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
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.