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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.

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1. 198 U.S. 45 (1905).

2. Ibid., 54.

3. Gillman Howard, The Constitution Besieged, The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke University Press, 1993), 1015, 61–75, 86–99, 103–4. See also Horwitz Morton J., The Transformation of American Law, 1870–1960, the Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 1920, 26–34; and Cushman Barry, “Some Varieties and Vicissitudes of Lochnerism,” Boston University Law Review 85 (2005): 881999.

4. Bernstein David E., Rehabilitating Lochner, Defending Individual Rights against Progressive Reform (Chicago: The University of Chicago Press, 2011), 1422; Mayer David N., Liberty of Contract, Rediscovering a Lost Constitutional Right (Washington D.C.: Cato Institute, 2011), 1124, 30–32, 63–67; and Phillips Michael J., The Lochner Court, Myth and Reality, Substantive Due Process from the 1890s to the 1930s (Westport: Praeger Publishers, 2001), 105–19. In their view, the Lochner era's defense of fundamental rights was its principal legacy.

5. See Bernstein, Rehabilitating Lochner, 14–20, 121; and Mayer, Liberty of Contract, 31–32. Judges striking labor laws were not always careful to distinguish opposition to class legislation from protection of fundamental liberties. Cushman maintains that the principle of neutrality formed the principal strand in substantive due process jurisprudence, but nevertheless stresses “the error in attempting to identify … a single animating principle for a body of constitutional law composed by scores of decisions handed down over more than four decades, and involving more than two dozen Justices.” “Varieties and Vicissitudes,” 941. See also Barry Cushman, “Ambiguities of Free Labor Revisited: The Convict-Labor Question in Progressive-Era New York,” Virginia Public Law and Legal Theory Research Paper No. 2011–16, Abstract http://ssrn.com/abstract=1807114 (April 2011).

6. Nelson was the first scholar to explore the connections between free labor ideology and turn-of- the century substantive due process. Nelson William E., “The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America,” Harvard Law Review 87 (1974): 537–38. See also Gillman, Constitution Besieged, 13, 21, 27, 39, 61–62, 159–60, 175–93, 205; Cushman Barry, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998), 90; Horwitz, Transformation of American Law, 4, 11, 33–34, 193–95; Fiss Owen M., Troubled Beginnings of the Modern State, 1888–1910, vol. 8 of History of the Supreme Court of the United States (New York: Macmillan Publishing Company, 1993), 47, 108, 120–21; Bernstein, Rehabilitating Lochner, 17; Mayer, Liberty of Contract, 70–88; McCurdy Charles W., “The ‘Liberty of Contract’ Regime in American Law,” in The State and Freedom of Contract, ed. Scheiber Harry N. (Stanford: Stanford University Press, 1998), 167–79; and Forbath William E., “The Ambiguities of Free Labor: Labor and the Law in the Gilded Age,” Wisconsin Law Review (1985): 768800. Cf. Cushman, “Ambiguities of Free Labor Revisited,” exploring the complex pathways whereby free labor ideology, initially operating to defeat statutes regulating convict labor, was redeployed to underwrite legislation protecting workers from its unfair competition.

7. Foner Eric, Free Soil, Free Labor, Free Men: the Ideology of the Republican Party Before the Civil War (New York: Oxford University Press, 1970), 11. A significant ambiguity characterized free labor ideology. In the early decades of the new republic, economic opportunity meant the prospect of rising to self-employment, establishing oneself as an independent producer. This prospect was already receding on the eve of the Civil War. “This does not mean,” writes Foner, “that industrialization and mechanized agriculture ended social mobility—on the contrary, the evidence is that they expanded it. But the mobility of the age of the independent producer, whose aspiration was economic self-sufficiency, was superseded by the mobility of industrial society, in which workers could look forward to a rising standard of living.” Ibid., 33. See also Foner Eric, Politics and Ideology in the Age of the Civil War (Oxford: Oxford University Press, 1980), 5776.

8. McCurdy, “The ‘Liberty of Contract’ Regime in American Law,” 167.

9. Ibid.

10. This point was forcefully made by Charles Warren, not long after Lochner was decided, showing that the Supreme Court sustained virtually all state laws regulating the economy. See, in particular, The Progressiveness of the Supreme Court,” Columbia Law Review 13 (1913): 294313. See also Novak William J., The People's Welfare, Law and Regulation in Nineteenth-Century America (Chapel Hill: The University of North Carolina Press, 1996), 83114; Scheiber Harry N., “Economic Liberty and the Modern State,” in The State and Freedom of Contract, ed. Scheiber Harry N. (Stanford: Stanford University Press, 1998), 122–60; and Gillman Howard, “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.

11. See Fiss, Troubled Beginnings, 48–49, 104, 160–61, 169, 180–81, 186–88, 295; Gillman, The Constitution Besieged, 28–33, 46–47, 61–75, 89–99, 103–4; Horwitz, Transformation of American Law, 11; Bernstein, Rehabilitating Lochner, 50; Mayer, Liberty of Contract, 7, 54–56, 70–71; Phillips, The Lochner Court, 52–55; Ackerman Bruce, We the People:Transformations (Cambridge, MA: Harvard University Press, 1998), 362–68; McCurdy, “The ‘Liberty of Contract’ Regime in American Law,” 161–97; Sunstein Cass R., “Lochner's Legacy,” Columbia Law Review 87 (1987): 876–83; and Benedict Michael Les, “Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,” Law and History Review 3 (1985): 298.

12. See McCurdy, “The ‘Liberty of Contract’ Regime in American Law,” 167, 178–79, 182–87; Gillman, The Constitution Besieged, 241–42, n. 84, 250, n. 43, 255, n 73.

13. Gillman, The Constitution Besieged, 123–24, 157–60, 175–93; and Horwitz, The Transformation of American Law, 4, 33–4, 66, 194–99. Cf. Mayer, Liberty of Contract, 106, 108. Mayer agrees that this era in constitutional law came to an end in the late 1930s, but he sees the liberty of contract doctrine as a lost opportunity.

