What Amy Coney Barrett Got Wrong About Lochner

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According to the conventional wisdom, Supreme Court Justice Amy Coney Barrett successfully bobbed and weaved her way through her Senate confirmation hearings without really sharing any of her substantive legal views. But Barrett did disclose one big thing: She thinks the Supreme Court got it wrong when it protected the constitutional right to economic liberty in the famous 1905 case Lochner v. New York.

On October 14, Sen. Josh Hawley (R–Mo.) asked Barrett to “talk just a little bit about how a court could substitute its own views on economic policy for those of a law-enacting body, of a legislature or of Congress.”

Barrett replied that “in the Lochner era” and “in Lochner itself,” the Supreme Court “was standing in the way of reforms for workers that legislatures were enacting.” Say a federal judge “had a preference for free trade, or if one had a preference for having no minimum wage,” she said. “To hold such a statute that did the opposite of your policy preference unconstitutional because it didn’t comport with your idea of the best economic policy would be to thwart the will of the people without warrant in the Constitution.”

Is that what happened in Lochner? Did the Supreme Court “thwart the will of the people without warrant in the Constitution”?

The Court did thwart the New York lawmakers who wanted to limit the number of hours that bakers were allowed to work each day and each week. But since “clean and wholesome bread does not depend on whether the baker works but ten hours per day or only sixty hours a week,” observed the majority opinion by Justice Rufus Peckham, the rule was an illegitimate exercise of the state’s regulatory powers.

Unlike the rest of the Bakeshop Act, which properly and legitimately regulated “washrooms and closets,” the height of ceilings, floor conditions, and “drainage, plumbing, and painting,” Peckham wrote, the limit on hours involved “neither the safety, the morals, nor the welfare, of the public” and was thus “not, within any fair meaning of the term, a health law.” He concluded that the provision also violated liberty of contract, a constitutional right secured against state infringement by the 14th Amendment.

Peckham was correct that the original meaning of the 14th Amendment encompasses the right to economic liberty. As Rep. John Bingham (R–Ohio), the principal author of the amendment’s first section, told the House of Representatives, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” include “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.”

Even opponents of the 14th Amendment’s ratification said as much at the time, which is also good evidence of the amendment’s original public meaning. In an 1866 House speech, for example, Rep. Andrew Jackson Rogers (D–N.J.) complained that “all the rights we have under the laws of the country are embraced under the definition of privileges and immunities.” He noted that “the right to contract is a privilege,” adding, “I hold if that ever becomes a part of the fundamental law of the land, it will prevent any state from refusing to allow anything to anybody embraced under this term of ‘privileges and immunities.'”

The 14th Amendment did become the law of the land, as the Court recognized in Lochner. Justice Barrett should revisit her views on this wrongly maligned case.

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