Skip to main content
×
Home
    • Aa
    • Aa

Protective Labor Legislation in the Courts: Substantive Due Process and Fairness in the Progressive Era

Abstract

The Supreme Court's decision in Lochner v. New York (1905), invalidating an act limiting working hours for bakers as a violation of contractual freedom, has come to symbolize an era in constitutional law. The period covers the years from the end of the Gilded Age through the Progressive Era. Its chief characteristic, according to its critics, is the judiciary's hostility to progressive labor legislation. Statutes intended to protect vulnerable classes from the ravages of industrialization were routinely defeated in the courts. Progressives pioneered an interpretation in which Lochner became a leading “anticanonical” case, wrongly deploying the doctrine of substantive due process to shield inherited distributions of wealth and power. The time is long past when scholars characterized the era as a product of judges' reactionary commitments to laissez-faire or, worse, to Social Darwinism, following Justice Holmes's quip, dissenting in Lochner, that “the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.” Contemporary scholars have reconstructed the period's jurisprudence, finding in it a principled commitment to a conception of justice grounded in the Founding. The most widely accepted explanation, developed by Gillman's influential study, is that substantive due process embodied a principle of neutrality requiring courts to distinguish the authentic public aims of legislation from illegitimate attempts to advantage some classes at others' expense. An alternative explanation is that judges, drawing on the theory of natural rights, developed the doctrine of substantive due process to limit government's discretion to encumber prepolitical rights to private property and liberty of contract.

Copyright
Corresponding author
ckatz@luc.edu
Linked references
Hide All

This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

William E. Nelson, “The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America,” Harvard Law Review 87 (1974): 537–38

The Progressiveness of the Supreme Court,” Columbia Law Review 13 (1913): 294313

Howard Gillman, “The Antinomy of Public Purposes and Private Rights in the American Constitutional Tradition, or Why Communitarianism is Not Necessarily Exogenous to Liberal Constitutionalism,” Law & Social Inquiry 21 (1996): 72

Cass R. Sunstein, “Lochner's Legacy,” Columbia Law Review 87 (1987): 876–83

Learned Hand, “Due Process of Law and the Eight-Hour Day,” Harvard Law Review 21 (1908)

Roscoe Pound, “Liberty of Contract,” Yale Law Journal 18 (1909)

Francis W. Bird, “The Evolution of Due Process of Law in the Decisions of the United States Supreme Court,” Columbia Law Review 13 (1913): 4950

Fowler Vincent Harper, “Due Process of Law in State Labor Legislation,” Michigan Law Review 26 (1928): 620–25

Melvin I. Urofsky, “State Courts and Protective Legislation,” The Journal of American History 72 (1985): 6391

John Harrison, “Due Process and the Constitutional Text,” Virginia Law Review 83 (1997)

Constitutionality of Statutes Requiring Corporations to Pay Employees' Wages in Money,” University of Pennsylvania Law Review 56 (1908): 194–97

Robert Mayer, “What's Wrong with Exploitation,” Journal of Applied Philosophy 24 (2007): 137–50

Robert Mayer, “Sweatshops, Exploitation, and Moral Responsibility,” Journal of Social Philosophy 38 (2007): 605–19

Charles E. Persons, “Women's Work and Wages in the United States,” The Quarterly Journal of Economics, 29 (1915): 207

Barry Cushman, “The Secret Lives of the Four Horsemen,” Virginia Law Review 83 (1997): 559645

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
  • URL: /core/journals/law-and-history-review
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×