The Lochner Era

The Lochner Era is a period of time in the history of the Supreme Court of the United States (SCOTUS) from 1905 to 1937. This period is described as horrible judicial conservative activism by progressives, and some nominally conservative folks too. Others describe it as a valiant defense of the Constitution and free  enterprise from the rise of virulent progressive regulatory schemes.

I’m in the latter category.During this time, conservative justices on the Supreme Court were able to overturn many schemes by progressives from Teddy Roosevelt to Woodrow Wilson to FDR and their respective Congresses. Due in part to the SCOTUS intervention against progressives, the Great Recession of 1921 never matured into the Great Depression, and fiscally conservative presidents Harding and Coolidge were able to halt the Wilsonian collapse and cut federal spending by an astounding 75%. The result? The fabulous time of great prosperity and invention that became known as the Roaring Twenties.

The case that began the Lochner Era and gave it its name is Lochner v New York (1905). It is described this way by progressives: An “abomination of a decision” allowing corporations to “ruthlessly exploit workers.” Moreover, they say that:

Lochner fabricated a so-called right to contract in order to strike down a New York law preventing bakery owners from overworking bakers, but its rationale has implications for any law intended to shield workers from exploitation. In essence, Lochner established that any law that limits any contract between an employer and an employee is constitutionally suspect. If desperation forces someone to agree to work 18 hours a day, seven days a week, for a dollar a day in a factory filled with toxic air, then courts must treat that law with heavy skepticism.

Unsurprisingly, this is wrong. First, while the case was nominally about a maximum-hours-per-week issue, it was orchestrated by large unionized bakeries who wanted to keep small family firms, willing to work long hours, from competing with them. New York had issued a rule that said that bakers (only) could not work more than ten hours per day or sixty hours per week. Large bakeries with lots of union employees had no problem with this (the law was their idea) as long as they did not have to compete on price with these hard-working immigrant upstart operations.

Second, the “Bakeshop Law” as it was called also had provisions for health and safety, and all of these were allowed to stand. Bakeries were not “factories filled with toxic air” and the Court itself made that distinction.

For 32 years, SCOTUS tended to rule to protect the rights of employees and employers to enter into contracts with each other. This period ended in 1937, in the case I discussed yesterday, with The Switch in Time that Saved Nine.

I will keep this (fairly) short, and leave you with two book reviews about the case:

Howard Gillman, in the book The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence, argues that the decisions of the era can be understood as adhering to a constitutional tradition rooted in the Founding Fathers’ conception of appropriate and inappropriate policymaking in a commercial republic. A central tenet of this tradition was that government should not exhibit favoritism or hostility toward market competitors (referred to as “class legislation”, which Gillman equates with the modern notion of special interests), and that it should exercise its police power in a neutral manner so as not to benefit one class over another. This would make for a faction free republic, with the underlying assumption that the American economy could provide for all citizens and social dependency as had been observed in Europe could be avoided. These ideas, according to Gillman, had been inherited by the Lochnerian judges, whose jurisprudence reflected a good faith attempt to preserve a tradition that was increasingly being undermined by changing industrial relations in the United States.


In Rehabilitating Lochner, David E. Bernstein writes a timely reevaluation of an infamous Supreme Court decision, and provides a compelling survey of the history and background of Lochner v. New York. This 1905 decision invalidated state laws limiting work hours and became the leading case contending that novel economic regulations were unconstitutional. Sure to be controversial, Rehabilitating Lochner argues that the decision was well grounded in precedent—and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents.

Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, Rehabilitating Lochner argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since.

I wholeheartedly agree, and this second book in particular I recommend.

===|==============/ Keith DeHavelle