14. McGehee Lucius Polk, Due Process of Law under the Federal Constitution (Northport, N.Y.: Edward Thompson Company, 1906), 362–63; Hand Learned, “Due Process of Law and the Eight-Hour Day,” Harvard Law Review 21 (1908): 501; Pound Roscoe, “Liberty of Contract,” Yale Law Journal 18 (1909): 486; Freund Ernst, “Constitutional Limitations and Labor Legislation,” Illinois Law Review 4 (1910): 618; Bird Francis W., “The Evolution of Due Process of Law in the Decisions of the United States Supreme Court,” Columbia Law Review 13 (1913): 4950; and [Anon.] Liberty of Contract and Social Legislation,” Columbia Law Review 17 (1917): 541. See also Harper Fowler Vincent, “Due Process of Law in State Labor Legislation,” Michigan Law Review 26 (1928): 620–25; and Harper Fowler Vincent, “Due Process of Law in State Labor Legislation. Part Two,” Michigan Law Review 26 (1928): 770–75.

15. Pound, “Liberty of Contract,” 478–79.

16. Urofsky Melvin I., “Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era,” Yearbook of Supreme Court Historical Society (1983): 55. Urofsky's study of state court decisions reached a similar conclusion. Urofsky Melvin I., “State Courts and Protective Legislation,” The Journal of American History 72 (1985): 6391.

17. See Nourse Victoria F., “A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights,” California Law Review 97 (2009): 754–56, 767–74, 784–87; Cushman, “Varieties and Vicissitudes,” 924–44, 982–83; Cushman, Rethinking the New Deal Court, 89–92, 104–5; Bernstein, Rehabilitating Lochner, 20–22, 48–51, 126–27; Bernstein David E., “Lochner's Legacy's Legacy,” Texas Law Review 82 (2003): 3343; and Phillips, The Lochner Court, 31–89. Nourse offers a convincing explanation of the discrepancy between the judiciary's increasing receptivity to progressive legislation and contemporary reformers' hostility to the courts. The chief source of this hostility was not the progressive legal community, where a more nuanced view of the judiciary prevailed, but rather Theodore Roosevelt's politics. Roosevelt was engaged in building a political movement, and castigated Court decisions such as Lochner as part of a call to arms predicated on drawing a sharp contrast between progressivism and conservative reaction. He continued to demonize the judiciary even after conceding that Lochner had become a dead letter. Nourse, “A Tale of Two Lochners,” 751–99. See also Milkis Sidney M. and Tichenor Daniel J., “‘Direct Democracy’ and Social Justice: The Progressive Party Campaign of 1912,” Studies in American Political Development 8 (1994): 282340. Nourse's analysis also reminds us that legal and political narratives obey distinct dynamics. This is not to say that courts operate in a political vacuum. Rather, legal discourse has its own internal logic that cannot be reduced to politics; nor can legal change be explained simply as a reflection of political pressures. See Gillman, The Constitution Besieged, 15–18, for an excellent statement of this view.

18. Bernstein, Rehabilitating Lochner, 14–22; and Phillips, The Lochner Court, 105–19. See also Mayer, Liberty of Contract, 30–32, 63–67. Bernstein and Phillips do recognize that the judiciary's presumption in favor of liberty was rebuttable, by showing that legislation was genuinely intended to protect weaker parties from economic exploitation. Bernstein, Rehabilitating Lochner, 48–53; and Phillips, The Lochner Court, 57, 128–29, 137–39. They do not explain why judges concerned to protect contractual liberty routinely authorized the use of state power to redress the effects of workers' bargaining disadvantage.

19. Cushman, “Varieties and Vicissitudes,” 896–907, 924–44, 982–84, 999.

20. I do not address the legal controversy over workers' compensation statutes and laws prohibiting so-called yellow dog contracts, requiring workers to disassociate themselves from unions as a condition of employment. Although conflicting views of the market's fairness play a central role in these cases, they are complicated by special considerations and merit separate treatment. The constitutionality of compensation statutes involved the evolution of tort doctrine, from traditional to probabilistic conceptions of causation pioneered by the new science of accident statistics. See Witt John Fabian, The Accidental Republic, Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Cambridge, MA: Harvard University Press, 2004), 126207. The validity of statutes protecting labor unions required courts to reconcile contractual liberty with liberty of association. See Cushman, Rethinking the New Deal Court, 107–38.

21. Historians generally agree that West Coast v. Parrish, 300 U.S. 379 (1937), concluded this period of constitutional jurisprudence. There is less agreement about its starting-point. I chose the mid-1880s because Godcharles v. Wigeman, 113 Pa. 431 (1886) and Millett v. People, 117 Ill. 294 (1886) were the first decisions to strike employment legislation on substantive due process grounds. See Pound, “Liberty of Contract,” 455, 471.

22. Gillman, The Constitution Besieged, 190. See also Fiss, Troubled Beginnings, 7–8; Horwitz, The Transformation of American Law, 7. My argument parallels Cushman's fine study showing that the Court's Parrish decision followed its more liberal precedents rather than abruptly breaking with its past. Rethinking the New Deal Court, 89–92, 104–5.

23. The phrase itself—“substantive due process”—is anachronistic, but the judiciary's use of due process to establish substantive constraints on legislative power dates to the beginning of the Republic. See Orth John V., Due Process of Law (Lawrence: University Press of Kansas, 2003), 814; Ely James W. Jr., “The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process,” Constitutional Commentary, 16 (1999): 315–45; Bernstein, Rehabilitating Lochner, 8–9; and Mayer, Liberty of Contract, 20–21.

24. Holt James C., Magna Carta (Cambridge: Cambridge University Press, 1965), 327.

25. Calder v. Bull, 3 U.S. 386 (1798), 388.

26. Harrison John, “Due Process and the Constitutional Text,” Virginia Law Review 83 (1997): 506. See also McGehee, Due Process of Law, 22–23.

27. McGehee, Due Process of Law, 11.

28. Freund Ernst, Standards of American Legislation (Chicago: The University of Chicago Press, 1917), 66.

29. Commonwealth v. Alger, 61 Mass. 53 (1851), 84–85. See also Lawton v. Steele, 152 U.S. 133 (1894), 136.

30. McGehe, Due Process of Law, 64, 68.

31. Burdick Charles K., The Law of the American Constitution, Its Origin and Development (New York: G.P. Putnam's Sons, 1926), 418–19.

