The 1905 Supreme Court case Lochner v. New York has long been a lightning rod for the claim that unelected judges have no place in our Constitutional system striking down laws purporting to ensure public health and safety. The periled precedent played its part this week as UT Law student Noah Horwitz dutifully deployed it against recently nominated Justice Don Willett of the Texas Supreme Court, in an opinion piece entitled, “Willett’s nomination has capacity to resurrect an ugly part of the past.”

Horwitz’s familiar refrain is that Lochner represented “a dark period of jurisprudence wherein economic regulations — including the minimum wage and the prohibition of child labor — were deemed unconstitutional on the basis of economic liberty.” Horwitz invokes the terror of Lochner to color what he believes Justice Willett’s concurrence in the 2015 Texas Supreme Court case Patel v. Texas Dept. of Licensing portends. Needless to say, things don’t look good.

What Horwitz fails to explain is why, specifically, either case was wrongly decided. Instead, we are left with only the suggestion that Lochner and Patel can be read as nothing more than outright rejections of the government’s power to promote health and safety.

Nothing could be further from the truth.

To be sure, the Capitol, not this Court, is the center of policymaking gravity, and judges are lousy second-guessers of the other branches’ economic judgments. Lawmakers’ policy-setting power is unrivaled—but it is not unlimited.

– Patel v. Texas Dept. of Licensing (2015) (Willett, J., concurring)

Neither the majority in Lochner nor the majority in Patel sought to substitute their policy preferences for those of a legislature. And neither Justice Willett nor anyone else seriously contends the government cannot regulate economic activity to protect the public—and for good reason! But that simply begs the question. In the words of the Lochner Court, “the question would still remain: is [the law] within the police power of the State?, and that question must be answered by the court.”

The very reason Lochner and Patel came before their respective courts was to resolve whether the regulations at issue constituted legitimate uses of the states’ long-recognized police power to ensure health and safety. From the caricatures of Lochner and Patel, one would be forgiven for not knowing both decisions fully concede the existence and importance of such a power.

How, then, did the courts in these cases arrive at the conclusion that striking down public-health-driven economic regulations was appropriate? The answer lies precisely in the fact that judges don’t decide policy. They decide particular cases and controversies.

In other words, facts matter. Context matters.

When and how far such power may be legitimately exercised with regard to these subjects must be left for determination to each case as it arises.

– Allgeyer v. Louisiana, 165 U.S. 578 (1897)

The Bakeshop Act at issue in Lochner limited the number of hours a bakeshop employee was permitted to work to 10 per day. There were no exceptions. Not even an employee herself could voluntarily arrange to work additional hours. If a single mother needed to earn additional income for a family emergency, too bad. The prohibition was absolute.

As a threshold matter, the Court recognized such a restriction clearly interferes with an individual’s ownership over their own labor and ultimately the freedom of contract. At the time, such a proposition was self-evident to the Court. Our entire system of government, indeed the very foundation of American society, is built upon the indivisible ideals of equality and consent. Equality and consent require that individuals be free to sell or not sell their own labor, and therefore to enter or not into contracts to sell such labor. Any law that absolutely prohibits an individual’s sale of some form or quantity of their labor raises questions about the law’s legitimacy.

The right to follow any of the common occupations of life is an inalienable right, it was formulated as such under the phrase ‘pursuit of happiness’ in the declaration of independence, which commenced with the fundamental proposition that ‘all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.’

This right is a large ingredient in the civil liberty of the citizen.

– Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746 (1884) (Bradley, J., concurring)

The Court thus explained that the “right to purchase or to sell labor is part of the liberty protected by” the Fourteenth Amendment’s Due Process Clause, which applies to laws promulgated by the states. But this is not where the judicial inquiry ends, it is where it begins. The Court made abundantly clear that there are indeed

certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without . . . any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public.

This raises a difficult dilemma: when is the legislature justified in using its universally accepted power to promote safety, health, morals, and general welfare in a way that affects a constitutionally protected liberty interest? It cannot be that the legislature’s invocation of the police power renders constitutional protections nugatory. Neither can it be that an individual’s liberty interest sterilizes the legislature’s ability to legislate for the common good.

In this light, the Patel majority wrote that

[c]ourts must extend great deference to legislative enactments, apply a strong presumption in favor of their validity, and maintain a high bar for declaring any of them in violation of the Constitution. But judicial deference is necessarily constrained where constitutional protections are implicated.

