>>In 1895, the state of New York passed a law that regulated working conditions in bakeries.
And so it was a state law that established certain kinds of regulations on the labor
markets, the labor conditions in a typical industry—baking. And part of the law said
that no individual baker could work more than 10 hours a day or 60 hours a week. So it's
a law that set certain limits on the amount of work that an individual baker could be
contracted to do, and so it's a law that regulates the kinds of contracts that individuals could
make in this society. So here we have a paradigmatic example of the kind of conditions that are
created in an industrial economy, where you have not farmers who own their own land making
their own life, working for themselves independently, but you have a set of social relationships
that are grounded in economic purposes. So you have someone who owns a bakery and someone
who is working as a baker, and in this case there was a baker named Joseph Lochner. And
about 10 years after the enactment of this law in New York, this owner of the bakery
Joseph Lochner was convicted of violating its terms by employing bakers for more than
the prescribed limit of the number of hours they could work. And so he was fined $25,
he appealed his conviction. It was upheld. He appealed it again, eventually the case
got to the Supreme Court. And in 1905 the Supreme Court heard this case, Lochner v.
New York. And it's a landmark case in American constitutional history, and in fact it's a
case that gives its name to an era of American jurisprudence, that has seen to constitutional
historians to somehow typify to set the stage for almost a generation of constitutional
jurisprudence. It's a decision that would be used as a precedent in other cases, and
that would set a tone for the kinds of decision-making that the Supreme Court would engage in over
the next several decades. And it's an important case that the Supreme Court decides on the
grounds of the due process clause. Now the Fifth Amendment, so one of the original Bill
of Rights, defines the individual's rights to due process. It says that no individual
can be deprived of life, liberty, or property without due process of law. And so this is
an ancient one of these rights that comes out of the English constitutional tradition,
that is then expressly guaranteed by the Bill of Rights and is one of the most fundamental
sources of individual rights in the American tradition. No individual can be deprived of
life, liberty, or property without due process of law, and so we see this essential defense
in this case of liberty. Now the Fifth Amendment, the Bill of Rights, originally is meant to
apply to the federal government. And so the First Amendment, for instance, which protects
the basic rights of speech and religion is specifically worded so that it says Congress
shall make no law. In its original instantiation the Bill of Rights applies to the federal
government. It was meant to apply to the federal government, the states at the time often operated
in ways that would seem to us to violate the Bill of Rights but this wasn't problematic
at the time because the Bill of Rights was not meant to be applied to the states. However,
the U.S. Civil War fought over the question of slavery that ultimately resulted in the
Union victory and the preservation of the Union saw the enactment of a series of amendments
to the Constitution: the 13th, the 14th, and 15th Amendments. And these, and particularly
important for us the 14th Amendment, applied explicitly to the states, in fact this was
the point of them, was to create civil rights and equality in a way that would involve the
states, in a way that would apply to the states who were responsible not only for slavery
but also for other kinds of racial injustice. And so the 13th, 14th, and 15th Amendments
the Reconstruction amendments, the fruits the Civil War apply the basic liberties that
are guaranteed to American citizens to the state governments, and thereby restrict the
actions of the state governments. And particularly relevant is the 14th Amendment, which says
that no state meaning the individual states should deprive can deprive any individual
of life, liberty, or property without the due process of law. So the 14th Amendment
is very closely related to the Fifth Amendment and applies specifically to the states and
says no state can deprive an individual of liberty without due process of law and so
the 14th Amendment protects individuals in their liberty against their state governments.
For us, the state of Oklahoma. And in 1905 this clause of the 14th Amendment was invoked
by Joseph Lochner in his appeal to the Supreme Court. He said my right to liberty has been
violated without due process, because I have the liberty to contract. This regulation on
the number of hours that a baker can work violates my liberty of contract. It restricts
me as an individual, it violates my natural freedom, the kind of liberty that is reserved
to me, that originates in the state of nature that I naturally have, is violated, is restricted
by this law. And the Supreme Court in a 5 to 4 decision would side with him, would overturn
his conviction and would say that this state law, the state of New York violated his liberty
of contract. And the decision in which it did so was a landmark decision and it is philosophically
a very interesting one. The Supreme Court says that yes the states have certain kinds
of police powers. The states have certain kinds of legitimate authority to protect the
health, safety, and welfare of the citizens of the individual state. And in fact in this
sense the state governments, so the governments of the various states like Oklahoma, like
New York have a broader scope of action than the federal government whose powers are specifically
enumerated in the U.S. Constitution. The Supreme Court recognized that the state governments
have much broader kinds of police power, but, it says, this law which the state of New York
defended on the grounds that it protected the health of the individual and of the public,
because if bakers worked too many hours it was a danger to the public health that it
was a hazard to the general public. The Supreme Court argued that that was too flimsy, and
that it didn't rise to the level of justifying the violation of the liberty of contract.
Think about what that means. The court is saying that the individual has a wide, not
absolute, but a very wide, a very weighty, a very powerful right to form individual contracts
as he or she wishes. And in fact, the court specifically says that this law violates the
rights not only of the owner of the bakery, but of the bakers themselves. Because what
if a baker wanted to work? What if the baker said I want to work 65 hours? Yes, I've worked
60 hours, but I choose to work five more hours. I choose to work 10 more hours. I want to,
say I've got a family of ten, and I'm a father and my trade is baking. I want to work 70
hours a week. It's hard, I understand that, but it is my right to choose what to do with
those extra 10 hours of my life. And whether or not you think the case is rightly decided
in terms of constitutional law, and for the moment, whether or not you think this is right
from an objective perspective of justice, try to take seriously this argument. The baker's
potential argument, who could say, why should I not be free to choose what to do with those
next 10 hours of my life? This is what the court decides. The court sides with that argument,
and says this is a free action. The owners of the bakery don't come and make this baker
work an additional 10 hours. They offer them a certain amount of wages and the baker chooses
whether or not to work another 10 hours, and if he doesn't want to than he can presumably
take himself elsewhere. That's the logic behind this is that this is a voluntary transaction,
and the court very specifically identifies it as a voluntary set of interactions both
from the perspective of the employer, but also from the perspective of the employee.
Saying that this is the employee's right to choose whether or not they want to make this
contract, and so in a case like this, we see very clearly how the kind of contract-based
society would come to look in the context of industrializing America. And we also see
one place where this could find a footing in the American constitutional tradition,
in a strong concept of liberty as including the right of an agent to make decisions as
they wish, that kind of contractual freedom protected in the Lochner decision.