Bad jobs, legislative improvements, and judicial roadblocks

The late nineteenth- and early twentieth-century United States was undergoing major and protracted transformations in economic and social life.Footnote ³ As a result of these transformations, the U.S. economy killed and disabled a great many working-class people in a variety of ways.Footnote ⁴ Work in commercial baking in this period was particularly known for long hours and poor conditions. These realities were the subject of dispute at least as early as 1881. That year a New York bakery workers’ union surveyed 500 workers in the industry and found that it was common to work 18 hours per day, with many putting in a regular 23-hour shift once a week, for a total of 100 or more hours per week. Many of those hours were worked at night in an environment that was “exhausting and cheerless.”Footnote ⁵

The Bakeshop Act capped work hours in bakeries at 10 per day and sixty per week, and authorized the state’s factory inspectors to inspect bakeries, issue orders, and fine employers in order to enforce the Act. Late in 1895, a New York inspector and former bakery worker named Dennis Hanlon spoke to a conference of factory inspectors about the state’s fledgling efforts in bakeries. Hanlon reported conditions very similar to those documented in the 1881 survey, with bakers regularly working 16-hour shifts, a regular 24-hour shift once per week, and a weekly total of over 100 hours worked.Footnote ⁶

Three years later, Daniel O’Leary, the head factory inspector for New York state, testified before the United States Industrial Commission. O’Leary credited the passage of the law to “the agitation” by bakery employees who “called the attention of the public to [the] abuses” rampant in the industry.Footnote ⁷ He said that while the Act was in no way perfectly followed or enforced, it had still wrought “a very great improvement” in bakeries in the state. He noted that “the hours of labor of bakers have been materially reduced in all the bake shops of the state,” as evidenced in part by the declining numbers of reports from workers regarding violation of the Act’s work hours limitations.Footnote ⁸

In addition to long hours, commentators also stressed the health hazards posed by working conditions. Dennis Hanlon said that investigations in New York and other states had repeatedly found conditions in bakeries that were “a menace both to the employes [sic] and the bread-consuming public.”Footnote ⁹ Hanlon had himself been in bakeries where “vermin” were “in visible abundance” along with “rats and mice.” Bakeries tended to be poorly ventilated, with “sewer and water-pipes” being “often found in a defective condition and in a close proximity to the utensils used in the production of bread.”Footnote ¹⁰ Given bakery workers often boarded in the bakeries where they worked, these sanitary conditions were all the more health-affecting. Poor ventilation was “the most dangerous element of life in a bakeshop,” since the air was “impregnated with disease and death, from the dust and the vile vapors” from poor plumbing. Long hours in such filthy conditions meant that bakery workers who boarded in bakeries “hardly ever get out of their baking-clothes” such that “they, as well as their bedding, are in a nauseating, filthy condition, totally unfit to serve as chief factors in the production of the staff of life.”Footnote ¹¹ Hanlon summarized by saying “the evils” in bakeshops “are manifold” and so long-standing that “their eradication, abolition, or even their alleviation” was “a task of gigantic proportions.”Footnote ¹²

Another factory inspector wrote of an employee bathroom “literally black with roaches” with the baking room “not much better.” In another bakery, “the sewer pipes leaked into the bakeroom and I really saw the contents flowing into the ferment-tub, which contains the yeast used in the production of the bread.”Footnote ¹³ Conditions like these posed a threat to the health of the workers employed in bakeries and to the consumers who patronized them. A year later, Hanlon addressed bakery inspection in another paper. He highlighted progress in the industry due to the Act, discussing numerous examples of bakeries that had cleaned up sanitation as well as reducing work hours after inspection. He pointed out that four U.S. states had passed similar bakeshop laws in the past year and four more had plans to do so in the near future.Footnote ¹⁴

New York was broadly representative of the United States at the time, insofar as the late nineteenth-century U.S. economy was generally very dangerous for waged workers.Footnote ¹⁵ Employees were increasingly exposed to a wide variety of dangers in the labor process due to the growing presence of powered machinery, electricity, intense heat, and chemicals in production; illnesses due to the presence of pollution and disease in increasingly crowded workplaces inhabited during working hours by large numbers of workers; and overwork due to excessive duration and intensity of work. Sanitary conditions were often poor outside paid workplaces as well. Growing poverty and crowded living spaces created both new conditions for disease and deprivation as well as harmful consumer goods, due to lack of regulation of the making of necessities.Footnote ¹⁶ In passing their bakeshop laws and similar legislation, U.S. state legislatures sought to mitigate the harms of those social conditions. One important impetus behind that legislative effort was the growing and increasingly combative labor movement.Footnote ¹⁷

