the lottery case, would it be nice if we did that again . We now have to memorize these names. At any rate, it was the bake shop case, and he extolled the virtues of his favorite justice, Oliver Wendell holmes junior in that speech and it made it into the headlines of the New York Times that he was praising homes in the lochner case. He was denied the republican nomination. He then moved to a thirdparty. It was called the progressive party. He helped to form the party and ran for that partys nomination, got it, and ran as a thirdparty under the progressive party. It split the republican vote and allowed Woodrow Wilson to become president. Firstas lochners appearance on the stage. You would now think its going to be a famous thing from now on, but it went into obscurity. It wasnt talked about. There was a big debate about the role of courts however, and Justice Holmes dissenting opinion made him one of the champions of the progressives arguing for judicial restraint against progressive legislation, arguing the courts had no business interfering with the policymaking that was being done at the state, federal level, so the call for judicial selfrestraint became a clarion call, and homes was a champion of that in his lochner dissent. Being relatively , a brief interlude, because once the Supreme Court was entirely appointed by progressive president s, theodore roosevelt, then Woodrow Wilson, then herbert hoover, and finally franklin roosevelt. Progressiveour president s appointing judges, so the court became increasingly progressive. But a time it completely adhered to this doctrine of judicial restraint, something happened that caused some of the justices to rethink their views. The something that happened was the republicans took control of congress in 1946. Once the republicans took 1946, the congress in idea of judicial restraint started not to seem like such a wonderful idea anymore, so that the idea that no matter what congress would do, we would defer to it. Some of the justices started to have second thoughts about this, and a very interesting article was written in Fortune Magazine about this development by a historian, who was a very famous new deal progressive historian, harvard man, good harvard man, and he writes the story and devise the court up into two contending groups. The first group he calls the liens of selfrestraint. They are people like Felix Frankfurter and others. The other group is called judicial activist. It is the first time we know the term judicial activism was used. In the article, he says what the people had decided was they were starting to reconsider this restraint idea. The probably for was not that judges were at politically and getting in the way of populist legislation, we were off based on that. The probably said was that it was inevitable that the judges would be acting politically, the question was what were they acting politically for. So you had this let. He did associate one side of court with the yale law school. He did not associate the other side with a harvard law school. Still lochner has not played a role yet it we have a split on the court between good new deal judges, new deal restraint , or court activist judges. They are fighting amongst themselves, and that brings us to the 1960s and the case of griswold versus connecticut. What does griswold do . He protects the underrated right of privacy to use and to possess and to sell contraceptives. The question is what gave the court the power to invalidate a connecticut law to possess and use contraceptives . , a gooder douglas gave yell man, the answer Justice Douglas gave was that it was the right of privacy and he relied d on other cases in making that case. At some point, the challenge was raised to him, doesnt this give rise to this economic liberty case like this lochner thing . The court wasnt quite sure what the lochner case was. They thought it had to do with the size of bread. They were not quite sure what the lochner case was. There was a case like that, but it wasnt lochner. Not playedochner has a huge role. Justice douglas as we were not take the road that was urged upon us to do Something Like lochner. Then where it really comes into play is in gerald gunthers casebook. It was published in 1970. Look how recent we are, puts case book and pairs it with griswold as a way of questioning what the court is up to is any different than what it used to do. Of1975 comes the new edition roehers casebook, and versus wade is decided. Now gunther expands the lochner section into a whole ,hapter, starts with lochner goes through griswold, and then through roe versus wade. He called this the lochner era. Before 1970, there was only one reference to anybody even referring to it as the lochner era. The title of the chapter was substantive due process, rise, decline, and revival. So he was doing that. I happened to be a law student 1975. I took constitutional law, so i use the First Edition of gunther , so i read this chapter as a law student and read the whole thing and thought, wow, this is interesting. I really love the lochner case, so maybe that means griswold and roe versus wade are ok too. I think the sociology was backwards. Roe versusople liked wade, and a lot of people like griswold. Itn you put lochner against and say they are doing the same thing, i think this cause people to rethink lochner, and even was stillhner objectionable, or wasnt an objectionable for the same reasons. Judges were interfering with the political process, but now thats not why it is objectionable. When he published the First Edition of his treatise in 1978, he has a whole chapter on lochner. He says the prom with lochner was not that they got the problem with lochner was not that they got it wrong, they were protecting the wrong right. Freedom of contract was not a right they should be protecting. Ok, so now lochner used to be very bad, and now it is only very bad. Here is the last part of my story. I have a lot more to say about was athink lochner reasonable decision. I will close with one personal anecdote. One of my earliest articles on constitutional law was telling the story about how it was thanks to Jerry Gunther and his casebook that lochner started to get a better reputation. You had scholars saying nice , sayingbout lochner its not as terrible as it used to be, and so i credited gunther with having elevated the stature of lochner. That is why people started thinking better of it. I got a hand written note, which in forgery i cannot find, so you would have to take my word for it. Written note from Jerry Gunther expressing his shock and dismay that his casebook could possibly have the effect i described, because his whole purpose of putting these together was to undermine roe versus wade and griswold, the opposite of what he wanted to do, elevate lochner, but it may have been a case of unintended consequences. So lochner has gone from being very, very bad to being only ba