32. Dent v. West Virginia, 129 U.S. 114 (1889), 124.

33. Bernstein, Rehabilitating Lochner, 9, 14, 16; and Mayer, Liberty of Contract, 31–32, 66, 85.

34. Caldwell v. Texas, 137 U.S. 692 (1891), 697–98. See also Lawton v. Steele (1894), 137.

35. Gillman, The Constitution Besieged, 33–60; Forbath, “The Ambiguities of Free Labor,” 772–86; Kens Paul, “Lochner v. New York: Tradition or Change in Constitutional Law?” New York University Journal of Law and Liberty 1 (2005): 416–17; and Kens Paul, “Lochner v. New York: Rehabilitated and Revised, but Still Reviled,” Yearbook of Supreme Court Historical Society (1995): 4143.

36. Slaughter-House Cases, 83 U.S. 36 (1873). See Gillman, The Constitution Besieged, 64–68; and Forbath, “The Ambiguities of Free Labor,” 773–75. Manuel Cachán offers a more nuanced interpretation of Field's jurisprudence. Justice Stephen Field and ‘Free Soil, Free Labor Constitutionalism’: Reconsidering Revisionism,” Law and History Review 20 (2002): 541–76. Cachán rightly points out that “free labor” ideology was only one ingredient in Field's Slaughter-House dissent; an equally important component was “its ideological corollary, laissez-faire.” Ibid., 567. However, there was no tension between free labor and laissez-faire principles as long the market distributed opportunity fairly. The rift between them opened by the third quarter of the nineteenth century, when deepening economic inequalities undercut the claim that market ordering offered an equal opportunity to rise. In these changed circumstances, Field's continuing commitment to laissez-faire rendered his jurisprudence increasingly conservative.

37. Slaughter-House Cases, 90–91.

38. Ibid., 92.

39. Montgomery David, Beyond Equality, Labor and the Radical Republicans, 1862–1872 (New York: Afred A. Knopf, 1967), 28.

40. McCurdy, “The ‘Liberty of Contract’ Regime in American Law,” 178. See also Mayer, Liberty of Contract, 76; and Horwitz, The Transformation of American Law, 33–34.

41. Gillman, The Constitution Besieged, 89.

42. Kens, “Lochner v. New York: Tradition or Change in Constitutional Law?” 417.

43. Gillman, The Constitution Besieged, 89–92; Forbath, “The Ambiguities of Free Labor,” 796–800; Urofsky, “State Courts and Protective Legislation,” 81–82; McGowan Carl E., “The Divisibility of Employment Contracts,” Iowa Law Review 21 (1935): 6972; Harper, “Due Process of Law in State Labor Legislation,” 767–72; [Anon.] Constitutional Law: Police Regulations for the Protection of Laborers,” The American Law Review 24 (1890): 328–29; and [Anon.] Constitutionality of Statutes Requiring Corporations to Pay Employees' Wages in Money,” University of Pennsylvania Law Review 56 (1908): 194–97.

44. The two pioneering cases are Godcharles v. Wigeman, 113 Pa. 431 (1886), in which Pennsylvania's Supreme Court invalidated an act regulating wage payment in the mining industry, and Millet v. People, 117 Ill. 294 (1886), in which the Supreme Court of Illinois struck a similar law. For state court decisions striking time and manner of wage payment regulations, see also State v. Goodwill, 33 W. Va. 179 (1889); Commonwealth v. Perry, 155 Mass. 117 (1891); Frorer v. People, 141 Ill. 171 (1892); State v. Loomis, 115 Mo. 307 (1893); Johnson v. Goodyear Mining Co., 127 Cal. 4 (1899); State of Kansas v. Haun, 61 Kan. 146 (1899); Republic Iron & Steel Co. v. State, 160 Ind. 379 (1903); State v. Missouri Tie & Timber Co., 181 Mo. 536 (1904); Kellyville Coal Co. v. Harrier, 207 Ill. 624 (1904); and State v. Potomac Valley Coal Co., 116 Md. 380 (1911). Not surprisingly, scholarly discussions of the judiciary's hostility to wage regulation normally begin here, but they generally neglect the line of cases, beginning at the turn of the century, in which state courts rejected due process attacks on time and manner of payment laws. These cases are largely ignored by Gillman, The Constitution Besieged; McCurdy, “The ‘Liberty of Contract’ Regime in American Law;” Horwitz, The Transformation of American Law; Forbath, “The Ambiguities of Free Labor;” and Sunstein, “Lochner's Legacy.” They are, however, an important first test of the courts' willingness to sustain government intervention in wage negotiations.

45. People v. Gillson, 109 N.Y. 389 (1888), 399.

46. See the dissenting opinions in Commonwealth v. Perry, 155 Mass. 117 (1891) and State v. Loomis, 115 Mo. 307 (1893), supporting labor legislation to redress bargaining inequalities. See also Judge Smith's complaint in Kansas v. Haun, 61 Kan. 146 (1899), 162, invalidating an anti-scrip law, that “some judges” justified “legislation of this kind upon the theory that, in the exercise of police power, a limitation necessary for the protection of one class of persons against the persecution of another class may be placed upon freedom of contract.”

47. State v. Brown & Sharpe Manufacturing, 18 R.I. 16 (1892), 34–35.

48. Ibid., 33.

49. Ibid., 33–34. See also State v. Peel Splint Coal Co., 36 W. Va. 802 (1892), 829 [Rehearing].

50. Urofsky, “State Courts and Protective Legislation,” 81; Harper, “Due Process of Law in State Labor Legislation,” 770–71; and Pound, “Liberty of Contract,” 478. The grounds of the decisions were at first restricted to the states' authority to amend or repeal acts of incorporation in the public interest. They did not extend to natural persons. The states' authority was not unlimited, however, and courts faced the question whether changes in corporate charters satisfied substantive due process. See, for example, Leep v. Railway Co., 58 Ark. 407 (1894), striking an Arkansas act requiring wage payment on the day of discharge for natural persons, but sustaining the statute for corporations. By the end of the century, however, many state courts eliminated the distinction between licensed corporations and natural persons. There were successful challenges to statutes regulating time and manner of wage payment after 1900, but they became increasingly rare: see Republic Iron & Steel Co. v. State, 160 Ind. 379 (1903); State v. Missouri Tie & Timber Co., 181 Mo. 536 (1904); Kellyville Coal Co. v. Harrier, 207 Ill. 624 (1904); Jordon v. State, 103 S.W. 633 (1907); and State v. Potomac Valley Coal Co., 116 Md. 380 (1911).

