Justice Holmes and the Empty Constitution (Part 1)

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The Supreme Court’s decision in Lochner v. New York is as much maligned today as when this essay was first published in 2009. As just one example, a federal judge who approvingly cited Lochner in a recent decision nullifying coronavirus lockdowns set alarm bells ringing in liberal quarters over fears that economic liberty might be on the rise. By and large, however, Justice Holmes’s dissent in Lochner continues to hold sway, as evidenced by Justice Amy Coney Barrett’s decision to side with Holmes during her Supreme Court confirmation hearing. As you will read, a dangerous intellectual vacuum plagues American constitutional jurisprudence. I want this article to serve as both a warning that change is needed and as a pointer toward the needed change.

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On April 17, 1905, Justice Oliver Wendell Holmes Jr. issued his dissenting opinion in the case of Lochner v. New York.¹ At a mere 617 words, the dissent was dwarfed by the 9,000 words it took for the Supreme Court’s eight other justices to present their own opinions. But none of this bothered Holmes, who prided himself on writing concisely. “The vulgar hardly will believe an opinion important unless it is padded like a militia brigadier general,” he once wrote to a friend. “You know my view on that theme. The little snakes are the poisonous ones.”²Of the many “little snakes” that would slither from Justice Holmes’s pen during his thirty years on the Supreme Court, the biting, eloquent dissent in Lochner carried perhaps the most powerful venom. A dissent is a judicial opinion in which a judge explains his disagreement with the other judges whose majority votes control a case’s outcome. As one jurist put it, a dissent “is an appeal . . . to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”³ Holmes’s Lochner dissent, though little noticed at first, soon attained celebrity status and eventually became an icon. Scholars have called it “the greatest judicial opinion of the last hundred years” and “a major turning point in American constitutional jurisprudence.”⁴ Today, his dissent not only exerts strong influence over constitutional interpretation and the terms of public debate, but it also serves as a litmus test for discerning a judge’s fundamental view of the United States Constitution. This means that any Supreme Court nominee who dares to question Holmes’s wisdom invites a fierce confirmation battle and risks Senate rejection. As one observer recently remarked, “The ghost of Lochner continues to haunt American constitutional law.”⁵

Holmes’s dissent in Lochner blasted the majority opinion endorsed by five members of the nine-man Court. Holmes, as if anticipating the modern era of “sound bites,” littered his dissent with pithy, quotable nuggets that seemed to render the truth of his opinions transparently obvious. Prominent scholars have called the dissent a “rhetorical masterpiece” that “contains some of the most lauded language in legal history.”⁶ His “appeal to the intelligence of a future day” was a stunning success. So thoroughly did Holmes flay the majority’s reasoning that Ronald Dworkin, a prominent modern legal philosopher, dismisses the majority decision as an “infamous . . . example of bad constitutional adjudication” that gives off a “stench”; and Richard A. Posner, prolific author and federal appellate judge, writes that Lochner is the type of decision that “stinks in the nostrils of modern liberals and modern conservatives alike.”⁷

What heinous offense did the Lochner majority commit to provoke Holmes’s caustic dissent? It was not the fact that they had struck down a New York law setting maximum working hours for bakers. Holmes personally disapproved of such paternalistic laws and never questioned the Supreme Court’s power to strike down legislation that violated some particular clause in the Constitution.⁸ No, in Holmes’s eyes the majority’s unforgivable sin did not lie in the particular result they reached, but in the method by which they reached it. The majority interpreted the Constitution as if it embodies a principled commitment to protecting individual liberty. But no such foundational principle exists, Holmes asserted, and the sooner judges realize they are expounding an empty Constitution — empty of any underlying view on the relationship of the individual to the state — the sooner they will step aside and allow legislators to decide the fate of individuals such as Joseph Lochner.

Lochner, a bakery owner whose criminal conviction sparked one of the Supreme Court’s most significant cases, never denied he had violated the New York Bakeshop Act of 1895. Instead, he contended that the statute itself was unconstitutional. The majority agreed with Lochner, and Holmes was moved to dissent — for reasons that are best understood against the background of Progressive Era reform.

