Lochner v. New York is widely viewed as one of the worst Supreme Court decisions in American history. It is taught in law schools, alongside decisions upholding segregation and permitting Japanese detention camps, in order to instruct budding lawyers on how judges should not behave. Even Robert Bork, the failed, right-wing Supreme Court nominee who claimed women “aren’t discriminated against anymore”, called Lochner an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”
Lochner fabricated a so-called right to contract in order to strike down a New York law preventing bakery owners from overworking bakers, but its rationale has implications for any law intended to shield workers from exploitation. In essence, Lochner established that any law that limits any contract between an employer and an employee is constitutionally suspect. If desperation forces someone to agree to work 18 hours a day, seven days a week, for a dollar a day in a factory filled with toxic air, then courts must treat that law with heavy skepticism. Not every workplace law was struck down during the so-called Lochner Era — the justices of that era sometimes valued sexism more than they valued exploiting workers, for example — but Lochner placed any law benefiting workers on constitutionally weak footing. Needless to say, the “right to contract” it invented appears nowhere in the Constitution.
Nevertheless, Sen. Rand Paul (R-KY) took several minutes out of his lengthy talking filibuster yesterday to praise this “abomination” of a decision on the Senate floor:
You get to the Lochner case. The Lochner case is in 1905. The majority rules 5-4 that the right to make a contract is part of your due process. Someone cannot deprive you of determining how long your working hours are without due process. So President Obama’s a big opponent to this, but I would ask him — among the other things I’m asking him today — to rethink the Lochner case. . . . I think it’s a wonderful decision.
Although its not entirely clear what exploiting workers has to do with drone strikes, the primary subject of Paul’s filibuster, the senator seemed to think that Lochner was relevant because that case claimed that its fabricated right to contract flowed from the Constitution’s “due process” guarantee.
Paul’s speech also includes a somewhat rambling attempt to claim that Lochner helped “end Jim Crow,” a claim that would cause anyone with even a rudimentary understanding of civil rights history to scratch their head. Lochner was decided in 1905, and, while Paul is correct that the Lochner Era justices very occasionally struck down discriminatory laws, Jim Crow was still very much alive when Lochner was overruled in the 1930s. The Supreme Court decision that did the most to eradicate Jim Crow — Brown v. Board of Education — rested on the Constitution’s guarantee that no person shall be denied the “the equal protection of the laws,” not on some fabricated right to contract. And Brown alone was insufficient to overcome the campaign of “massive resistance” segregationists mounted in defense of Jim Crow.
What finally killed American apartheid was big, centralized government of the kind Paul and his fellow tea partiers love to hate. The Civil Rights Act of 1964 required business owners to contract with minorities — something that would undoubtedly been unconstitutional under Lochner. And, of course, the same Voting Rights Act that is now endangered in the Supreme Court tore down Jim Crown voter exclusions. Sen. Paul, for his part, has incorrectly suggested that the Civil Rights Act violates the Constitution.
Paul’s endorsement of Lochner reflects a disturbing evolution in Tea Party thought. For much of Obama’s first term, Tea Party conservatives rallied behind “tentherism,” the false belief that most of what the federal government does is unconstitutional. Unlike tentherism, which applies only to federal laws, Lochnerism prevents both the federal government and the states from enacting necessary legislation. Although a handful of the most radical federal judges openly embrace Lochnerism or similar reasoning, this particularly virulent misreading of the Constitution was largely absent from elected officials’ rhetoric until Paul’s speech yesterday.
(HT: Josh Blackman)