51. In addition to the cases discussed pp. 14–20, the following state court cases sustained time and manner of payment laws. For statutes requiring payment in legal money, see Dayton Coal & Iron v. Barton, 103 Tenn. 604 (1899); Johnson Lyttle & Co. v. Spartan Mills, 68 S.C. 339 (1904); Regan v. Tremont Lumber Co., 134 La. 199 (1914); and Atkins v. Grey Eagle Coal Co., 76 W. Va. 27 (1915). For regular wage payment laws, see Opinion of the Justices, 163 Mass. 589 (1895); Seelyville Coal Co. v. McGlosson, 166 Ind. 561 (1906); Lawrence v. Rutland Railroad Co., 80 Vt. 370 (1907); Arkansas Stave Co. v. State, 94 Ark. 27 (1910); New York Central and Hudson River Railroad Co. v. Williams, 199 N.Y. 108 (1910); State v. Missouri Pacific Railroad, 242 Mo. 339 (1912); and Manford v. Singh, 40 Cal. App. 700 (1919). For statutes regulating manner of determining miners' wages, see Kansas v. Wilson, 61 Kan. 32 (1899); and McLean v. State, 81 Ark. 304 (1906). See also International Text-Book v. Weissinger, 160 Ind. 349 (1902), prohibiting future wage assignments.

52. Harbison v. Knoxville Iron, 103 Tenn. 421 (1899), 438. Harbison was affirmed by the United States Supreme Court in Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901).

53. Ibid., 443.

54. Ibid., 440, 443.

55. Ibid., 440. Caldwell approvingly cited the language of the United States Supreme Court in Holden v. Hardy, 169 U.S. 366 (1898), acknowledging that workers suffered from disparities in bargaining power that made them especially susceptible to employer overreaching. Ibid., 444. He also drew on Holden to underscore the irony in the claim, offered by counsel for the employer, that the law “violated his right to contract as he pleased. To that contention the Court aptly replied: ‘The argument would certainly come with better grace and greater cogency from the latter class.’” Ibid., 445. Two state appellate courts also cited Holden's finding that workers were economically vulnerable. See Kansas v. Wilson, 7 Kan. App. 428 (1898), 436–37, sustaining a statute regulating the weighing of coal, and New York Central and Hudson River Railroad Co. v. Williams, 64 Misc. 15 (1909), 28–29, upholding a law requiring semimonthly payment in cash. Both cases were affirmed on appeal by the states' high courts: State v. Wilson, 61 Kan. 32 (1899); and New York Central and Hudson River Railroad Co. v. Williams, 199 N.Y. 108 (1910). Holden's influence on rulings on labor legislation is discussed, pp. 22–26.

56. Harbinson v. Knoxville Iron, 443–44.

57. Ibid., 441.

58. Ibid., 447.

59. International Text-Book v. Weissinger, 160 Ind. 349 (1902), 354. The Indiana statute also prohibited future wage assignments, whereby workers would guarantee small loans by promising a portion of their next paycheck. See, also, the Supreme Court's ruling in Mutual Loan Co. v. Martell, 222 U.S. 225 (1911), sustaining a Massachusetts law prohibiting wage assignments. Both cases stressed the need to protect wage workers from being taken advantage of by unscrupulous lenders.

60. Johnson v. Spartan Mills, 68 S.C. 339 (1904), 360.

61. Shorthall v. Puget Sound Bridge Co., 45 Wash. 290 (1907), 294–95. “Acts of this nature,” concluded the Court, “have been passed by the majority of the states of the Union, and are supported by the great weight of the decisions of the state courts and by the supreme court of the United States.” The court appealed to a number of authorities, including State v. Peel Splint Coal Co. (1892); State v. Brown & Sharpe Mfg. Co. (1892); St. Louis, Iron Mountain & Southern Railway Co. v. Paul (1897); Harbison v. Knoxville Iron Co. (1899); Opinion of the Justices (1895); St. Louis, Iron Mountain and St. Paul Railway Co. (1899); and Knoxville Iron Co. v. Harbison (1901).

62. State v. Missouri Pacific, 242 Mo. 339 (1912), 360. The Missouri court's conclusion is also worth noting: “By common consent, in all civilized communities, an implied duty rests upon the State to aid those unfortunates who through sickness, old age, extreme poverty or other mischance are unable to supply themselves with those things which are necessary for their continued existence, and consequently any law which encourages people to work by holding out assurances that they shall promptly receive the wages they may earn … tends to encourage honest effort, and helps to build up an industrious, thrifty and self-respecting people, who, instead of becoming paupers, will be able to pay their debts, and being protected by the State in their efforts to better their condition, will have a direct interest in maintaining their protector, and in its good order, morals and general welfare.” Ibid., 376.

63. St. Louis, Iron Mountain and St. Paul Railway v. Paul, 173 U.S. 404. See St. Louis, Iron Mountain & Southern Railway Co. v. Paul, 64 Ark. 83 (1897). The Supreme Court, like the Arkansas court, sustained the law only as it affected corporations, under the state's authority to amend corporate charters; the law was held unconstitutional as it affected natural persons. Railroads were also firms clothed with a public interest, having special duties to the public. The state still faced the burden of showing that the corporate charter was amended for legitimate public aims, to correct an evil that had proven injurious to the public interest.

64. St. Louis, Iron Mountain and St. Paul Railway Co. v. Paul, 408. The high court quoted the Arkansas court in Leep v. Railway Co., 438.

65. St. Louis, Iron Mountain and St. Paul Railway v. Paul, 407. The statute, explained the Arkansas court, ameliorated “that discontent produced by the non-payment of wages upon discharge which may lead to ‘strikes,’ and consequent injury to the public.” St. Louis, Iron Mountain, 92.

66. Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901), 20–21; and Dayton Coal and Iron Co. v. Barton, 183 U.S. 23 (1901). See also Patterson v. Eudora, 190 U.S. 169 (1903), upholding an act of Congress making it unlawful to pay seamen's wages in advance.

