Posted by David Bernstein:
Was Lochner Counter-Majoritarian?:
http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1153890852
Legal scholars generally assume that the Supreme Court's decision in
Lochner v. New York, invalidating a state-imposed 60 hour work week
for bakers, was "counter-majoritarian." For example, Paul Finkelman,
an excellent legal historian, recently wrote, in the Harvard Law
Review: "A majority of the Justices had no qualms about offending the
public in Lochner.... the Court might still have chosen to ignore
public sentiment in Plessy and Berea College, just as it did in
Lochner." John Semonche more specifically claims that "[n]ot since the
debacle of 1895 [when the Supreme Court invalidated the federal income
tax and upheld an injunction against Eugene V. Debs's American Railway
Union strike] had a case stirred as much protest in the popular press
and professional journals.
Yet, in researching my just-published article on the history of
Lochner, I found little evidence of overwhelming public sentiment
against Lochner, and, indeed, found a surprising level of support for
the decision in contemporary periodicals:
The few libertarian periodicals of the day hailed Lochner, seeing
it as a blow against labor union tyranny. The Nation, for example,
editorialized that the main effect of the decision "will be to stop
the subterfuge by which, under the pretext of conserving the public
health, the unionists have sought to delimit the competition of
non-unionists, and so to establish a quasi-monopoly of many
important kinds of labor."
Editorials in some major newspapers also applauded the decision.
The New York Times praised the Supreme Court for refusing to
enforce "any contracts which may have been made between the
demagogues in the Legislature and the ignoramuses among the labor
leaders in bringing to naught their combined machinations." The
Washington Post initially noted that the opinion allowed for
reasonable police power regulation. The Post, defending the Court
from its critics, later added that the liberty of contract between
employer and employee protected in Lochner "is a principle older
than the Constitution or the statutes. Its maintenance is
indispensable to the preservation of liberty." The Los Angeles
Times published two editorials praising Lochner. The Literary
Digest reported that the Brooklyn Eagle, New York Press, Brooklyn
Standard Union, Baltimore Sun, and Baltimore News all praised the
decision. ...
In contrast, the Lochner ruling met with immediate condemnation in
Progressive and labor union circles and in some mainstream
newspapers [Brooklyn Times, Brooklyn Citizen, and Philadelphia
Press].
What I did find was that law review commentary was overwhelmingly
hostile to Lochner, often on the grounds that the court ignored
"social reality" in favor of "abstract reasoning" [critics neglected
Justice Peckham's statement that his view of the relative
healthfulness of baking was informed by "looking through statistics
regarding all trades and occupations"], and remained so for the next
100 years.
I wonder, then, whether the conventional wisdom that Lochner was
counter-majoritarian really has any basis, or is a matter of
historians and law professors projecting their own views, and the
views of their academic predecessors, onto the public at large, and
also giving more weight to the views of labor activists than their
influence at the time in the general population would warrant.
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