Singular importance of the principled dissenting voice

My favourite case: Attorney General Máire Whelan

Baking bread at the turn of the 20th century in New York. photograph: buyenlarge/getty images

Baking bread at the turn of the 20th century in New York. photograph: buyenlarge/getty images


What is your favourite case?
My favourite case is the landmark US Supreme Court case of Lochner v New York (1905), where a state law restricting the hours employees could work in the baking industry was found to be unconstitutional.

Joseph Lochner, a German immigrant to the US, owned Lochner’s Home Bakery in Utica. In 1895, the State of New York passed the Bakeshop Act to regulate conditions and working hours in the state’s bakeries. The Act was championed by Henry Weismann, a baker and international secretary of the Journeymen Bakers’ Union of America, in response to the unhealthy working environment in which his members toiled, often for more than 100 hours per week.

Lochner had worked for eight years as a baker before opening his own shop, and his bakery was unlike many at the time. A surviving photo shows a neat two-storey house with the bread displayed invitingly in two large windows at the front – a justifiable source of pride to its owner. But Lochner demanded long hours of his employees, and he found himself on the wrong end of the Bakeshop Act when one of his employees, Aman Schmitter, worked over 60 hours in one week.

This was Lochner’s second infraction, and determined to challenge the validity of the law; he offered no defence at trial. He was fined $50, with 50 days in default of payment, and immediately appealed, first to the appellate division of the Supreme Court and then to the Court of Appeals. Losing at each stage, he ended up before the United States Supreme Court, arguing that the Bakeshop Act was an unwarranted interference with his constitutionally guaranteed liberty to contract. He argued, moreover, that the modern bakeshop posed no threat to the health of the bakers.

The Supreme Court, in a 5-4 decision, agreed. Writing for the majority, Chief Justice Rufus Peckham said it was impossible for them to shut their eyes to the fact that the law, in their view, bore no relation to the purported aim of protecting the health and welfare of employees. In reality, it was an attempt by the state to regulate the ability of master and employee to contract for the supply of labour. Justice Harlan, joined by Justices White and Day, dissented. It was at least arguable, in their view, that the law was a public health measure, and in those circumstances the federal courts should defer to legislature’s determination that such a measure was warranted.

The case concluded, and Mr Lochner returned to his bakeshop. To fight his cause, he had chosen a fellow German who came to New York via San Francisco, making his way as a journeyman baker before studying law and passing the Bar exams. In an ironic twist, the man who argued so compellingly before the Supreme Court for Mr Lochner’s liberty to contract was the same Henry Weismann who, 10 years before, had secured passage of the Bakeshop Act as the leader of the Journeymen Bakers’ Union.

Why is this your favourite case?
A solitary dissent, just 617 words long, was filed by Justice Oliver Wendell Holmes. It became the most celebrated dissent in American jurisprudence. His central idea was that the constitution is not intended to embody a particular economic theory. The states should be free, by their laws, to regulate economic activity within their borders as they saw fit:

“I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, 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.”

His dissent is important because it was the rallying cry against judicial activism based on a particular understanding of the market. It highlighted the extraordinary and undemocratic reservoir of power that rested in the hands of the US Supreme Court in the early 1900s and the way the judiciary had opposed the will of the legislative majority by upholding a laissez-faire understanding of freedom of contract that had no basis in the constitution.

Holmes’s dissent evokes for me the singular importance of the principled dissenting voice. Well-reasoned and restrained, it opens the mind to new understandings and insights, and offers a springboard to revision and reform that is revolutionary in its prospects, stretching the possibilities of the diligent lawyer’s vision even unto infinity.

Is the case still relevant?
In 1937, the Supreme Court brought the Lochner era to a close. Holmes had died two years earlier, but his influence was growing and would continue to grow until his deferential and democratic view became the dominant accepted view.

His legacy is the subject of much debate, but in Lochner, he sowed the seed which would lead to the destruction of the court’s stubborn refusal to place contractual freedom in the context of the states’ right to protect labour against capital – the vulnerable and the unequal – and to regulate aspects of economic activity.

His dissent resounds to the present day. Last month in MacDonncha v Minister for Education and Skills, Mr Justice Hogan in the High Court struck a strong Holmesian note in stressing, at the outset of his judgment, that the court does not review or question economic policy. “For even if the judicial branch possessed – which it does not – the skill and understanding of a Keynes or a von Hayek or a Friedman or a Krugman in matters of general macroeconomic theory, this would not alter matters in the slightest.”

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