Given that the changes to bakeries required by the Bakeshop Act were costly to employers, it’s unsurprising, then, that owners like Joseph Lochner bristled at the law. Lochner, the owner of a bakery in Utica, New York, brought a lawsuit against the state in 1899 after he was cited for violating the hours provisions of the Act. He lost his initial suit, appealed, and lost again. The Court of Appeals decision against Lochner emphasized that bakery conditions were generally bad for workers’ health due to “the intense heat” from the ovens and “the flour that floats in the air and is breathed” by workers. The dangers of such conditions, especially when intensified by the long work hours, could easily “produce a diseased condition” in bakery workers.Footnote ¹⁸

In 1905, the Supreme Court reversed the previous two decisions and found in Lochner’s favor, striking down the Bakeshop Act’s limits on work hours. From the available evidence, it seems clear that bakery workers put in very long hours in conditions that posed a risk both to those workers and to the consumers of baked goods, and that workers had long advocated legal limits to work hours. Thus, the Lochner decision was an important defeat for workers, one which worsened their lives. Since the decision applied across the entire United States, it was not a defeat limited to New York, but nationwide.

Lochner’s critics

The Supreme Court was criticized widely for Lochner, beginning almost immediately. Writing in 1905 shortly after the decision, legal scholar Ernst Freund argued that Lochner departed from the Court’s prior willingness to allow significant legal regulation of the economy. Freund suggested that the decision “strongly illustrate[d]” a growing assertiveness by judges in subjecting legislation to scrutiny and that he expected the decision to serve as a resource for anyone seeking to oppose legislative intervention into labor relations.Footnote ¹⁹

A few years later, in 1909, legal scholar Roscoe Pound wrote in even more pointed tones in the Yale Law Journal that the decision resulted from “the reactionary view” of “a bare majority of the Supreme Court”—the implication behind “bare majority” being that the decision lacked legitimacy.Footnote ²⁰ Pound added that the Court’s decision assumed two things, first that the duration of bakers’ work hours had no effect on the quality of the baked goods made (such that there was no consumer or public interest in regulating work hours in order to ensure that baked goods were healthy and safe to consume), and that the labor process in bakeries didn’t have any important effects on employee health. In Pound’s view, empirical evidence demonstrated that both of these assumptions were wrong, making the Court simply out of touch with the reality of work in the baking industry. Baking was hazardous such that reduced hours of work preserved workers’ health. This meant that longer hours harmed their health and, since bakeries produced food for the public, threatened the health of consumers.Footnote ²¹

Contemporary scholars tend to understand Lochner similarly to Freund and Pound. To give three representative examples from senior historians, Alan Derickson writes that after the decision “there were no prospects for state legislation limiting the total hours or night hours of adult male workers.”Footnote ²² Shelton Stromquist similarly describes the Lochner decision as having a “suffocating effect” on efforts to protect workers via legislation.Footnote ²³ Richard White calls the Lochner decision “the most crushing defeat” of attempts “to regulate the conditions of work” in this era.Footnote ²⁴

Lochner is arguably even more widely condemned by contemporary legal scholars with a progressive political outlook. For example, Joseph Fishkin and William Forbath’s recent The Anti-Oligarchy Constitution describes Lochner as “anti-redistributive, ‘laissez-faire’ constitutional politics” in “crystallized” form, and a politics which influenced “modern conservative” politics well after the early twentieth century.Footnote ²⁵ They take Lochner as a symbol for much of what they oppose in the U.S. economy and legal system historically and today, describing contemporary right wing libertarians as “neo-Lochnerian.” They further suggest that many U.S. judges, including today, hold neo-Lochnerian views.Footnote ²⁶ Legal scholar Samuel Bagenstos has similarly argued that courts in the contemporary United States in the present “continue to be driven by Lochner-ist premises.”Footnote ²⁷ Bagenstos is especially concerned with the degree to which Lochernism remains alive and well within U.S. labor and employment law, in that courts “continue to disregard the imbalance of bargaining power between (many) employers and (many) workers.”Footnote ²⁸ From this perspective, in important respects the Lochner era never fully ended.

Freedom of contract?