The New York Bakeshop Act of 1895

The first decade of the twentieth century was a time of rapid economic and population growth in America. European immigrants streamed into the cities, searching for the upward economic and cultural mobility that defined the American Dream. Of course, they all needed to eat, and the baking industry was one of many that expanded rapidly to meet demand. From the growth pangs of that industry came the legal dispute that eventually took the form of Lochner v. New York.

The great, mechanized bakeries that today produce mass quantities of baked goods had not yet been organized. What few machines had been invented (such as the mechanical mixer, patented in 1880) were not widely owned.⁹ Thus three-quarters of America’s bread was baked at home, mostly in rural areas.¹⁰ But in the fast-growing cities, many people lived in tenement apartments that lacked an oven for home baking. Bread was baked here as it had been in urban environments for centuries, as it had been in ancient Rome — in commercial ovens scattered about the city. Consumers could walk a short distance and buy what they would promptly eat before it went stale (the first plastic wrap, cellophane, was not manufactured in America until 1924).¹¹ In New York City, bakeries were often housed in tenement basements whose solid earth floors could support the heavy ovens.

From the great Midwestern farms came massive railroad shipments of flour, which was packaged and distributed by wagons and trucks to each bakery’s storeroom. Laborers were needed to unload bags and barrels that weighed as much as two hundred pounds; sift the flour and yeast; mix the flour with ingredients in great bowls, troughs, and sifters; knead the dough; fire up the ovens; shove the loaves in and out of the ovens; and clean and maintain the tools and facilities.¹² Most urban bakeshops employed four or fewer individuals to perform this work.¹³ Long hours were typical, as was true generally of labor at the turn of the century, on farms and in factories. Indeed, bakers worked even longer hours than other laborers. Ovens were heated day and night, and bakers worked while others were sleeping, so that customers could buy fresh bread in the morning.¹⁴ A baker’s workday might start in the late evening and end in the late morning or early afternoon of the next day.¹⁵ A typical workday exceeded 10 hours; workweeks often consumed 70 or 80 hours, and on occasion more than 100 hours.¹⁶

These bakeshops did not feature the clean, well-lit, well-ventilated working conditions that mechanization and centralization would later bring to the industry. Urban bakeshops shared dark, low-ceilinged basement space with sewage pipes. Dust and fumes accumulated for lack of ventilation. Bakeshops were damp and dirty, and facilities for washing were primitive.¹⁷ In order to entice people to work long hours in these conditions, shop owners had to offer wages high enough to persuade laborers to forgo other opportunities. A typical bakeshop employee would earn cash wages of as much as $12 per week.¹⁸ Despite harsh conditions, the mortality rate for bakers did not markedly exceed other occupations.¹⁹ And many who had escaped Europe to pursue upward mobility discovered that competing employers — when they could be found — offered nothing better.

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No governmental or private coercion required anyone to take a bakery job within the state of New York. Labor contracts were voluntary, and terminable at will. The law left each individual — employer and employee alike — free to make his own decisions, based on his own judgment, and to negotiate whatever terms were offered. But such voluntary arrangements were not satisfactory to the New York legislature in these, the early years of what later became known as the Progressive Era. The hallmark of that political reform movement, which began in the 1890s and ended with World War I, was increased government intervention in the marketplace through such measures as railroad regulation, antitrust legislation, and income taxation. Progressive reformers focused special attention on housing and working conditions and advanced a variety of arguments that laws should limit hours of labor. Some said this would spread jobs and wealth among more people, eliminating unemployment. Others attacked the validity of labor contracts reached between bakeshop owners and laborers. According to one critic, “An empty stomach can make no contracts. [The workers] assent but they do not consent, they submit but they do not agree.”²⁰

The Bakeshop Act of 1895, sponsored by a coalition of prominent powers in New York politics, passed both houses of the state legislature unanimously.²¹ The Act made it a crime for the owner of a bakeshop to allow a laborer to work more than 10 hours in one day, or more than 60 hours in one week. Bakeshop owners, however, were exempted; only employees’ hours were limited.²² Although similar laws in other states allowed employees to voluntarily opt out, New York’s law included no such “free-contract proviso.”²³ The law also provided funds for hiring four deputies to seek out violations and enforce the law.²⁴

