Dissent - Harlan

• Argued there was a reasonable basis for the legislation, but the court is having none of it.

• SCt had recently sustained an 8-hour law for miners (Holden v. Hardy), but courts had traditionally regarded mining as ultrahazardous. Miners were an exception to the rule that adults were presumed competent to take care of themselves in the marketplace.

• Women were also an exception. In Adkins v. Children’s Hospital, the majority (and not Holmes) was the advocate of women’s equality.

• Harlan actually had a lot in common with Lochner majority.

• He agreed that liberty of contract is protected by USC, and that the issue is whether the state had adequately justified its limitation of that liberty.

• Harlan simply thought that the state had met its burden of proving the necessity of the limitation.

Dissent - Holmes

• Took a radically different approach.

• Claimed that “a constitution is not intended to embody a particular economic theory.”

• It was not clear from Holmes’ dissent whether any infringement of economic liberty, per se, would violate USC in his view.

• Courts should simply defer to the legislature’s expertise, unless (but this is a big unless) “it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” It is not clear whether Holmes was interested in doing anything with this escape hatch.

Forming an opinion of Lochner

• Depends on whether we think that redistribution is a legitimate governmental purpose. There are different conceptions of contract; property rights can be defined in many different ways.

• Inequality is a natural result of private property: In fact, maximum hours laws tended to redistribute wages to workers, who had to be paid a subsistence wage no matter how long they worked. A reduction of hours thus often meant a de facto increase in the hourly wage. SCt thought that “it is impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights.” (Coppage v. Kansas).

• Private property and redistribution are not mutually exclusive. It is certainly logically possible to think that property and contract produce great social wealth and so should be protected, but that those who gain from these institutions ought to share their gains with those who lose (and who would have done better under different economic arrangements).

Lochner Era - most significant judicial interventions in American history

• With possible exception of Dred Scott.

• One explanation as to why there has been no organized working-class political party in U.S. (as there has been in most other advanced industrial countries) is that U.S. has had a stronger judiciary; judicial intervention made collective political action futile here.

• Law was abandoned as instrument of social transformation, and instead labor attempted to win gains through collective bargaining on an industry-by-industry basis, with gains predictably concentrated among the most skilled workers in key, bottleneck industries such as coal, steel, and autos.

• Predictable consequence was a smaller and smaller proportion of labor was organized, and an increasing lack of sympathy for labor movement, because that movement was generally understood to benefit only a privileged few.

• What you think of Lochner ultimately depends on what you think of the marginalization of labor in American politics.