Whereas Lochner involved a prohibition on an employee’s ability to determine their own work hours, Patel involved a Texas licensing law regulating the practice of eyebrow threading. Eyebrow threading, the majority described, “involves the removal of eyebrow hair and shaping of eyebrows with cotton thread.”

When the Texas legislature categorized eyebrow threading as cosmetology, threaders were made subject to the state’s cosmetology licensing laws and required to complete 750 hours of instruction and pass a state-mandated test.

It merits repeating: Judicial duty does not include second-guessing everyday policy choices, however improvident. The question for judges is not whether a law is sensible but whether it is constitutional. Does state ‘police power’—the inherent authority to enact general-welfare legislation—ever go too far?

– Patel v. Texas Dept. of Licensing (Willett, J., concurring)

As in Lochner, the issue in Patel was not that the legislature dared to regulate economic activity. The majority, in fact, was quick to point out that the Threaders did “not contend that the State’s licensing of the commercial practice of cosmetology is not rationally related to a legitimate governmental interest.” Instead, their claim was that, as applied to them, the training-hours requirement had “an arbitrary and unduly burdensome effect . . . because the 750-hour requirement ha[d] no rational connection to reasonable safety and sanitation.”

The Patel Court noted that “of the 750 hours of required instruction for an esthetician license, 40 are required to be directly devoted to sanitation, safety, and first aid.” That is 5.3 percent. In order to shape eyebrows, the Threaders had to undergo 750 hours of training—expending thousands of dollars to do so—less than 6 percent of which was devoted to sanitation and safety, the proffered justification for the law. Even “[t]he State concede[d] that over 40% of the required hours [were] unrelated” to the Threaders’ work.

In other words, the problem with the regulation in Patel was that the law erected barriers to exercising a constitutionally protected liberty while failing to promote health and safety. This was also the case in Lochner, where the Supreme Court held there was “no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker.”

Why? Because there was “no contention that bakers as a class are not equal in intelligence and capacity” or that bakers were unable “assert their rights and care for themselves without the protecting arm of the State.” At bottom, the Supreme Court could find “no reasonable foundation” for holding the Bakeshop Act “necessary or appropriate” to safeguarding the “public health or the health of the individuals” in the bakeshops.

Had the Lochner Court seen evidence to support the Act’s purported public health goals, it would have had no problem upholding the law. As the Court itself pointed out, “[t]his court has recognized the existence and upheld the exercise of the police powers of the States in many cases which might fairly be considered as border ones.” Indeed, the Court noted that, just seven years earlier, in Holden v. Hardy, it upheld an

act limiting the employment of workmen in all underground mines or workings to eight hours per day ‘except in cases of emergency, where life or property is in imminent danger.’

The law at issue in Holden “also limited the hours of labor in smelting and other institutions for the reduction or refining of ores or metals to eight hours per day.” Yet the Court upheld that law regulating work hours as “a valid exercise of the police powers of the State.”

And only five years before Lochner, in Petit v. Minnesota, the Court “upheld as a proper exercise of the police power” a state law disallowing barber shops to open on Sundays. That is quite a forgiving view of the scope of the police power in the sphere of economic regulation by the same Court that decided Lochner.

All that Lochner and Justice Willett’s Patel concurrence stand for, then, is the proposition that a health and safety law that burdens an individual’s liberty must be justified by something more than the legislature’s pinky promise. The Lochner Court framed the proposition as follows:

The mere assertion that the subject relates . . . to the public health does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate.

Or, as Justice Willett characterized it in Patel: “Laws that impinge your constitutionally protected right to earn an honest living must not be preposterous.” He later reasoned, “[i]t is hard to imagine anything more irrational than forcing people to spend thousands of dollars and hundreds of hours on classes that teach everything they don’t do but nothing they actually do. Not one of the 750 required hours of cosmetology covers eyebrow threading.”

At the risk of breaking the drum: nothing discussed so far suggests states should ignore their duty to protect the public. Instead, the proposition is merely that, where constitutionally protected rights are at stake, courts must test whether the legislature is actually exercising a legitimate power. Justice Willett summarizes it as follows:

Politicians decide if laws pass, but courts decide if those laws pass muster. Cases stretching back centuries treat economic liberty as constitutionally protected—we crossed that Rubicon long ago—and there is a fateful difference between active judges who defend rights and activist judges who concoct rights. If judicial review means anything, it is that judicial restraint does not allow everything. The rational-basis bar may be low, but it is not subterranean.