New York v. Lochner: Crimes and Appeals

During the first three months after the Bakeshop Act took effect, 150 bakeries were inspected, of which 105 were charged with violations.²⁵ In 1899, inspectors brought about the arrest of Joseph Lochner, a German immigrant whose shop, Lochner’s Home Bakery, was located upstate in Utica.²⁶ Lochner had arrived in America at age 20 and worked for eight years as a laborer before opening his own shop. In contrast to the dreary basement bakeries that furnished the Bakeshop Act’s rationale, Lochner’s bakery (at least, as shown in a 1908 photograph) seems to have been a “relatively airy and mechanized aboveground shop.”²⁷ In any event, Lochner was indicted, arraigned, tried, and convicted of having offended the statute in December 1899, by permitting an employee to work more than 60 hours in one week. To avoid a 20-day jail sentence, Lochner paid the $20 fine.²⁸ Two years later, Lochner was arrested again, for having allowed another employee to work more than 60 hours.²⁹ (Not coincidentally, Lochner had been quarreling for many years with the Utica branch of the journeyman bakers’ union, an avid supporter of the maximum hours regulation.)³⁰ Offering no defense at his 1902 trial, Lochner was sentenced to pay $50, or serve 50 days in jail. This time, however, instead of paying the fine, he appealed his conviction.³¹ Lochner seems to have been a “hardheaded man who had determined that no one else was going to tell him how to run his business — not the state of New York and especially not the workers or their union.”³²

The first New York appellate court to consider Lochner’s case held that the parties’ right to make employment contracts was subordinate to the public’s power to promote health. The court treated the Bakeshop Act as a health law, assuming (without factual findings from the trial court) that working long hours in hot, ill-ventilated areas, with flour dust in the air, “might produce a diseased condition of the human system, so that the employees would not be capable of doing their work well and supplying the public with wholesome food.”³³ Rejecting Lochner’s argument that his contract rights were being violated, the court observed that “the statute does not prohibit any right, but regulates it, and there is a wide difference between regulation and prohibition, between prescribing the terms by which the right may be enjoyed, and the denial of that right altogether.”³⁴ In other words, a right is not violated unless it is annihilated.

The next New York appellate court to consider Lochner’s case also treated the Bakeshop Act as a health law that trumped the parties’ right to make labor contracts. The court pointed out that the statute regulated not only bakers’ working hours but a bakeshop’s drainage, plumbing, furniture, utensils, cleaning, washrooms, sleeping places, ventilation, flooring, whitewashing, and walls, even to the point that the factory inspector “may also require the wood work of such walls to be painted.”³⁵ Given the Act’s close attention to such health-related details, the court thought it “reasonable to assume . . . that a man is more likely to be careful and cleanly when well, and not overworked, than when exhausted by fatigue, which makes for careless and slovenly habits, and tends to dirt and disease.”³⁶

New York’s power to regulate for health reasons was grounded, the court held, in the “police power” that state governments possess as part of their sovereignty. While noting the “impossibility of setting the bounds of the police power,” the court held that the Bakeshop Act’s purpose “is to benefit the public; that it has a just and reasonable relation to the public welfare, and hence is within the police power possessed by the Legislature.”³⁷ According to a then-prominent legal treatise cited by the court, the Act’s maximum hours provision was especially necessary to safeguard health against the supposedly mind-muddling effects of capitalism:

If the law did not interfere, the feverish, intense desire to acquire wealth . . . inciting a relentless rivalry and competition, would ultimately prevent, not only the wage-earners, but likewise the capitalists and employers themselves, from yielding to the warnings of nature and obeying the instinct of self-preservation by resting periodically from labor.³⁸

In a concurring opinion, another judge warned that to invalidate the law would “nullify the will of the people.”³⁹

In dissent, however, Judge Denis O’Brien urged that the Bakeshop Act be struck down as unconstitutional. He, too, acknowledged the long-established understanding that the police power authorizes legislation “for the protection of health, morals, or good order,” but he did not believe that the maximum hours provision served any such purpose.⁴⁰ Instead, he urged that this portion of the law be voided as an unjustified infringement on individual liberty:

Liberty, in its broad sense, means the right, not only of freedom from actual restraint of the person, but the right of such use of his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel those rights or restrict his freedom of action, or his choice of methods in the transaction of his lawful business, are infringements upon his fundamental right of liberty, and are void.⁴¹

