Lecture 44 Economic Substantive Due Process Part 3: The Roller Coaster

This lecture We focus on the roller coaster of Substantive Economic Due Process 1898-1923 Pages 642-654 Please focus on Lochner!

Holden v. Hardy (1898) Holden v. Hardy (1898) Challenge to a Utah law prohibiting mining companies to work their employees more than eight hours a day Opponents said this interfered with the rights of persons to contact for voluntary employment Utah said it was for health regulatory purposes Using Mugler, the Court ruled for Utah Because of the nature of mining It posed unique health issues This was a 7-2 ruling (Brewer and Peckham dissenting)

Lochner v. New York (1905) Lochner v. New York (1905) Background In 1897, New York passes the Bakeshop Act It prevented employees of bakeries to work more than 60 hours per week or 10 hours/day Lochner was convicted of and fined $25 for requiring an employee to work longer Two years later he is convicted the second time for the same offense He was sentenced to $50 fine or 50 days in jail if he failed to pay He lost at the New York Court of Appeals and challenges the case to the Supreme Court based on the Due Process Clause of the 14th Amendment Question Did this law violate the liberty of contract and private property under the 14th Amendment Due Process Clause?

Lochner v. New York- II Arguments For Lochner (strike down law) It does not apply to all bakers and singles out certain bakers not a health measure Baking is not a dangerous occupation this is a labor law, not a health law Employers and employees have a right to agree on hours and wages without governmental interference violation of 14th Amendment This is an encroachment on the right to contract and private property

Lochner v. New York- III Argument For New York (uphold law) What is a police power is best decided by elected state legislators based on local conditions that may be unique to that area The state has an interest in health and safety of food production Bakers perform their jobs at night and tasks are repetitive They have poor ventilation and other unsafe standards The law reduces their exposure to these environs

Lochner v. New York- IV Justice Peckham rules for a 5-4 Court This law interferes with the right of contract between the employer/employee The general right to contract in business is part of the liberty of the individual protected by the 14th Amendment The right to purchase or sell labor is party of this liberty interest The states have some limited right to regulate under their police powers Holden v. Hardy was limited to specific circumstances and does not apply here To allow no limits to state police powers would be to render the 14th Amendment meaningless The Court finds this to be purely a labor law, not relating to health Therefore not subject to the police powers

Lochner v. New York- V More from Justice Peckham “Clean and wholesome bread does not depend on the whether the baker worked ten hours per day or only sixty hours per week” Which power will prevail- the power of a state to regulate or the right of the individual to liberty or person and freedom of contract? This has not reasonable relationship to public health The trade of a baker has never been found to be an unhealthy one If New York were to prevail, this could extend to all trades for regulation It could limit how many hours one could work to support at family this crippling it Many things could be considered “unhealthy”

Lochner v. New York- VI More from Peckham This could lead to much more in regulation Of employer hours, professionals and artists, etc. They also pass on the argument on cleanliness and hours worked He again notes this is merely a labor law disguised as a public health law

Lochner v. New York- VII Holmes, J. dissenting There is another dissent by Harlan, joined by Day and White He notes other areas that have been subject to police powers by states He attacks the majority for using its powers to promote a certain economic theory He points to an issue of using social Darwinism and laissez-faire He says the have perverted the word liberty in the 14th Amendment A reasonable person could see this regulation as reasonable to protect health

Muller v. Oregon (1908) Muller v. Oregon (1908) Background Lochner had seemed to have threatened all state regulations in terms of work hours Muller was a German immigrant who bought a laundry business He was charged with violating an Oregon law that had set maximum number of work hours for women in factories and laundries He challenged the law since it applies to women and not men The National Consumers’ League hired Louis Brandeis to represent them He presented a long fact based brief for the Court to consider

Muller v. Oregon- II Question Arguments Does the Oregon law violate a woman's freedom of contract implicit in the liberty protected by due process of the Fourteenth Amendment? Arguments For Muller (overturn the law) This law discriminates against women in their employment rights The law denies women and employers the right to enter into contracts for work in the same matter that men cannot There is no grounds for treating women who work in laundries different from women who work in other occupations they are neither dangerous or unhealthy This is not a law aimed at women’s healthy, but one to regulate their number of hours worked

Muller v. Oregon- III Arguments For Oregon (uphold the law) The right to buy and sell labor is still subject to reasonable restraint by the states through their exercise of police powers for health, safety, morals, and general welfare Laws restricting liberty must have a substantial relationship to health and safety and this law meets that Laws such as this are in place in other countries and states Long work hours for women can negatively affect their health based on studies

Muller v. Oregon- IV Justice Brewer writes for a unanimous Court One can make differences in laws based on sex One can apply special legislation to women based on certain factors Physical structure and maternal functions The woman has always been dependent on the man The limitations imposed by this law are both to the benefit of woman and all Women must be protected Men and women serve different functions This basically said women were inferior to men

Bunting v. Oregon (1917) Bunting v. Oregon (1917) This law extended the law in Muller to all industries and men and women alike Brandeis was recused Court rules 5-3 in favor of Oregon They never mentioned the Lochner case This law did not give an unfair advantage to one type of employer or employee This was related to health and safety Employers and employees could still negotiate on wages During this time 1887-1910 83% of cases decided in favor of state regulations Lochner may have been the exception, not the rule

Next lecture This one will be short Heyday of Substantive Due Process Pages 654-658