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

2. This lecture
We focus on the roller coaster of Substantive Economic Due Process
Pages
Please focus on Lochner!

3. 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)

4. 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?

5. 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

6. 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

7. 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

8. 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”

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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
83% of cases decided in favor of state regulations
Lochner may have been the exception, not the rule

16. Next lecture This one will be short Heyday of Substantive Due Process
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