In its recent decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, the Supreme Court denounced judicial resort to the doctrine of substantive due process to pour the foundation for the fundamental right to access contraceptives, abortion and same-sex marriage. Since then, the “reading public,” to borrow from James Madison, has expressed deep interest in the origins of the doctrine.
A search for the early development of substantive due process will reveal the Court’s landmark ruling in 1905, in Lochner v. New York. In Lochner, the Court declared the existence of the “liberty of contract” doctrine, a fundamental right protected by the due process clause of the 14th Amendment. The Court’s pronouncement of “liberty of contract,” derived from substantive due process, undercut at the turn of the 20th century, the authority of states to exercise their police power to promote the health, morals, welfare and safety of its residents.
Lochner was not the first case in which the Court had employed substantive due process, but it represented a historic moment for its influence on constitutional law for the next three decades. The Court had first resorted to the use of substantive due process in 1856, but Lochner cemented the practice.
Joseph Lochner had been convicted for violating a New York law by requiring a worker in his bakery to work more than 60 hours in one week. The statute prohibited bakery employees from working more than 10 hours per day or 60 hours per week. Lochner challenged the statute as an unconstitutional exercise of the state’s police power to regulate the health, morals, welfare and safety of the people.
Lochner v. New York proved to be a difficult case for the Court. Initially, the justices voted by a bare majority to uphold the law. Justice John Marshall Harlan was assigned to draft the opinion. Justice Rufus Peckham wrote a strong dissent. Before the Court finalized its opinion, one of the Justices — likely Chief Justice Melvin Fuller — switched his vote. Peckham’s dissent became the opinion of the Court and Harlan’s opinion became a dissent. Fuller concluded that the maximum working hour law was an exercise in “featherbedding,” that is, “paternalistic and depriving both the worker and the employer of fundamental liberties.” It has been suggested that Justice Joseph McKenna, whose father owned a bakery, persuaded Fuller to switch his vote on the ground that bakeries posed no health threats, which meant that the law’s premise was a sham.
Justice Peckham, who viewed state regulation of the economy as an exercise in socialism, agreed that employment in bakeries represented no danger or health threat, wrote for a 5-4 majority, that the statute unconstitutionally interfered with “right of contract between the employer and the employee.” The liberty protected by the 14th Amendment, he said, included the right to purchase and sell labor. Thus, any statute interfering with the right would be invalid “unless there are circumstances which exclude that right.”
A valid circumstance would be reflected in a valid exercise of the police power but the statute, in Peckham’s view, was devoid of any health concern and thus represented little more than a labor regulation. The majority’s opinion ignored the wealth of evidence collected from health professionals by a legislative committee that demonstrated numerous diseases and other health threats to workers who toiled in bakeries beyond the limits imposed by the legislature.
In essence, the Court substituted its own medical “expertise” for the testimony of health professionals, which led critics of the opinion to accuse the Court of behaving like a super-legislature. In time, this practice earned the opprobrium of “Lochnerizing.” The Court’s infusion of “substance” — its own sense of justice and fairness into procedural aspects of due process of law — when deciding whether the state could regulate business and labor, opened the floodgates to judicial activism. The Lochner brand — conservative judicial activism — would govern for the next three decades until the Court’s composition changed with appointments made by President Franklin D. Roosevelt.
As the “reading public” knows, the introduction of substantive due process to assist and defend conservative versions of economic liberties would, in time, give way to judicial defense of more progressive or liberal values emphasizing personal liberties. This practice would support, for example, judicial rulings that upheld the fundamental right to contraceptive devices, reproductive decisions and same-sex marriage. Observers of this practice might well conclude that what is good for the goose is good for the gander.
Lochner’s invitation to judges to impose their own views, values and preferences — economic, social and political — proved galling to Peckham’s colleagues, including Justices John Marshall Harlan and Oliver Wendell Holmes. They filed historically famous dissents that proved influential in the development of other constitutional law doctrines. We turn next week to those dissents.