My Country – Lochner & Judges and Social Legislation
Although I mentioned yesterday that Douglas quit his March 1 entry without talking about how courts would later look at regulations, he started where I finished. Justice Douglas notes that for nearly the next sixty years, legislation was declared unconstitutional under the Fourteenth Amendment. He listed:
- a ten-hour day for bakers,
- minimum wage laws,
- employment agency fees, and
- movie ticket resale values.
He notes that during this time period, Justices Holmes and Brandeis got their reputation as dissenters. They believed that states could experiment with laws and that voters would decide what seemed unwise.
It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But, in the exercise of this high power, we must be ever on our guard lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.
But as I noted yesterday, by the time Justice Douglas joined the Court, the Lochner era was ending.
Lochner v. New York involved the ten-hour work day for bakers. The Court held that the right of contract is part of the liberty protected by the due process clause. Since bakers had the ability contract and had full legal capacity, labors laws could not protect them.
Justice Holmes wrote an incredibly powerful dissent and claimed the cause was decided upon an economic theory, not Constitutional law. He argued harshly against making decisions where people had fundamentally differing views.
General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. 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.
It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.
The Lochner era became defined by requiring government neturality and a skeptical attitude towards any intervention. Additionally, it used an economic theory as its core
The End of Lochner
Although the case West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), has been deemed the end, Justice Douglas uses a ruling allowing “closed shop” laws as his rationale. But his conclusion (which may seem strange for a man who many believe to be one of the most judicial activist justices by conservatives) was that “a judge’s notice as to the wisdom of a law was no measure of its constitutionality.” But the labels as activists stuck with both Justice Brandeis and Douglas.
How, though, should we look at judicial activism? Should courts go out of their way to find laws unconstitutional or should they trust legislatures? Justice Douglas used morality and the facts of the cases to determine “right” more than Constitutionality. The Lochner Court used economic theory more than Constitutionality.
As I continue through the Almanac and the careers of Justices Brandeis and Douglas, these questions will return. Eventually, the right of privacy, which became both of these jurists principle concept, will need examination. But at this point, Douglas wants to note that the Commerce Clause jurisprudence shifted from a voice not allowing states to intervene with a lack of judicial activism that did not question why legislators imposed a certain protection.
- Why do all of Trump’s associates hide their connections to Russia if they are benign? Probably because they are not benign.
- Jeff Sessions’ denials would generally lead Jeff Sessions to demand to Jeff Sessions recuse Jeff Sessions.
- Hopefully, California will keep the EPA alive.
- Bevin would love to hear himself compared to Trump. We’ve been dealing with Bevin for almost two years. It has been a nice welcome to Kentucky…
- Undocumented immigrants pay millions in income, property, and sales taxes. They would pay more if brought into the system. But I’m sure that does not matter when they are not white.
- I suppose when you learn the FBI is investigating the incoming administration, you do what you can to hide that information from the incoming administration. Cannot believe this is where we are.
- It was nearly impossible to get a job in environmental law before. These cuts do not make any sense in an age where our environment slowly crumbles.
- What does the increasing stock market mean? Inflation!
- Jordan Weissmann hits every perfect reason why the Republican plan for personal responsibility will fail. No one understands savings. No one has enough money to save. The mutual fund companies like Fidelity nickel and dime us with their rates for doing nothing. All that will happen will be a huge amount of poverty that will need to be paid for when all of these people without retirement plans need to retire. The last pension holders retire in the next ten years. The next group have been all on their own and count on a minuscule amount of Social Security and Medicare.
The first clip from the new DuckTales show.
The animation style has a nice roughness and angularity to it reminescent of modern cartooning. The voice acting is a bit over-the-top, but again, that seems to be a thread in today’s cartoons. However, it does seem like the episodes may have a broader storyline and not done-in-one episodes like the original. Though I love serial storytelling, I do miss the days of a good story told in 20 minutes. Hopefully, it connects the two like Scooby Doo: Mystery Incorporated.
One Sentence Story
How did the dog hair get on the counter?