by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef’s latest Forbes column focuses on Kentucky Sen. Rand Paul’s recent speech in praise of a more than 100-year-old U.S. Supreme Court decision: Lochner v. New York.
Saying anything good about Lochner among the vast majority of American lawyers and judges is like telling a group of college history professors that Calvin Coolidge was a great president. Senator Paul has the courage to say controversial things and doesn’t fear going against the grain.
Lochner is one of the cases that law students are most likely to remember from Constitutional Law because the decision is almost invariably denounced as a horrible, embarrassing blunder – nearly as bad as Dred Scott. Senator Paul, however disagrees and so do I.
The facts of the case are as follows.
A New York statute regulating several aspects of the baking industry placed a 60 hour per week limit on the number of hours an employee could work. Joseph Lochner, a bakery owner, was charged with a crime when he continued to employ bakers for more than the maximum number allowed. His attorney argued that the law was invalid: the 14th Amendment protects freedom of contract against arbitrary interference and the state had not shown its law to be a reasonable exception.
At the time, many bakeries worked with long shifts because the bakers would prepare the bread and start it baking, rest while it baked, then resume work after it was done. That traditional sort of bakery was beginning to give way late in the 19th century to different work arrangements: shorter shifts without the break. A hidden purpose of the law evidently was to help drive out the older, mostly non-union bakeries in favor of the newer, often unionized mode. …
… What Lochner boils down to is a ruling that people should be at liberty to make contracts according to their own values unless the government demonstrates that there is a strong justification for abridging that liberty. …
… What Senator Paul is advocating is neither judicial restraint nor judicial activism, but judicial engagement, where judges start with the presumption that people’s liberty should be protected against legislative encroachment, and approve laws only if the government can overcome that presumption.
That is a debate America needs to have during the upcoming presidential battle and for years beyond.