In so dissenting, Judge O’Brien was following leads supplied by Supreme Court justices as to how the Constitution should be interpreted. Justice Stephen Field, dissenting in the Slaughter-House Cases of 1873, had argued that a state monopoly on slaughterhouse work violated the “right to pursue one of the ordinary trades or callings of life.”⁴² And in Allgeyer v. Louisiana,an 1897 case, the Supreme Court had actually struck down a Louisiana insurance law, holding that the Constitution’s references to “liberty” not only protect “the right of the citizen to be free from the mere physical restraint of his person, as by incarceration” but also “embrace the right of the citizen to be free in the enjoyment of all his faculties . . . to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper.”⁴³

As Joseph Lochner pondered his next step, he found cause for hope in the fact that his conviction had been upheld by the narrowest possible margins (3–2 and 4–3) in New York’s appellate courts. The conflict between “liberty of contract” and the “police power,” like a seesaw teetering near equilibrium, seemed capable of tipping in either direction. Sensing that victory was attainable, Lochner took his fight to the highest court in the land.

Lochner v. New York: The Supreme Court’s Decision

When Lochner’s petition arrived at the Supreme Court, it was accepted for review by Justice Rufus Peckham, a noted opponent of state regulation and author of the Court’s Allgeyer opinion.⁴⁴ The case was argued over two days in February 1905.⁴⁵ At first the court voted 5–4 in private conference to uphold Lochner’s conviction. But then Justice Peckham wrote a sharp dissent that convinced another justice to change his mind. With a little editing, Peckham’s dissent then became the majority’s official opinion declaring the Bakeshop Act unconstitutional.⁴⁶

Early in his opinion, Peckham conceded that all individual liberty is constitutionally subordinate to the amorphous “police power”:

There are . . . certain powers, existing in the sovereignty of each state in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers. . . .”⁴⁷

Thus Peckham had to admit that the bulk of the Bakeshop Act, being directed at health hazards curable by better plumbing and ventilation, was valid under the police power. But the Act’s maximum hours provision, Peckham wrote, was not really a health law, because it lacked any “fair ground, reasonable in and of itself, to say that there is material danger to the public health, or to the health of the employees, if the hours of labor are not curtailed.”⁴⁸ Embed from Getty Images

So if the maximum hours provision was not a health law, what was it? In the majority’s view it was a “labor law,” designed to benefit one economic class at another’s expense.⁴⁹ “It seems to us,” Peckham wrote, “that the real object and purpose were simply to regulate the hours of labor between the master and his employees . . . in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employees.”⁵⁰ Finding that the “statute necessarily interferes with the right of contract between the employer and employees,” Peckham concluded that laws such as this, “limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual. . . .”⁵¹ Four justices sided with Peckham in holding that the “limit of the police power has been reached and passed in this case,” yielding a five-man majority to strike down the maximum hours portion of the New York Bakeshop Act.⁵² (Three justices, not including Holmes, dissented on grounds that the law really was a health measure and therefore valid under the police power.)

At this point — that is, before taking Holmes’s dissent into account — opinions on the Bakeshop Act’s validity had been expressed by some 20 appellate judges (12 in New York, and 8 on the Supreme Court). Remarkably, these 20 had split evenly: Ten thought the Act a legitimate exercise of the police power, while 10 thought it exceeded that power.⁵³ This is the kind of split opinion one might expect from a jury that has been asked to decide a close question of fact, such as whether the noise from a woodworking shop is loud enough to be classified as a public nuisance. In Lochner’s case, a score of highly experienced judges split down the middle while engaged in what they saw as a similar task, namely deciding whether a provision restricting work hours was or was not a health law. Justice Holmes, by radically reframing the issue over which his brethren had been agonizing, sought to show how this thorny problem could be made to disappear. In essence he asked a much more fundamental question: What if the Constitution contains no limit on the police power? What if the distinction between “health laws” and other types of law is just a red herring? In raising this issue, Holmes was banking on the fact that nobody — not even the five-man Lochner majority — regarded “liberty of contract” as an ironclad principle or claimed to know the precise nature of the states’ constitutional “police powers.” Before he was through, Holmes would call into question not only the majority’s decision to invalidate the Bakeshop Act but the very idea that the United States Constitution embodies principles relevant to such decisions.