67. McLean v. Arkansas, 211 U.S. 539 (1909), 549.

68. Ibid., 550.

69. In Rail & River Coal Co. v. Yaple, 236 U.S. 338 (1915), 345, the high court quoted a report by the Ohio Coal Mining Commission explaining why the screen system “was regarded as objectionable to the miners:” “they were not paid for mining a considerable quantity of marketable coal, and there was dissatisfaction because of the wearing of the screens so as to increase the size of the apertures between the bars above the standard.”

70. McLean v. Arkansas, 551.

71. Ibid., 550. These three cases were decided by a 7–2 majority, with Brewer and Peckham, the two more conservative Justices, dissenting without comment. St. Louis, Knoxville, Dayton and McLean were the main precedents for four time and manner of payment decisions, all unanimous, from the second decade of the twentieth century: Mutual Loan Company v. Martell, 222 U.S. 225 (1911), preventing a loan company from enforcing an assignment of future wages; Erie Railroad Company v. Williams, 233 U.S. 685 (1914), requiring a railroad company to pay its employees every 2 weeks; Keokee Consolidated Coke Co. v. Taylor, 234 U.S. 224 (1914), requiring payment in lawful money; and Rail & River Coal Co. v. Yaple, 236 U.S. 238 (1915), denying injunctive relief to a company from an order by the Ohio industrial commission prohibiting the use of screens in weighing coal for the purpose of determining wages.

72. Two characteristics define hard bargains: a normative standard of fairness, establishing what the parties to an exchange are due, and a disadvantaged party, whose vulnerability renders it exploitable, so that the other party gains undeservedly at its expense. For excellent analyses of the concept of exploitation, see Mayer Robert, “What's Wrong with Exploitation,” Journal of Applied Philosophy 24 (2007): 137–50; and Mayer Robert, “Sweatshops, Exploitation, and Moral Responsibility,” Journal of Social Philosophy 38 (2007): 605–19.

73. See Harbison v. Knoxville, 440.

74. Rodgers Daniel T., The Work Ethic in Industrial America, 1850–1920 (Chicago: University of Chicago Press, 1978), 155–60; and Montgomery, Beyond Equality, 230–60. For workers, the struggle for the shorter workday was chiefly motivated by considerations of economic fairness. See Kens Paul, Judicial Power and Reform Politics, The Anatomy of Lochner v. New York (Lawrence: University of Kansas Press, 1990), 1422.

75. The most prominent was Lochner v. New York (1905). See also Low v. Rees Printing Co., 41 Neb. 127 (1894); Wheeling Bridge and Terminal Railway Co. v. Gilmore, 8 Ohio C.C. 658 (1894); Re Eight Hour Law, 21 Colo. 29 (1895); In re Morgan, 26 Colo. 415 (1899); State v. Miksicek, 225 Mo. 561 (1910); State v. Barba, 132 La. 768 (1913); and Commonwealth v. Boston & M.R.R., 222 Mass. 206 (1915).

76. Bunting v. Oregon, 243 U.S. 426 (1917). See Bickel Alexander M. and Schmidt Benno C. Jr., The Judiciary and Responsible Government, 1910–1921, vol. 9 of History of the Supreme Court of the United Sates (Cambridge: Cambridge University Press, 1984), 600; Cushman, “Varieties and Vicissitudes,” 983; Gillman, The Constitution Besieged, 146; and Harper, “Due Process of Law in State Labor Legislation,” 619–24.

77. For Supreme Court cases sustaining maximum hours statutes for women, see Muller v. Oregon, 208 U.S. 412 (1908); Sturges v. Beauchamp, 231 U.S. 320 (1913); Riley v. Massachusetts, 232 U.S. 671 (1914); Hawley v. Walker, 232 U.S. 718 (1914); Miller v. Wilson, 236 U.S. 373 (1915); Bosley v. McLaughlin, 236 U.S. 385 (1915); Dominion Hotel v. Arizona, 249 U.S. 265 (1919); and Radice v. New York, 264 U.S. 292 (1924). For state court cases, see Commonwealth v. Hamilton Manufacturing, 120 Mass. 383 (1876); Commonwealth v. Beatty, 15 Pa. Super. 5 (1900); Wenham v. State, 65 Neb. 394 (1902); State v. Buchanan, 29 Wash. 602 (1902); State v. Muller, 48 Ore. 252 (1906); State v. Shorey, 48 Ore. 396 (1906); Ritchie & Co. v. Wayman, 244 Ill. 509 (1910); State v. Somerville, 67 Wash. 638 (1912); People v. Schweinler Press, 214 N.Y. 395 (1915); and State v. Collins, 47 S.D. 325 (1924). The major exceptions, in which state courts struck statutes regulating women's working day, were Ritchie v. People, 155 Ill. 98 (1895); People v. Williams, 189 N.Y. 131 (1907); and Burcher v. People, 41 Colo. 495 (1907). The Illinois court reversed course in Ritchie & Co. v. Wayman (1910), and the New York Court of Appeals overruled Williams in People v. Schweinler Press, 214 N.Y. 395 (1915).

78. For United States Supreme Court cases, see U.S. v. Martin, 94 U.S. 400 (1876); Atkin v. United States, 191 U.S. 207 (1903); Ellis v. United States, 206 U.S. 246 (1907); United States v. Garbish, 222 U.S. 257 (1911); and Heim v. McCall, 239 U.S. 175 (1915). For state courts, see Ex Parte Kuback, 85 Cal. 274 (1890); State v. Atkin, 64 Kan. 174 (1902); and In re Broad, 36 Wash 449 (1904).