To put a finer point on it: judges must be allowed to judge. Such a view does not mean all economic laws come tumbling down. And it is a common misconception to say that child labor laws were struck down under the Lochner rubric.

As Professor David Bernstein has written,

In the middle of the so-called Lochner era, the Supreme Court upheld state regulation of child labor by a 9-0 vote (Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913)). I’ve blogged before that I’m not aware of ANY court in any American jurisdiction ever holding that child labor laws violate a constitutional right to economic freedom or ‘liberty of contract’, and no one has written in to correct me (for examples of state courts upholding child labor laws within a few years of the Lochner decision, see Ex Parte Weber, 149 Cal. 392 (1906); United Steel Co. v. Yedinak, 87 N.E. 229 (Ind. 1909); Bryan v. Skillman Hardware Co., 76 N.J. 45 (1908); People v. Taylor, 192 N.Y. 398 (1908); State v. Shorey, 86 P. 881 (Ore. 1906)).

The two Lochner-era child labor law cases associated with this misconception are Hammer v. Daggenhart (1918) and Bailey v. Drexel Furniture Co. (1922) (also known as the Child Labor Tax Case). Both cases did strike down federal laws regulating child labor. But Hammer did so under the Commerce Clause and Bailey did so under Congress’s Taxing Power. Neither mentioned economic liberty. Neither mentioned freedom of contract. And neither mentioned Lochner.

While misguided reporting on Lochner is commonplace, the good intentions behind people’s concerns with what they hear about the case are fair. We should all favor states having the power to ensure public health and safety, and we should all favor ensuring the rights of vulnerable populations.

But what most people misunderstand about the the kind of regulations at issue in both Lochner and Patel is the particularly deleterious effect they have on low-income, often immigrant, populations—all to the benefit of deeply entrenched business interests.

It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives. We are justified in saying so when, from the character of the law and the subject upon which it legislates, it is apparent that the public health or welfare bears but the most remote relation to the law.

– Lochner v. New York (1905)

The effect of the Bakeshop Act at issue in Lochner was to level the playing field between larger bakery chain stores and the mom-and-pop shops run by immigrant families. Unsurprisingly, Joseph Lochner was a Bavarian immigrant. And his attorney at the Supreme Court was a former union worker, who had lobbied to pass the very Bakeshop Act Lochner challenged and had later come to regret that decision.

Ash Patel, who challenged Texas’s draconian licensing requirements, was an Indian immigrant, who came to the United States “to pursue his American Dream of opening up an eyebrow threading salon.” Confronted by excessive and arbitrary regulations, “Ash shut down his successful business to avoid paying $2,000 in fines.” To the satisfaction of existing Texas salons, to be sure.

This is typical. Professor Bernstein has written that “licensing laws that restrict occupational freedom are meant to preserve the advantages of incumbents to a profession—disproportionately entrenched native-born whites—at the expense of newcomers, often immigrants and people of color.” Such laws affect vulnerable groups by restricting access to particular goods and services, raising prices for low-income consumers, and erecting barriers to economic opportunity.

. . .nonsensical regulations inflict multiple burdens—on consumers (who pay more for goods and services, or try to do the work themselves), on would-be entrepreneurs (who find market entry formidable, if not impossible), on lower-income workers (who can’t break into entry-level trades), and on the wider public (who endure crimped economic growth while enjoying no tangible benefit whatsoever).

– Patel v. Texas Dept. of Licensing (2015) (Willett, J., concurring)

Alas, the Lochner and Patel critics regularly ignore the improper motives that so often lurk behind economic regulations. As we have taken pains to explain in previous posts, among the Dangers of Democracy is the reality that special-interests, not the common good, frequently drive what appear to be public health and safety measures but turn out to be pure good-ole-boy favoritism. There is nothing unreasonable about the view that judges should guard our constitutional rights against such malevolent majoritarianism.

This is no reason to suggest legislatures cannot or should not regulate economic activity to protect the public—as neither Lochner nor Justice Willett’s Patel concurrence did. That is an important aspect of the police power that Horwitz and others are right to draw attention to.

But it is good reason not to ask judges to surrender our constitutionally protected rights to the “destructive potential of factions.”

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