Oliver Wendell Holmes, Jr.: Dissent in Lochner v. New York

Explanation and Analysis of the Document

After Dred Scott v. Sandford (1857), in which the Supreme Court upheld the institution of slavery, Lochner v. New York (1905) is considered one of the Court's most infamous decisions. This high-water mark of laissez-faire capitalism represented the beginning of an era that elevated the freedom to contract into a constitutional mandate, an era that lasted until President Franklin D. Roosevelt's New Deal.

Lochner concerned a New York State law limiting bakers to a sixty-hour workweek, with no more than ten hours to be worked in a given day. Wage and hour laws have traditionally fallen under the rubric of police powers, which grant states the ability to enact legislation out of concern for citizens' health and welfare. Joseph Lochner, a bakery owner in Utica, New York, challenged a fine imposed on him for overworking an employee under New York's Bakeshop Act, arguing that the legislation violated his due process rights, specifically the right to contract, as guaranteed by the Fourteenth Amendment. Following the 1868 ratification of the Fourteenth Amendment, which served to overrule Dred Scott, the Court had adhered to an interpretation of that amendment's due process clause that made it something more than a procedural protection; instead, due process was said, in this context, to be a substantive limitation on the government's control of individuals. Initially, a bare majority of the justices agreed with Lochner's argument, and Justice John Marshall Harlan drafted an opinion for the Court. Before the decision was announced, however, one of the justices changed his vote, and the majority opinion was rewritten by Justice Rufus Peckham, a strong advocate of what he viewed as venerable “sacred rights of property and the individual right of contract.” Thus, what had been enacted as a health law was styled, in Lochner, an unconstitutional interference in the right of employer and employee—despite their unequal status—to make labor contracts.

Holmes's opposing opinion, only two paragraphs long, is arguably the most famous dissent ever written. Filled with quotable epigrams, it is short on conventional case citation and legal argument. Richard Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit and a proponent of the conservative Chicago economic school of legal theory, sums up Holmes's Lochner dissent—which he terms not “a good judicial opinion”—this way: “It is merely the greatest judicial opinion of the last hundred years. To judge it by [the usual] standards is to miss the point. It is a rhetorical masterpiece” (qtd. in Schwartz, p. 197).

Besides being revolutionary in form, Holmes's dissent argues for a radical departure from the customary view that cases are to be decided according to legal precepts and facts deemed objective by the Court. Yet justices, Holmes warns, should not substitute their judgment for that of legislatures. The Lochner Court struck down the Bakeshop Act because it did not conform to the majority's economic theories, but as Holmes mordantly remarks, “The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics.” The question of whether or not a given law is constitutional, he asserts, should instead be decided according to more subjective, immediate criteria based on reasonableness. Instead of substituting their own views for those of elected lawmakers, judges should be obliged merely to consider whether legislatures could reasonably have enacted the legislation being challenged. To do otherwise in a case like Lochner is to provide legal sanction for social Darwinism, a theory far removed from the practical applications intended by the framers of the Fourteenth Amendment.

For the next thirty-five years, however, the Court did exactly that, embracing the doctrine of substantive due process and employing it repeatedly to strike down economic and labor regulations. Judicial restraint gave way to judicial activism, with majorities of justices striking down even legislation aimed at social advancement when it did not conform to their notions of laws appropriate to the promotion of free enterprise. Then, in 1937, one justice changed his vote in West Coast Hotel Co. v. Parrish, and the Supreme Court finally upheld a minimum-wage law for women. Called “the switch in time that saved nine,” this single vote change—which occurred just two months after President Roosevelt proposed to pack the Court to promote New Deal legislation—represented a dramatic Court reorientation that changed the course of history. The Court has never expressly overruled Lochner, but henceforth due process became more of a tool for advancing rights legislation rather than a bulwark for economic laissez-faire.