79. My interpretation of this case is indebted to communications with Professor Barry Cushman.

80. Gillman, The Constitution Besieged, 120.

81. Holden v. Hardy, 383; see also 390–91.

82. Ibid., 392, quoting Lawton v. Steele, 136.

83. Ibid., 385.

84. Ibid., 387.

85. Ibid., 390.

86. Ibid., 393.

87. Ibid., 387, 391–92.

88. “Within this general category are ordinances providing for fire escapes for hotels, theatres, factories and other large buildings, a municipal inspection of boilers, and appliances designed to secure passengers upon railways and steamboats…. In States where manufacturing is carried on … provision is made for the protection of dangerous machinery against accidental contact, for the cleanliness and ventilation of working rooms, for the guarding of well holes, stairways, elevator shafts and for the employment of sanitary appliances. In others, where mining is the principal industry, special provision is made for the shoring up of dangerous walls, for ventilation shafts, bore holes, escapement shafts, means of signaling the surface, for the supply of fresh air and the elimination … of dangerous gases, for safe means of hoisting and lowering cages, for a limitation upon the number of persons permitted to enter a cage, that cages shall be covered, and that there shall be fences and gates around the top of shafts, besides other similar precautions.” Holden v. Hardy, 393–94.

89. Ibid., 395.

90. Ibid., 396.

91. Ibid., 392.

92. Ibid., 397.

93. Ibid., 394. The constitutionality of workplace safety laws was fully accepted even by the most libertarian judges, who normally rejected regulation of the employment contract. Thus, striking a maximum hours law for women, Justice Magruder distinguished those sections of the law mandating sanitary conditions in the workshops, with which he had no quarrel, from the hours provisions, on the grounds that work in the garment industry was not particularly dangerous and that women, unlike the “necessitous borrower,” do not lack the competence to make judgments about their own hours of work. Ritchie v. People, 155 Ill. 98 (1895), 106, 111–13. A decade later, Justice Peckham, writing the majority opinion in Lochner (discussed, pp. 28–31), accepted the constitutionality of the bakeshop act's provisions dealing with health and safety.  He did not see those provisions as inconsistent with free labor assumptions.  When it came to the statute's hours provisions, however, he distinguished the instant case from Holden and Knoxville on the grounds that baking was not particularly unhealthful and that bakers, unlike miners, were not economically disadvantaged.

94. Montgomery, Beyond Equality, 303.

95. Holden v. Hardy, 393, 395.

96. Courts distinguished laws regulating sailors, borrowers and minors, which had been upheld, from laws regulating the employment contract of adult males, which they struck, on the ground that the former suffered from traditional incapacities known to the common law, whereas adult male workers were fully capable of protecting themselves. See Millett v. People (1886), 302–3; State v. Fire Creek Coal & Co. (1889), 190; State v. Goodwill (1889), 186; Frorer v. People (1892), 185–86; State v. Loomis (1892), 315–16; Braceville Coal Co. v. People (1893), 74; Lowe v. Rees Printing (1894), 135; In re Eight-Hour Law (1895), 32; and State v. Haun (1899), 162–63.  For an explicit criticism of free labor assumptions prior to Holden, see State v. Brown & Sharpe Manufacturing (1892), 34–35.

97. Holden v. Hardy, 397.

98. McCurdy, “The ‘Liberty of Contract’ Regime in American Law,” 167.

99. Holden v. Hardy, 398.

100. Ibid., 397.

101. See Bernstein, Rehabilitating Lochner, 21, 51; Stephen A. Siegel, “Lochner Era Jurisprudence and the American Constitutional Tradition,” North Carolina Law Review (1991), 21; and Urofsky, “State Courts and Protective Legislation,” 78.

102. People v. Havnor, 49 N.Y. 195 (1896). Federal and state judges generally sustained legislation requiring a day of rest. See Harper, “Due Process of Law in State Labor Legislation,” 629–30.

103. Ibid., 201.

104. Ibid., 203–04.

105. Ex Parte Boyce, 27 Nev. 299 (1904). See also State v. Peel Splint Coal Co. (1892) and International Text Book Co. v. Weissinger (1902).

106. Ibid., 333. A series of state cases in the early years of the century sustained maximum hours acts against due process attacks. They justified protective legislation, offering broad statements of the human harms of overwork, and acknowledging that inequalities between employers and wage workers explained why workers were unable to protect themselves. These courts moved cautiously to extend the reach of hours laws; they were limited to specific occupations or to a day of rest in the workweek. See Ex parte Kair, 28 Nev. 127 (1905); State v. Cantwell, 179 Mo. 245 (1904), affirmed per curiam by the United States Supreme Court in Cantwell v. Missouri, 199 U.S. 602 (1905); State v. Livingston Concrete Bldg. & Mfg. Co., 34 Mont. 570 (1906); and In re Martin, 157 Cal. 51 (1909). See also People v. Klinck Packing Co., 214 N.Y. 121 (1915).

107. The case was first appealed to a New York Appellate Division court, where the judges, in People v. Lochner, 73 A.D. 120 (N.Y. App. Div. 1902), voted 3–2 to sustain the law. The New York Court of Appeals, in People v. Lochner, 177 N.Y. 145 (1904), split 4–3 to uphold.

108. People v. Lochner (N.Y. App. Div. 1902), 128.

109. People v. Lochner (1904), 149–51, 155.

110. Lochner v. New York, 64.

111. Ibid., 61–2. Bernstein maintains that the hours provision of the bakeshop act was a product of interest group conflict rather than a neutral health law. It represented a political agreement between the larger bakeries and organized workers to drive smaller proprietors employing nonunionized workers out of business. See Rehabilitating Lochner, 24–30. This argument fails to account for the financial burden on the smaller proprietors of implementing the sanitary provisions of the act. Would not the capital outlays required to satisfy sanitary regulations also bankrupt small bakeries? See Kens Paul, Lochner v. New York, Economic Regulation on Trial (Lawrence: University Press of Kansas, 1998), for an alternative account of the bakeshop act's enactment.

112. Lochner v. New York, 62; see also 57.

113. The Court's 5–4 ruling was a surprise. Bernstein, Rehabilitating Lochner, 33; Gillman, The Constitution Besieged, 251–52, n. 54. It was also a very close call: it seems that Justice Peckham's majority opinion was originally written in dissent, and Justice Harlan's dissent was the majority opinion. “Whether one of the justices … switched his vote … and if so why, remains a mystery.” Bernstein, Rehabilitating Lochner, 146, n. 110. Scholars have also puzzled over the reasons that may have persuaded Justices Brown and McKenna, normally willing to give the police power wider latitude, to join the majority. See Bernstein, Rehabilitating Lochner, 33; Cushman, “Varieties and Vicissitudes,” 930–33; and Siegel, “Lochner Era Jurisprudence,” 16–18.

