5. The Constitutional Bake-Off
Or: The Supreme Court recipe that went very, very wrong
After several posts delving into the weighty terrain of Dred Scott and birthright citizenship (topics that naturally demand a certain gravity), I think it’s time we remember that constitutional law can also be—dare I say it—fun. Not “amusement park” fun, perhaps, but “fascinating puzzle that makes you rethink everything” fun. Like a really good mystery novel, except the butler is the 14th Amendment.
So, let’s lighten up and consider a constitutional curiosity: how a small-town baker fighting a $50 fine somehow created a constitutional doctrine that would dominate American law for three decades.
It’s 1905. Theodore Roosevelt is president. Einstein just published his theory of relativity. And the Supreme Court is about to strike down a law limiting bakery workers to 60 hours per week because, apparently, the Constitution has strong opinions about overtime pay. (Spoiler alert: it doesn’t.)
The Perfect Ingredients for Constitutional Drama
Joseph Lochner, a bakery owner in Utica, is fined $50 for allowing an employee to work more than 60 hours in a week. New York had passed a law limiting bakery workers’ hours as a health and safety measure. Bakeries in the early 1900s were brutal workplaces—dusty, hot basement rooms where workers often developed “white lung disease” from inhaling flour dust, working 13-14 hour days.
Lochner decided to fight the fine. His case eventually reached the Supreme Court, which struck down the New York law as an unconstitutional infringement on the “liberty of contract” between employer and employee.
Wait, “liberty of contract”? Where exactly is that in the Constitution?
Checks Constitution
It’s ... not there.
The Secret Ingredient: Substantive Due Process
This is where our constitutional story gets fascinating. The 14th Amendment says no state shall “deprive any person of life, liberty, or property, without due process of law.” Most people understand “due process” to mean fair procedures—courts, hearings, rules of evidence, that sort of thing. Due process is what your mom invoked when she insisted on hearing “your side of the story” before punishing you for breaking the lamp.
But the Lochner Court found something more: substantive due process. They held that “liberty” included the freedom to make contracts, including employment contracts, without government interference. And that this freedom was so fundamental that even well-intentioned health regulations could be struck down if they interfered too much with this liberty.
Justice Peckham, writing for the majority, essentially said, “Baking isn’t especially dangerous. This is really about labor relations, not health.”
Justice Harlan’s dissent countered, “Shouldn’t we defer to legislative findings about workplace hazards?”
And Justice Holmes, in his famous dissent, cut to the heart of the issue: “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Translation: “The Constitution doesn’t mandate free-market capitalism, guys.” Holmes, ever the wordsmith, basically delivered the 1905 version of “I don’t remember that part of the Constitution, bro.”
Reading Between the Lines: The Economics Behind the Law
What makes Lochner so interesting isn’t just the legal reasoning, it’s the economic ideas working quietly behind the scenes. It’s like one of those cooking shows where the chef insists they’re just following grandma’s recipe, but they’re clearly adding ingredients when you’re not looking.
When you look closer at the majority opinion, you can spot certain assumptions:
Do both sides have equal power? The Court seems to assume that bakery employees could simply negotiate better working conditions if they wanted to. “Don’t like inhaling flour dust for 14 hours? Just ask for a raise or find another job!” But in 1905, with no unemployment benefits and weak unions, workers often had to take whatever jobs they could get, under whatever conditions employers set.
Do markets fix themselves? The Court appears to believe that if working conditions were truly dangerous, market forces would naturally correct them—workers would demand higher wages or refuse dangerous jobs. It’s the “invisible hand” theory of workplace safety, which works great in economics textbooks but less well in actual basement bakeries.
Does government help or harm? Perhaps most interestingly, the Court suggests that limiting work hours hurts the workers the law was supposedly protecting, by preventing them from working as much as they choose. “We’re striking down this worker protection law ... to protect workers! You’re welcome, workers!”
This is what makes Justice Holmes’ dissent so memorable. When he wrote that “the 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics,” he was suggesting the Court was reading a particular economic theory into the Constitution. Spencer was a writer who believed strongly in minimal government and letting market forces work without interference. He was basically the 19th-century equivalent of that libertarian friend who corners you at parties to talk about cryptocurrency and the gold standard.
Constitutional Questions to Ponder
Lochner raises some fascinating questions about how we interpret the Constitution—questions that are both intellectually challenging and, if you’re the kind of person who enjoys a good debate, surprisingly fun to wrestle with:
Can interpretation ever be truly neutral? When judges find rights that aren’t specifically mentioned in the Constitution (like “liberty of contract”) they have to decide which unwritten rights deserve protection and which don’t. Is there a way to make these decisions without bringing in personal views about economics or politics? Or is that like asking someone to bake a cake without using any ingredients?
Who should decide workplace safety issues? The Lochner Court chose to protect economic freedom over workplace safety regulations. They could have gone the other way. They could have decided that legislatures, not courts, should make these calls. What factors should determine who gets to decide? Is it like deciding who gets to set the thermostat in your home—the person who pays the heating bill or the person who has to wear a sweater?
How much does context matter? The words “due process” have been interpreted differently across different eras. The same phrase that once protected employers from labor regulations later protected individuals from government intrusion into their personal lives. Should the meaning of constitutional text change as society changes? Or is that like saying the rules of baseball should change based on which teams are playing?
Was “liberty of contract” a half-baked constitutional theory pulled from thin air? Or was it a carefully crafted protection of economic freedom? Either way, this bakery case has given generations of law students, lawyers, and citizens plenty to chew on.
Doctrinal sum-up:
Lochner introduced the idea that the Constitution protects substantive liberties under the Due Process Clause, even if they’re not written down.
And it established a mode of judicial review for unenumerated rights, asking “Does this law genuinely serve a legitimate police power interest (e.g., health, safety, morals)? Or is it an unjustified intrusion on individual liberty?” This mechanism became a cornerstone of modern constitutional law.
I am curious as to how these unenumerated rights changed over time-- this feels like a loophole in constitutional reasoning that is very vulnerable to politics.