Dissent in Lochner v. New York
198 U.S. 45 (1905) (1905) · Supreme Court of the United States
Lochner v. New York is one of the most criticized cases in Supreme Court history, striking down a maximum working hours law for bakers as violating a substantive due process right to freedom of contract. The case gave its name to the 'Lochner era,' during which the Court aggressively struck down economic regulations, and it remains a cautionary example of judicial overreach in constitutional law courses.
What was the dissent in Lochner v. New York?
Justice Holmes wrote a famous dissent arguing that the Fourteenth Amendment does not enact Herbert Spencer's Social Statics and that the Constitution permits states to regulate economic matters as long as a reasonable person could regard the law as a rational response to a perceived problem. Justice Harlan also dissented, arguing the evidence supported the legislature's judgment that bakery work posed genuine health risks.
Case Overview
Facts
New York enacted the Bakeshop Act, which prohibited bakery employees from working more than 60 hours per week or 10 hours per day. The law was intended to protect the health of bakers, who worked in conditions associated with respiratory illness. Joseph Lochner, a bakery owner in Utica, New York, was convicted and fined for permitting an employee to work more than 60 hours in one week. He challenged the law as violating the Due Process Clause of the Fourteenth Amendment.
Majority Holding
The Court held 5-4 that the Bakeshop Act violated the Due Process Clause by unreasonably interfering with the liberty of contract between employers and employees. The majority concluded that bakery work was not sufficiently unhealthy to justify the state's exercise of police power and that the law was not a legitimate health regulation but an improper labor regulation.
Majority Reasoning
Justice Peckham's majority opinion recognized a fundamental right to freedom of contract implicit in the Fourteenth Amendment's guarantee of liberty. While acknowledging that states could exercise police power to protect health, safety, and morals, the Court held that such exercises must have a direct, substantial connection to a legitimate end. The majority found the Bakeshop Act was not truly a health measure because bakers were not uniquely vulnerable to health risks from long hours, and the real purpose of the law was to regulate labor relations, which exceeded the state's police power.
The Dissenting Opinion
Justice Holmes wrote a famous dissent arguing that the Fourteenth Amendment does not enact Herbert Spencer's Social Statics and that the Constitution permits states to regulate economic matters as long as a reasonable person could regard the law as a rational response to a perceived problem. Justice Harlan also dissented, arguing the evidence supported the legislature's judgment that bakery work posed genuine health risks.
Key Quotes
“The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment.”
“The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. -- Justice Holmes, dissenting”
“A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. -- Justice Holmes, dissenting”
Impact and Legacy
Lochner inaugurated an era of aggressive judicial invalidation of economic regulation that lasted until the late 1930s. The case is now universally regarded as wrongly decided and serves as the paradigmatic example of improperly reading economic ideology into the Constitution. The term 'Lochnerizing' has become shorthand for judicial activism, and the case is invoked across the political spectrum as a warning against courts substituting their policy preferences for legislative judgments.
Exam Relevance
Lochner is tested in substantive due process questions, particularly those involving economic rights versus personal liberties. Professors use it to explore the boundaries between legitimate judicial review and judicial activism. Students should be prepared to compare the Lochner era's protection of economic rights with the modern Court's protection of personal autonomy rights under substantive due process.
Study Tips
- Understand why Lochner is considered wrongly decided and what it teaches about the dangers of substantive due process.
- Read and memorize key passages from Justice Holmes's dissent -- it is one of the most frequently cited dissents in constitutional law.
- Be able to compare the Lochner era's approach to economic substantive due process with the modern approach after West Coast Hotel.
- Consider how Lochner's critics address the counterargument that all substantive due process, including the protection of privacy rights, involves similar judicial value judgments.
Read the Full Case Analysis
View the complete brief for Lochner v. New York including full reasoning, doctrine, and study resources.
More Constitutional Law Dissents
United States v. Lopez
514 U.S. 549 (1995) (1995)
Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg, dissented, arguing that gun-related violence near schools substantially affects interstate commerce through its impact on education, workforce productivity, and the national economy. The dissent contended that the majority's approach was inconsistent with the Court's post-New Deal Commerce Clause precedents and improperly limited Congress's rational basis for finding a commercial nexus.
United States v. Morrison
529 U.S. 598 (2000) (2000)
Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, dissented, arguing that the majority's economic/noneconomic distinction was unworkable and that Congress's extensive factual findings of substantial effects on interstate commerce should have been given deference. The dissent contended that the majority was returning to the pre-New Deal era of judicial second-guessing of congressional economic judgments.
Gonzales v. Raich
545 U.S. 1 (2005) (2005)
Justice O'Connor, joined by Chief Justice Rehnquist and Justice Thomas, dissented, arguing that the majority's reasoning effectively returned to a pre-Lopez framework with no meaningful limits on Commerce Clause power. O'Connor contended that if homegrown marijuana for personal medical use is economic activity subject to aggregation, then it is difficult to imagine any activity that Congress cannot regulate.
National Federation of Independent Business v. Sebelius
567 U.S. 519 (2012) (2012)
The joint dissent of Justices Scalia, Kennedy, Thomas, and Alito would have struck down the entire ACA, arguing that the individual mandate was neither a valid exercise of the commerce power nor the taxing power, and that it was not severable from the rest of the Act. Justice Ginsburg, joined by Justices Sotomayor, Breyer, and Kagan, concurred in the judgment on the mandate but dissented on the Commerce Clause analysis, arguing the mandate was a valid exercise of the commerce power.
West Coast Hotel Co. v. Parrish
300 U.S. 379 (1937) (1937)
Justice Sutherland, joined by Justices Van Devanter, McReynolds, and Butler, dissented, maintaining that the minimum wage law unconstitutionally impaired the freedom of contract and that the meaning of the Constitution does not change with the shifting of economic winds.
Griswold v. Connecticut
381 U.S. 479 (1965) (1965)
Justices Black and Stewart dissented separately. Both argued that while the Connecticut law was foolish, there was no general constitutional right to privacy. Justice Black argued that the Court was engaging in the same substantive due process analysis it had properly rejected in repudiating Lochner, substituting its own values for those of the legislature.