Against Progressivism and the New Deal
One of the most controversial cases presented to the court of Chief Justice Fuller was the 1905 case Lochner v. New York, where Joseph Lochner, owner of a bakery, violated a New York state law prohibiting the employment of bakers for more than sixty hours per week. When Lochner was fine for breaking the law, he appealed the conviction, and the case eventually found its way to the Supreme Court. In a 5-4 decision, the court ultimately ruled in favor of Lochner and struck own the offending law on the grounds that since baking was not a particularly dangerous profession, the law violated "the right of contract between the employer and employees."(1) Once again, the 14th Amendment's Due Process" clause found itself extended beyond basic civil rights. The decision handed down in Lochner would define an era of court decisions: Lochner set a precedent against labor regulation across the country, and would be used to fight almost all public policies designed to protect workers.(2) Lochner's influence persisted well into the New Deal era, as many of FDR's policies were initially struck down by the Court in the name of "liberty of contract" and small government. Not until 1937 did SCOTUS acknowledge in West Coast Hotel v. Parish that the freedom of contract was "a qualified, and not an absolute right" under the 14th Amendment, and Lochner was consigned to infamy just as Dredd Scott and Plessy were.(3)Lochner and the First Amendment
As the new century ushered in new ideas and new tensions, the right of freedom of speech came under fire as well. In 1912, feminists Margaret Sanger was arrested for giving a lecture on birth control; in 1919, Socialist Charles Schenck was arrested for distributing anti-war material; and in many cases, people were arrested simply membership in "radical" groups.(4) Conflict over freedom of speech was ignited mostly by WWI and the Espionage Act, which called for the arrest of those who spoke against the war effort. The case of Schenck, who distributed leaflets denouncing the draft, was taken to the Supreme Court, where the court made a unanimous decision of his guilt. Justice Oliver Wendell Holmes, who dissented in Lochner, concurred with the majority and created the idea of "clear and present danger," as things like the act of "shouting fire in a crowded theater" posed a danger and thus could not be protected by the First.(5) Whether or not Schenck's actions actually posed such a threat to national security is debatable, but free speech was dealt a significant blow regardless. While cases like Schenck are not usually categorized as part of the Lochner era, scholars have begun to find links between First Amendment decisions and the logic of Lochner. Elizabeth Sepper, Associate Professor at Washington University, explains that cases reminiscent of Lochner paint rights like freedom of religion as part of the ability to contract, and that in many cases, forms of free speech are linked directly to private economic interest.(6) The logic behind the Schenck decision would seem to fall more with the former.
The influence and infamy of the Lochner case extends well beyond private enterprise, and is often invoked as a warning today. The precedent of the case itself may be gone, but its status as constitutional bogeyman endures nontheless.
(2) http://www.msnbc.com/rachel-maddow-show/the-lochner-litmus-test
(3) http://www.pbs.org/wnet/supremecourt/capitalism/landmark_westcoast.html
(4) https://www.aclu.org/freedom-expression-0
(5) http://www.historyisaweapon.com/defcon1/zinnwarhea14.html
(6) http://columbialawreview.org/free-exercise-lochnerism/
The link between the contract of Lochner and the First Amendment, although unintuitive at first, is really interesting. Since the Lochner case was effectively overturned in doctrine by West Coast Hotel v Parish, what kind of changes to religious freedoms would be seen? Did the Supreme Court begin to adhere to the idea of liberty of contract in religion, but not in private enterprise?
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