Lochner v. New York: Economic Regulation on Trial.
Landmark Law Cases in American Society. Lawrence, Kan: University of
Kansas Press, 1998. ix + 216 pp. Chronology, bibliographical essay, index.
$12.95 (paper), ISBN 0-7006-0919-9 .
Timothy S. Huebner , Department of History, Rhodes College.
The case of Lochner v.
(1905), in which the U.S. Supreme Court invalidated a New York law
regulating maximum hours for bakers as violating the liberty to contract,
remains among the most significant decisions of the twentieth century.
Although long a subject of scholarly debate, not until the appearance of
Paul Kens's Judicial Power and Reform Politics: The Anatomy of Lochner
v. New York
in 1990 had any scholar produced a comprehensive book-length study of the
case. By issuing this updated and revised paperback version of his
original book, Kens and the University of Kansas Press make his work
accessible to a wider audience. Kens's fluid writing, as well as his
careful attention to constitutional issues and historical context, make
this book especially suitable for use in American constitutional and legal
Kens sets the stage for Lochner by examining the
baking industry and the effort to regulate maximum hours in the early
twentieth century. Unlike many industries at that time, small
independently owned businesses still dominated the baking trade, and
bakeshop owners usually looked for the least expensive space they could
find in which to practice their trade. The cellars of tenement
houses--cheap, available, and with sturdy enough floors to support heavy
baking ovens--housed the vast majority of New York City's bakeshops.
Bakers labored excruciatingly long hours in these dimly lit and poorly
ventilated bread factories. Kens claims that the average baker worked
seventy-four hours a week, although he notes that some worked well over a
hundred hours weekly. Reformers sought to alleviate the number of hours
bakers worked largely because of fears that this environment contributed
to the development of "consumption," the nineteenth-century term for a
disease of the lungs that in most cases could be equated with
tuberculosis. The long hours, moreover, made it nearly impossible for
bakers to maintain any semblance of family life--a concern of
progressives. Undergraduate students studying Lochner, often
unaware of the nature of early twentieth century baking practices, usually
fail to grasp why any state would enact a law regulating bakers' hours.
For this reason, Kens's description of the baking trade and the push for
reform is one of the most valuable sections of the book.
Kens digs even deeper into the historical background in his
detailed description of New York politics and the passage of the 1895
Bakeshop Act. Here the author describes Henry Weismann's reform efforts as
head of the Journeymen Bakers' and Confectioners' International Union, as
well as Edward Marshall's investigative report as a member of the state's
Tenement House Committee. The work of these men, as well as the
endorsement of New York's "mainstream elite," combined to make bakeshop
reform a popular cause. The measure to limit employees in bakeries to ten
hours a day and sixty hours a week posed no threat to Thomas Collier
Platt's New York Republican political machine, and Boss Platt believed
that supporting reform would help him maintain the support of the city's
German American population, the ethnic group most affected by the bill.
Bakeshop reform thus swept through the state legislature unopposed, as
both houses supported the legislation by unanimous votes.
Despite the popularity of the law at its passage,
constitutional debates converged with individual personalities to bring
the Bakeshop Act before the U.S. Supreme Court. Connecting the
constitutional issues arising out of such late nineteenth century cases as
Munn v. Illinois (1877) and In re Jacobs (1885) with the
broader ideologies of laissez-faire and social Darwinism, Kens skillfully
shows how the New York law contradicted widely held contemporary
assumptions about the proper role of government in the marketplace. It is
here that the author's talents are on full display, as he gracefully
guides the reader through court cases, social science treatises, and works
of literature, before outlining the facts of the Lochner case.
Kens's narrative, moreover, brings out the important role individuals
played in shaping the political and judicial process. Readers unfamiliar
with the details of the case, for example, will be surprised to learn that
the same Henry Weismann who had initiated the reform--after later becoming
a master baker and studying law--argued the case against the act before
the Supreme Court. And through careful research, Kens offers a convincing
explanation as to why New York Attorney General Julius M. Mayer mounted a
half-hearted defense of the Bakeshop Act in his brief: the newly-elected
Attorney General was probably preoccupied with preparing his state's
argument before the Supreme Court in The Franchise Tax Cases.
Scheduled to be heard less than two months after arguments in Lochner,
The Franchise Tax Cases were "far more sensational and far more
important to [Mayer's] political career" (p. 128). It is just this sort of
interpretative detail that makes Kens's study so incisive.
