It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities?
Mr. President, the law school lecturer in chief, brought up Lochner v. New York.
Lochner v. New York is a case that was decided almost exactly 107 years ago by the Supreme Court of the United States.
The issue was simple: New York state passed a law
providing that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day. Lochner was a baker who wanted to work more than that. Lochner was prosecuted under the Bakeshop Act, and convicted a couple of times of the crime of working more than the amount the state deemed acceptable. After the second conviction, he decided to appeal the case. He failed to convince the judges in New York, and the case moved to the Supreme Court.
As an aside, while labor unions like to pretend hours laws and child labor laws are for the protection of all workers, they frequently serve to protect the interests of the entrenched workers in the face of competition from harder working, more productive workers.
The Supreme Court did note that there are legitimate reasons which might justify a government's interference with the right to sell one's own labor. These reasons are basically limited to (i) the exercise of legitimate police powers of the state; (ii) the presence of externalities (the example given was compulsory vaccination against communicable diseases); and (iii) legitimate health and safety concerns (such as workers in a mine requiring sufficient rest between shifts).
The full majority opinion is worth a read, and I am going to quote at length the part where Justice Peckham points out why such considerations do not apply:
… Some occupations are more healthy than others, but we think there are none which might not come under the power of the legislature to supervise and control the hours of working therein if the mere fact that the occupation is not absolutely and perfectly healthy is to confer that right upon the legislative department of the Government. It might be safely affirmed that almost all occupations more or less affect the health. There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty. It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities? A printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a dry goods clerk, a bank's, a lawyer's or a physician's clerk, or a clerk in almost any kind of business, would all come under the power of the legislature on this assumption. No trade, no occupation, no mode of earning one's living could escape this all-pervading power, and the acts of the legislature in limiting the hours of labor in all employments would be valid although such limitation might seriously cripple the ability of the laborer to support himself and his family. …
It is manifest to us that the limitation of the hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff in error convicted, has no such direct relation to, and no such substantial effect upon, the health of the employee as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employees (all being men sui juris) in a private business, not dangerous in any degree to morals or in any real and substantial degree to the health of the employees. Under such circumstances, the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with without violating the Federal Constitution.
That is the kind of clear reasoning in defense of freedom the likes of which the law lecturer-in-chief seems unable to muster in his understanding of the U.S. Constitution.
Now, based on the discussion above, you might be thinking that the question of whether a government can interfere with an individual's right to sell her labor in any which way she sees fit had been settled conclusively according to the U.S. Constitution.
Alas, you'd be wrong.
In this case,
Curt Muller, the owner of a laundry business, was convicted of violating Oregon labor laws by making a female employee work more than ten hours in a single day. Muller was fined $10. Muller appealed to the Oregon Supreme Court and then to the U.S. Supreme Court, both of which upheld the constitutionality of the labor law and affirmed his conviction.
Now, how can one re-concile this with the freedom to contract that was upheld in the case of Lochner? After all, people have the right not to work for an employer if they do not like the conditions.
How could the "progressive" Supreme Court decide the case the way it did without overturning Lochner?
Simple, the justices uniformly put forth and defended the notion that women are the weaker sex, that they cannot be trusted to decide for themselves to make the right choice on how much and in what conditions to work, and that governments could and should regulate women's right to contract more strictly than they do men's.
The support for this line of reasoning was provided by Justice Brewer.
Here is a telling passage from the unanimous opinion of the court:
Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the schoolroom are opened and her opportunities for acquiring knowledge are great, yet, even with that and the [p422] consequent increase of capacity for business affairs, it is still true that, in the struggle for subsistence, she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him; but, looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained even when like legislation is not necessary for men, and could not be sustained. It is impossible to close one's eyes to the fact that she still looks to her brother, and depends upon him. Even though all restrictions on political, personal, and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions -- having in view not merely her own health, but the wellbeing of the race -- justify legislation to protect her from the greed, as well as the passion, of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future wellbeing of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference [p423] justifies a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her.
Here are the main points made by the progressive court:
woman has always been dependent upon man.
As minors, … she has been looked upon in the courts as needing especial care
she is not an equal competitor with her brother
she is so constituted that she will rest upon and look to him for protection
her physical structure and a proper discharge of her maternal functions … justify legislation to protect her from the greed, as well as the passion, of man
The limitations which this statute places … upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all.
It should not take much effort to realize that the Court's unanimous decision was based on the same underlying principles as the Saudi ban on, say, women driving.
If you are offended by the progressive justices' argument that women are weaker than men, and therefore they cannot be trusted to make their own choices, Mr. President's attitude towards the American people should anger you more. Because, in President Obama's eyes, none of us is capable of making decisions, and considering trade-offs for ourselves.
Instead, all aspects of our lives have to be planned and dictated by a set of our betters who are "experts." We cannot be trusted to choose an appropriate level of insurance plan for medical expenses. No, we must all be forced to pay for others. Because, we are all subjects of inferior capability whom our betters must compassionately guide from the moment of our conception till our deaths.
I do not know about you, but I think it is high time we made politicians and courts recognize some limits to governments' ability to regulate private behavior.
I should note that nothing I wrote here is very original. Rich Burkhauser first introduced me to these cases back in 2004.
NB: I made a few grammar corrections, added the acknowledgment above, and inserted a quotation from Peckham at the top after the initial posting of this article.
NB: Thanks to Chris Nandor for noticing that I confused justices Brewer and Brandeis.