Continued in Part 2.

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1. Lochner v. New York, 198 U.S. 45, 65 (1905) (Holmes, J., dissenting).
2. Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes (Boston: Little, Brown and Co., 1989), 283.
3. Charles Evans Hughes, The Supreme Court of the United States, quoted in Catherine Drinker Bowen, Yankee from Olympus: Justice Holmes and His Family (Boston: Little, Brown and Co., 1943), 373.
4. Richard A. Posner, Law and Literature (Cambridge, MA: Harvard University Press, 1998), 271; G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), 324.
5. David E. Bernstein, review of Michael J. Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s, Law and History Review,vol. 21 (Spring 2003), 231.
6. Posner, Law and Literature,p. 271; Bernard H. Siegan, Economic Liberties and the Constitution (Chicago: University of Chicago Press, 1980), 203.
7. Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1997), 82, 208; Richard A. Posner, Overcoming Law (Cambridge, MA: Harvard University Press, 1995), 179–80.
8. Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000), 63; Posner, Law and Literature,269.
9. Paul Kens, Lochner v. New York: Economic Regulation on Trial (Lawrence: University Press of Kansas, 1998), 7–8.
10. Ibid., 6.
11. “DuPont Rid of Cellophane,” New York Times, June 30, 1986, http://www.nytimes.com/1986/06/30/business/du-pont-rid-of-cellophane.html?&pagewanted=print (last accessed March 25, 2021).
12. Kens, Lochner v. New York, 13.
13. Ibid., 7.
14. 73 A.D. 120, 128 (N.Y. App. Div. 1902).
15. Kens, Lochner v. New York, 13.
16. Ibid.
17. Ibid., 8–9.
18. Ibid., 13. In that era, hourly wages were virtually unknown; laborers were hired by the day, or sometimes by the week.
19. Ibid., 10.
20. David Montgomery, Beyond Equality: Labor and the Radical Republicans, 1862–1972 (Urbana, IL: University of Illinois Press, 1981), 252 (emphasis in original).
21. Kens, Lochner v. New York, 63–64; Session Laws of New York, 1895, vol. 1, ch. 518.
22. Kens, Lochner v. New York,65.
23. Ibid., 21.
24. Ibid., 67.
25. Ibid., 90.
26. Ibid., 89; Peter Irons, A People’s History of the Supreme Court (New York: Penguin, 1999), 255.
27. Kens, Lochner v. New York,89.
28. Ibid., 90.
29. Ibid., 89.
30. Ibid., 90.
31. Ibid., 91–92. Ironically, Lochner’s team of appellate lawyers included one Henry Weismann, who had actually lobbied on behalf of the bakers’ union for passage of the Bakeshop Act in 1895.
32. Ibid., 89.
33. 73 A.D. at 128.
34. 73 A.D. at 127.
35. New York v. Lochner,69 N.E. 373, 376, 378-79 (N.Y. 1904).
36. 69 N.E. at 380.
37. 69 N.E. at 376, 381.
38. Christopher Gustavus Tiedeman, A Treatise on the Limitations of Police Power in the United States (St. Louis: The F.H. Thomas Law Book Co., 1886), 181, quoted in New York v. Lochner, 73 A.D. 120, 126 (N.Y. App. 1902).
39. 69 N.E. at 381 (Gray, J., concurring).
40. 69 N.E. at 388 (O’Brien, J., dissenting).
41. 69 N.E. at 386 (O’Brien, J., dissenting).
42. 83 U.S. 36, 88 (Field, J., dissenting).
43. 165 U.S. 578, 589 (1897).
44. Kens, Lochner v. New York,117.
45. Novick, Honorable Justice,280.
46. Ibid., 281.
47. 198 U.S. 53 (emphasis added).
48. 198 U.S. at 61.
49. 198 U.S. at 57; see alsoHoward Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993).
50. 198 U.S. at 64.
51. 198 U.S. at 53, 61.
52. 198 U.S. at 58.
53. The grounds on which Judges McLennan and Williams dissented, in the first New York appellate court, are unclear, as they did not deliver written opinions. 73 A.D. at 128.