Lecture 44 Economic Substantive Due Process

Lecture 44Economic 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 • 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

Lecture 44 Economic Substantive Due Process