Somewhat less insightful is Kens's discussion of the
Supreme Court's decision. In general, he reasserts the traditional
interpretation: that Lochner symbolized the Court's preoccupation
with defending conservative propertied interests, and that in formulating
their opinion the justices relied more upon laissez-faire economic theory
than legitimate constitutional principles. More specifically, Kens finds
the roots of the Court's devotion to the liberty of contract in the
opinions of Justice Stephen Field, noting that one of Field's opinions
looked "as if he had laid a page of the United States Supreme Court
Reports over Social Statics and traced Herbert Spencer's first
principle" (p. 119). The Court adopted Field's narrow definition of the
police power in Lochner, Kens argues, and subsequently applied it
in other cases involving state regulation. "[I]n every case in which the
liberty of contract came into play, state law was matched against a test
of whether it protected public health, safety, moral, or peace and good
order," he writes. (p. 174). Kens refers to this view of state regulatory
power as "a laissez-faire-social Darwinian interpretation of the
Constitution" (p. 140).
Kens carefully deals with recent literature that takes a
more measured view of Lochner and the Progressive Era Court. He
concedes, for example, that the decision neither represented a struggle
between labor and concentrated wealth, nor demonstrated a conspiracy on
the part of "an organized bar" to infuse laissez faire ideas into the
Constitution (p. 153). Moreover, he acknowledges that studies by John E.
Semonche and Melvin Urofsky show that the Court in general during this
period upheld state regulatory measures much more often than they
invalidated them. Still, Kens clings to the idea of a laissez faire
Court, largely because Semonche's and Urofsky's work "fail to explain why
the judiciary, and the Supreme Court in particular, was the target of
reformers' barbs from the late nineteenth century through the 1940s" (p.
155). Rather than examining the record of the Court as a whole during this
era, Kens takes his cues from the Court's contemporary critics--arguing,
as they did, that the justices shunned constitutional reasoning and
embraced social Darwinism. On this point, Kens takes issue with Howard
Gillman, who has convincingly demonstrated the connections between
Jacksonian rhetoric, free labor ideology, and the Court's formulation of
the ideas of substantive due process and the liberty to contract.
According to Gillman, during the Lochner era the Court applied
constitutional principles that had roots in the early nineteenth
century. In the book's final pages, Kens attempts to answer Gillman by
arguing that laissez-faire constitutionalism represented a perversion of,
rather than an adherence to, Jacksonian ideals. Jacksonians, Kens points
out, stressed opposition to special privilege and elitism, rather than the
protection of property rights, as was evident in Lochner.
Kens's neo-traditional interpretation poses a challenge to
historians and legal scholars to revisit this significant twentieth
century case. Now that University Press of Kansas has published this study
in its Landmark Law Cases Series of paperbacks--complete with a useful
chronology and extensive bibliographical essay (instead of full
citations)--Kens's rich and provocative restatement of the traditional
interpretation can become fodder for debate in undergraduate and graduate
constitutional history courses.
. Melvin I. Urofsky, "Myth and Reality: The Supreme
Court and Protective Legislation in the Progressive Era," Yearbook of
the Supreme Court Historical Society, (1983); Urofsky, "State Courts
and Protective Legislation during the Progressive Era: A Reevaluation,"
Journal of American History, 72 (1985), 63-91; John E. Semonche,
Charting the Future: The Supreme Court Responds to a Changing Society,
1890-1920, (Westport, Conn.: Greenwood Press, 1978).
. Howard Gillman, The Constitution Besieged: The Rise
and Demise of Lochner Era Police Powers Jurisprudence, (Durham, N.C.:
Duke University Press, 1993).
Library of Congress
Call Number: KF228.L63K463 1998
* Lochner, Joseph -- Trials, litigation, etc.
* New York (State) -- Trials, litigation, etc.
* Bakers and bakeries -- Law and legislation -- New York (State) --
* Hours of labor -- Law and legislation -- New York (State) --
* Liberty of contract -- New York (State) -- History.
Citation: Timothy S. Huebner . "Review of Paul Kens,
Lochner v. New York: Economic Regulation on Trial," H-Law, H-Net Reviews,
December, 1999. URL:
“Kens…provides a blend of
the political, economic, and moral contexts of [the Lochner]
decision…[He] views Lochner as a conflict of competing
constitutional interpretations of economic and social ideals. This
excellent and well-written analysis of economic and social developments in
the early 20th century is recommended for readers interested in
American history and law.”
Steven Puro, review of
Lochner v. New York: Economic Regulation on Trial, by Paul Kens,
Library Journal 123 (October 15, 1998): 84.