Thread by @ErikLoomis

This Day in Labor History: April 17, 1905. The Supreme Court throws out New York's law limiting bakers' working hours to 60 a week and reinforcing the principle that workers had no legal rights. Let's talk about this disastrous decision and how we are returning to this today.

The guy standing on the right above is Joseph Lochner. He was a New York baker who worked his employees to the bone.

By 1900, the rise of the Progressive movement and an increasingly aggressive American working class led to a growing amount of state and local laws to regulate labor.

The exploitation of Gilded Age capitalism had moved large swaths of Americans, including in the middle and upper classes, to understand that basic protections must be granted if the nation was to remain socially stable.

And this attitude, while often paternalistic toward workers, had its benefits as workers really struggled to live lives of basic dignity in the Gilded Age.

The combination of low wages, very dangerous work, strikes met with state violence, and an economy constantly in turmoil thanks to the corruption of politicians and illegal machinations of capitalists meant that the American workforce had few options to improve their lives.

They tried but usually failed because of the combination of overwhelming state and corporate resistance, something Lochner would reinforce. Accessing middle-class support for basic rights was necessary in order to achieve even the most rudimentary improvements in workers’ lives.

New York was one of these states with a strong Progressive movement. In 1895, the state passed the Bakeshop Act.

This law regulated the sanitary conditions of bakeries and read “no employee shall be … permitted to work in a biscuit, bread, or cake bakery or confectionery establishment more than sixty hours in any one week,” as well as more than ten hours in a day.

In 1899, Joseph Lochner, a baker in Utica, was indicted for violating the act by requiring employees to labor for more than 60 hours. He drew a $25 fine.

Not learning his lesson, he was charged again in 1901; this time the state fined him $50 ($1400 in 2014 dollars) and sentenced him to up to fifty days in jail if he did not pay the fine.

Lochner appealed this second fine, attempting to overturn the law. The Appellate Division of the New York Supreme Court upheld the law by a 3-2 vote and then the New York Court of Appeals, where he lost 4-3.

The Supreme Court was divided on this law. But by a 5-4 decision, the Court ruled in favor of Lochner and overturned the Bakeshop Act.

Calling such laws, “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract,” the Court effectively ruled that corporations have full rights to set any conditions of employment they chose.

John Marshall Harlan, the best justice of the era and often the only one with the welfare of the average citizen in mind, wrote one of his classic dissents.

He wrote that it was “plain that this statute was enacted to protect the physical well-being of those who work in bakery and confectionery establishments.”

He went on, “If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere.”

Oliver Wendell Holmes also dissented, using his ideology of limited court activism to accuse the majority of asserting their own economic preferences into the Constitution where they did not belong.

The majority in fact did that, but didn’t care. Rufus Peckham wrote the majority opinion.

He countered the argument of New York that “has a right to safeguard a citizen against his own lack of knowledge” by stating that citizens “are … able to assert their rights and care for themselves without the protecting arm of the State.”

And this really sums up the doctrine of free contract. Theoretically this sounds like the language of freedom because it places control over one’s life in his or her own hands. But of course such an analysis, which libertarians love today, completely ignores power relations.

No baker could assert his own rights because it was the employers who constricted those rights. When the option is a) work 65 hours or b) don’t eat, that’s not a freedom of choice.

Moreover, Peckham went into the health of working in a bakery, writing the law was unnecessary because “To the common understanding, the trade of a baker has never been regarded as an unhealthy one.”

Of course, such a judgment from a judge should not matter when deciding the constitutionality of the law–the question is whether it is constitutional, not whether the judge personally agrees on the merits of the law.

But of course the Supreme Court has long operated as little more than the assertion of personal political position as constitutional principle, a problem which plagues the Court today

Moreover, the question of health and work in the Gilded Age was one of huge importance because work was so starkly unhealthy.

Compared to paint workers having their brains disintegrated through lead poisoning and radium workers dying from horrendous cancers bakers didn’t have it so bad, but that doesn’t mean that working in unsanitary conditions for long hours did not have an effect on their health.

Even when employers and states decided to something about workers dying or suffering grievous injuries on the job, it would take until the establishment of OSHA in 1970 before workplace health per se was really taken that seriously in the United States.

Lochner was also the peak of corporate rights superseding that of workers and the public.

The Muller v. Oregon decision three years later carved out room in the freedom of contract ideology for hours limitations on women workers, which began to slowly build toward the principle of government regulating the workforce.

From 1905 on, Lochner became the case that progressive labor activists such as Louis Brandeis sought to overturn.

Yet this would be a long fight lasting until the New Deal, with the Court reviving the Lochner doctrine in the 1923 case Adkins v. Children’s Hospital, declaring a Washington DC law setting minimum wages for women and children unconstitutional.

Conservatives would like to return to a Lochner-era America today and are working hard to make sure that happens.

This is why I was so furious in 2016 when people on the left said it was "blackmail" for them to vote for Hillary because of the Supreme Court. The Court literally decides life or death! It decides whether workers will have rights or not!

In 2016, the question was literally, "Will public sector unions be able to survive or will they be subjected to right to work on a national level?" And that wasn't enough for a lot of people on the left to vote for a flawed candidate. Meanwhile, now we have Gorsuch and Kavanaugh.

To be honest, I don't think most people, even those on the left who are often smart, really know just how terrible the past was and how serious conservatives are in recreating that past. So they blow off things like the Supreme Court to engage in beefs against centrists.

In short, the future of this country is probably the reestablishment of Lochner in the coming decades. That is what we face.

Back tomorrow to discuss the West Virginia Mine War of 1912.