The Origins of Lochner Era Police Powers Jurisprudence

The Constitution here referred to cannot be simply the document. It can only be that Aristotelian conception of the constituting idea or body of ideas which lies within the political system and, indeed, within the society generally and which by its presence qualifies the society and its political system to become a cohesive entity.—H. Mark Roelofs

The notoriety of Lochner v. New York (1905) rests on the widespread assumption that the case represents the corruption of judicial power in at least two respects. First, by invoking an ostensible right to liberty of contract to trump a maximum hours law for bakers, the majority took the unprecedented step of constitutionalizing an ethos of market freedom at a time when it was a matter of political dispute whether an unregulated market was always the best policy. Second, in announcing that laws interfering with liberty of contract would be upheld only if (in the opinion of the Court) they were "reasonable and appropriate" attempts to promote "the morals, the health or the safety of the people," Justice Peckham promulgated a doctrine that illegitimately gave the justices the authority to second-guess legislative conclusions regarding effective public policy—an authority that the members of the majority exercised with a vengeance when they gave their blessing to those sections of the Bakery Act that related to the conditions of the workplace as "reasonable and appropriate exercises of the police power of the State" but struck down those sections relating to working hours as merely "labor laws," unrelated to "the interests of the public" and therefore "unnecessary and arbitrary interferences" with personal liberty.

The implication of this characterization of the Lochner era is that the hostility exhibited toward certain types of legislation by turn-of-the-century jurists was a function of the idiosyncratic biases of unrestrained judges, and not a function of any standards or practices embedded in the American constitutional tradition. However, as I hope to show in this chapter, the essential elements of the Lochner Court's approach to the bakery law—the emphasis on market liberty, the belief that market liberty could be interfered with if legislation promoted a valid public purpose, and the suggestion that valid public-purpose legislation was distinct from laws that merely promoted the interests of some classes at the expense of others—were long-standing features of nineteenth-century police powers jurisprudence; these elements were inherited by Lochner era jurists, not invented by them. Maybe more fundamentally, the assumptions about the nature and scope of legitimate legislative authority that led the Lochner Court to void a maximum hours law were built into the structure and ideology of the Constitution itself at the time of the founding. In short, the judiciary at the turn of the century was, to a large extent, giving voice to the founders' conception of appropriate and inappropriate policymaking in a commercial republic, a conception that, over time, had been elaborated, clarified, and transformed into a workable set of doctrines by state court judges in the second quarter of the nineteenth century.

Looking back at the founding, and at the formative years of nineteenth-century police powers jurisprudence, will help reacquaint us with a political tradition that no longer governs the exercise of legislative power in American politics. Still, the language and preoccupations of that tradition shaped the contours of state-society relations for nearly a century and a half. It was a language that disdained "factional" politics, partial laws that represented the corrupt use of public power by certain groups seeking to advance purely private interests; it celebrated the value of state "neutrality," the principle that government should show no favoritism or hostility toward market competitors, but should exercise power only to advance a true public purpose. However, this language did not operate only at the level of flexible and indeterminate abstraction. Those who supported the Philadelphia Constitution used these concepts in the hope of delegitimizing certain kinds of laws passed by democratic state legislatures in the 1780s, laws such as debtor-relief legislation and wage and price controls. The framers insisted that their "more perfect union" would ensure that legislatures remained neutral with respect to the conflicts arising among and between social groups competing in the private economy. In the second quarter of the nineteenth century this language was used by Jacksonian Democrats to assault what they considered to be all sorts of unnecessary and illegitimate special privileges bestowed by legislatures. Over time, state courts began to use the language to distinguish legitimate exercises of state power from exercises of state power that did not, in their judgment, deserve to be called the "law of the land." Thus in history did this political tradition become meaningful rather than merely rhetorical. In order to appreciate the way this tradition shaped the nineteenth- and early-twentieth-century judiciary's understanding of the scope of legitimate legislative authority—including the Lochner Court's understanding—it is important to pay some attention to the historical evolution of this tradition.

One other lesson relevant to the Lochner era can be mined from these earlier events, and it has to do with the reason why this long-standing tradition came into disrepute around the turn of this century. When the master constitutional principle of formal equality or government impartiality was first elaborated by the framers in the 1780s, its legitimacy rested specifically on the assumption that a commercial republic would not create conditions of social dependency that could be used by vulnerable groups to justify requests for special government protection and assistance. If, as the framers argued, the market was essentially harmonious and liberty loving, and if the almost endless access to the freehold on the American frontier ensured that those who might happen to find themselves in pockets of dependency would always be able to escape these conditions and become free and independent citizens, then there was little justification for allowing the government to intervene in the conflicts that arose among groups competing in a free market. So long as people considered this depiction of the social implications of capitalism to be an accurate representation of their own experiences, the neutral state remained a relatively uncontroversial characterization of American first principles. However, at the same time the founding vision was being translated into political practice and constitutional law, capitalist forms of production were beginning to mature; and throughout the nineteenth century those who felt...