114. Lochner v. New York, 57; see also 58, 61, 64.

115. Ibid., 54–55.

116. Ibid., 57–58.

117. Ibid., 59.

118. Ibid., 59–60.

119. Ibid., 57. Peckham's concession to workers' negotiating weakness was somewhat strained. He characterized Holden to say that Utah's miners were constrained by “the kind of employment, mining, smelting, etc., and the character of the employees in such kinds of labor,” to accept “the rules laid down by the proprietors in regard to labor.” In Knoxville, Tennessee's miners and coal workers were said to “be at a disadvantage with the employer in matters of wages, they being miners and coal workers.” Harlan's dissent made it clear that, in justifying the hours law,the Court's minority referred to workers' economic weakness.

120. Ibid., 68. See Cushman, “Varieties and Vicissitudes,” 55; and Siegel “Lochner Era Jurisprudence,” 16–19.

121. Ibid., 71.

122. Ibid., 72.

123. Ibid., 69.

124. Harlan refused to consider the consequences of shifting the burden of proof for the validity of general hours legislation: “it must be remembered that this statute does not apply to all kinds of business. It applies only to work in bakery and confectionery establishments.” Lochner v. New York, 70.

125. Holmes's dissent, normally celebrated for its progressive tenets, would have virtually abandoned judicial review. On his view, the Court must defer to legislatures “unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” Whether a statute “would be open to the charge of inequality I think it unnecessary to discuss.” Lochner v. New York, 76. Ironically, it was Holmes, rather than his colleagues, who held a Darwinian understanding of social conflict. See Bernstein, Rehabilitating Lochner, 47; Horwitz, The Transformation of American Law, 139–43; and Witt, Accidental Republic, 43.

126. State v. Newman Lumber Co., 102 Miss. 802 (1912); and State v. Bunting, 71 Ore. 259 (1914).

127. State v. Bunting, 263; see also State v. Newman, 830.

128. Ibid., 267; also 271–72. See also State v. Newman, 830. The Oregon court also appealed to the negative externalities of working dangerously long hours: “it was in the legislative mind that the regular employment of persons for longer hours in factories where different kinds of machinery and facilities are operated under the present day high-pressure power would tend to increase the danger of accidents, and to a greater extent jeopardize life and limb, thereby increasing the demand for compensation for such injuries, a portion of which, under certain circumstances, would ultimately be borne by the state.” State v. Bunting, 271.

129. State v. Newman Lumber Co., 103 Miss. 263 (1912), 264.

130. Ibid., 267.

131. Ibid., 267–68.

132. Reproduced in Bunting v. Oregon. Gillman rightly argues that the new realism of the sociological jurisprudence articulated in legal circles during the first two decades of the century did not challenge the traditional distinction between illegitimate class legislation and legitimate promotion of public ends. The Constitution Besieged, 104, 144–45. See also Horwitz, Transformation of American Law, 169–70, 188–89.

133. “McKenna simply assumed that maximum-hour laws were as valid in their general application to male workers, regardless of whether a particular occupation was especially hazardous or wearing, as to female workers. That might have seemed a considerable leap some years earlier, but it was not by now.” Bickel and Schmidt, The Judiciary and Responsible Government, 601. Four members of the Lochner majority—Justices Peckham, Brewer, Fuller, and Brown—had left the Court by the time Bunting was decided. Justice McKenna remained on the Court, voting with the majority in Lochner and writing the majority opinion in Bunting. Cushman suggests that McKenna opposed New York's law as class legislation because it applied only to bakers, an infirmity that did not affect Oregon's law, covering industrial workers. “Varieties and Vicissitudes,” 937. Bickel and Schmidt, The Judiciary and Responsible Government, 39, 285, offer a more critical view of the “erratic” McKenna.

134. Bunting v. Oregon, 438.

135. Adkins v. Children's Hospital, 564.

136. [Anon.], “Liberty of Contract and Social Legislation,” 541.

137. Benno and Schmidt, The Judiciary and Responsible Government, 600.

138. Gillman, The Constitution Besieged, 158–59.

139. Ibid., 200.

140. Liberty of Contract, 106.

141. Adkins v. Children's Hospital, 554.

142. Ibid., 546.

143. Persons Charles E., “Women's Work and Wages in the United States,” The Quarterly Journal of Economics, 29 (1915): 207. Persons's study of women's wages covered workers in “trade and transportation … manufacturing, and … certain groups in the domestic field.” The “term minimum wage,” he explains, “is, in a sense, a misnomer, since our legislation has defined a reasonable living wage rather than the bare minimum necessary to eke out a comfortless existence. Of the eight states [with minimum wage laws in 1913], excluding Utah's flat rate, all are practically in line with California's statute, which declares that it should be ‘not less than a wage adequate to supply to such women and minors the necessary cost of proper living and to maintain their health and welfare.’” Ibid.

144. “Decent self-support” is taken from Felix Frankfurter's brief, submitted on behalf of the state, in the Oregon minimum wage cases––Stettler v. O'Hara, 69 Ore. 519 (1914) and Simpson v. O'Hara, 70 Ore. 261 (1914). Oregon Minimum Wage Cases (New York: Reprinted by National consumers' league, 1916), 356.

145. Reproduced in Stettler v. O'Hara, 69 Ore. 519 (1914).

146. Ibid., 524.

147. Order of the Oregon Industrial Commission, reproduced in Stettler v. O'Hara.

148. Ibid., 534.

149. Ibid., 535.

150. Ibid., 537.

151. Ibid., 538.

152. Ibid., 537. See also Frankfurter's brief, arguing that “the ‘liberty of contract’ which the present legislation would destroy is only the ‘liberty’ of an employer to abuse and the ‘liberty’ of an employee to be abused. True freedom of contract is established, rather than impaired, by such restrictions. Their very purpose is to assure the parties an equal basis for bargaining, so that they may be free to bargain on the merits, and not under the compulsion of a crippling necessity. With no margin or the margin of but a single meal between starvation there can be no true liberty of contract.” Oregon Minimum Wage Cases, A47–48.

153. Ibid., 525.

154. Ibid., 534–35.

155. Williams v. Evans, 139 Minn. 32 (1917), 40.

156. Stettler v. O'Hara, 243 U.S. 629 (1917). The Court was closely divided over the constitutionality of the minimum wage. The justices first heard this case in the October term of 1914, and the decision went against the statute, but it was never delivered, perhaps because the majority was fragile. The case was reargued in 1916. By this time, Justice Lamar had died and Justice Hughes had retired, replaced by Justices Clarke and Brandeis. Clarke voted to affirm the law; therefore, it would have been sustained had Wilson appointed a Justice other than Brandeis, who was sympathetic to minimum wage laws. See Bickel and Schmidt, The Judiciary and Responsible Government, 593–603. The validity of the minimum wage remained a close call throughout this period. Cushman maintains that its constitutionality was “a position that had been taken by five justices in 1917 and again in 1923 by four justices of the Taft Court, including the chief justice himself. After Justice Stone replaced Justice McKenna in 1925, it was probably consistently the view of a majority of the justices on the Court.” “Varieties and Vicissitudes,” 997.

157. Williams v. Evans, 139 Minn. 32 (1917); State v. Crowe, 130 Ark. 272 (1917); Larsen v. Rice, 100 Wash. 642 (1918); Holcombe v. Creamer, 231 Mass. 99 (1918); Miller Telephone Co. v. Minimum Wage Commission, 145 Minn. 262 (1920); and Spokane Hotel Co. v. Younger, 113 Wash. 359 (1920). See also Wagner v. Milwaukee, 177 Wis. 410 (1922), upholding the authority of the city of Milwaukee to establish a minimum wage for its own and its contractors' employees.

158. Reproduced in Adkins v. Children's Hospital.

159. Frankfurter's brief, from which the quotes in this and the following paragraph are taken, is reproduced in Adkins v. Children's Hospital. For an account of his role, see Bickel and Schmidt, The Judiciary and Responsible Government, 599–603.

160. Ibid., 317–18.

161. Bernstein, “Lochner Era Revisionism,” 10–11, 47–49; Siegel, “Lochner Era Jurisprudence,” 4, n. 9.

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

163. Adkins v. Children's Hospital, 553–54.

164. Ibid., 554–55.

165. Ibid., 555–56.

166. Ibid., 557.

167. Ibid., 558.

168. Ibid., 547.

169. Sutherland added that “a statute requiring an employer to pay in money, to pay at prescribed and regular intervals, to pay the value of the services rendered, even to pay with fair relation to the extent of the benefit obtained from the service, would be understandable.” Ibid., 559.

170. Ibid., 552–53.

171. For a discussion of the distinction between taking advantage of unfairness, and taking unfair advantage of unfairness, see Wertheimer Alan, Exploitation (Princeton: Princeton University Press, 1996), 298. Mayer, “Sweatshops, Exploitation, and Moral Responsibility,” 613–14, provides a persuasive critique of this distinction.

172. Adkins v. Children's Hospital, 558.

173. Ibid., 557–58. Poor relief was well established as one of the constitutionally legitimate functions of government. See Cushman, Rethinking the New Deal Court, 251–52, n. 6.

174. Adkins v. Children's Hospital, 567–71.

175. Ibid., 564.

176. Ibid., 563–64, 565.

177. Ibid., 562.

178. Ibid., 566.

179. Ibid., 563.

180. Ibid., 562.

181. See Cushman, Rethinking the New Deal Court, 66–88.

182. Ibid., 78.

183. Ibid., 78–83.

184. Chas. Wolff Packing Company v. Court of Industrial Relations of the State Kansas, 262 U.S. 522 (1923), 535.

185. Ibid., 538. See Cushman, “Varieties and Vicissitudes,” 958–81, for an excellent discussion of the Court's struggles in defining this third category.

186. Ibid.

187. Taft articulated a somewhat anomalous position on the Court, simultaneously supporting the minimum wage and restricting the category of business affected with a public interest to virtual monopolies. See Cushman, “Varieties and Vicissitudes,” 980–81.

188. Ribnik v. McBride, Commissioner of Labor of the State of New Jersey, 277 U.S. 350 (1928), 360. See also Justice Stone's dissent in Tyson & Brother – United Theatre Ticket Offices, Inc. v. Banton, 273 U.S. 418 (1927), 451–52: “Statutory regulation of price is commonly directed toward the prevention of exorbitant demands of buyers or sellers. An examination of the decisions of this Court in which price regulation has been upheld will disclose that the element common to all is the existence of a situation or a combination of circumstances materially restricting the regulative force of competition, so that buyers or sellers are placed at such a disadvantage in the bargaining struggle that serious economic consequences result to a very large number of members of the community.”

189. Ribnik v. McBride, 360.

190. Ibid., 361.

191. Nebbia v. New York, 291 U.S. 502 (1934), 523.

192. Ibid., 530.

193. See Mayer, “What's Wrong with Exploitation?” 138–39, 142, 144, for a discussion of free-rider exploitation.

194. Nebbia v. New York, 517–18.

195. Ibid.

196. Ibid., 538.

197. Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936), 632.

198. Ibid. Justice Roberts joined the majority decision in Tipaldo, invalidating New York's minimum wage law. His vote in Parrish was the infamous “switch in time that saved nine.” The controversy about Roberts's motivation does not affect my conclusion that Parrish represents the culmination of a trend reconciling the police power with progressive labor legislation and not a constitutional revolution. See Cushman's excellent discussion of the internal dynamics of the Court as the Justices wrestled with the complex procedural and doctrinal issues involved, concluding that Roberts's decision to join the Parrish majority cannot be characterized as surrender to public pressure. Rethinking the New Deal Court, 92–105.

199. West Coast Hotel v. Parrish, 395.

200. Ibid., 406.

201. Ibid., 407.

202. Ibid., 409–10.

203. Ibid., 395.

204. Ibid., 393.

205. Ibid.

206. Ibid., 398–99.

207. Ibid., 399.

He thanks David Tannenhaus and the referees of Law and History Review for their insightful and constructive comments. He is particularly indebted to Barry Cushman, Robert Mayer, and Susan Mezey, whose incisive analyses and suggestions were invaluable in sharpening the article's central argument.

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