Critics who excoriate the Lochner decision for striking down hours limitations are right to do so, just as Pound was correct to call the majority of the Court reactionaries. That said, in a spirit of not letting sympathies get the better of analysis, it’s worth noting that Lochner left a substantial part of the Bakeshop Act in place. Specifically, the decision upheld the Act’s sanitary requirements designed to protect worker and consumer health by mitigating some of the awful conditions factory inspectors had documented. New York’s Bakeshop Act had (laudably) folded the U.S. labor movement’s longstanding effort to reduce work hours into the regulation of consumer products and of sanitary conditions in paid workplaces. Lochner pried those efforts apart. It’s worth noting that these efforts were already uncoupled in the majority of U.S states with bakeshop laws. As of 1904, eleven U.S. states had bakeshop laws, all of them regulating sanitary conditions but only four limiting work hours.Footnote ²⁹ Lochner thus left untouched fairly far-reaching public health and occupational safety legislation in many U.S. states. Part of why this matters is to make clear what sort of reactionaries the majority of the Court were. They were not hostile to all government regulation of business, nor were they hostile to government involvement in labor relations, since this was an era when federal courts regularly issued injunctions against striking workers.Footnote ³⁰

As labor historians know well, employers tend to exert significant power over employees. The philosopher Elizabeth Anderson has termed this reality private government. Businesses are governments because employers really do govern over significant parts of workers’ lives on the clock and to a significant degree off the clock. They are specifically private governments because their governing authority over employees tends to be significantly sheltered from accountability to employees, from the larger public as a whole, and from the public power of the state.Footnote ³¹

In an important sense the Lochner decision refused to treat bakery owners as private governments with regard to their property and production processes, since the decision allowed legislation subjecting sanitary conditions in bakeries to significant public oversight in order to reduce hazards to employee and consumer health. As such, legal scholars overreach a little in using Lochnerian and market libertarian as synonyms.Footnote ³² On the other hand, Lochner did treat—and mandated that U.S. legislators treat—businesses as private governments specifically with regard to their power over their employees and work hours. Protecting employer prerogatives over their employees seems to have been a major priority of judges in the United States in this era. Commenting on Lochner and related rulings, political scientist Karen Orren has written that judges’ decisions “almost always came down in the end to the master’s rights to hire and fire without interference.” Orren wrote that “the limited judicial imagination” that courts displayed “was devoted to that maneuvre.”Footnote ³³

This is all to say, the disagreement between the Supreme Court and workers, workers’ allies, and other critics of the Court was a matter not of stasis vs. forward progress but of two contending visions of what constituted acceptable progress. The Lochner-era Supreme Court were willing to countenance some directions of arguably progressive policy involving significant costs on and government control over businesses (i.e., sanitary regulation) while at the same time drawing a bright line preventing those progressive policies from democratizing employer-employee relations. The Lochner Court were not trying to stop historical change but channel it in a less egalitarian and redistributive direction.Footnote ³⁴

An important element of how the Court argued for and attempted to legitimate the less egalitarian direction of change that it preferred was, ironically, a rhetoric of freedom. The decision said that the heart of the matter was “which of two powers or rights shall prevail—the power of the State to legislate or the right of the individual to liberty of person and freedom of contract.”Footnote ³⁵ The former power could only trump the latter right if there was some important justification in terms of workers’ health. The Court found no such justification in their case.

The Court rejected the view that work in bakeries was particularly injurious. In a sense, and only to a limited extent, the sanitary regulation of bakeries supported that rejection. Sanitary regulation successfully reduced the hazards built into bakery working conditions, thus demonstrating that those hazards were subject to mitigation rather than being entirely inherent in the work. The Court also rejected the view that work hours could, by sheer duration alone, become injurious. For the Court, then, time spent working in a bakery was “not dangerous (…) in any real and substantial degree to the health of the employees.” As such, a piece of legislation limiting work hours in baking was not “really a health law.” Instead, the Court said, “the real object and purpose” of such limits in the Act was to impose one specific moral and political vision on others. That was not allowed under the Constitution as the Court interpreted it, since the Constitution supposedly protected “the freedom of master and employee to contract with each other in relation to their employment.”Footnote ³⁶ This view let the Court do two things. First, leaning on the Constitution let the Court pretend it was not itself imposing a specific moral and political vision on the present and unfolding future. Second, the emphasis on supposed freedoms of contract let the Court posture as defender of fundamental freedoms shared by all white, male, able-bodied citizens.Footnote ³⁷ It’s hard for anyone with any grasp of the realities of working-class life to treat Lochner’s emphasis on supposed freedom as both sincere and well-informed. That notion of freedom implied that employment in this era was characterized by substantial liberty and came close to ideologically denying that employers governed over workers at all.

After Lochner the legal limits on work hours became much harder to enact. Such limits became only permissible for populations judged especially vulnerable. One such population was workers in industries where work was held to be generally dangerous because more injurious than average, such as coal mining.Footnote ³⁸ The other populations were women and child laborers, who were legally understood as both less capable of the kind of self-advocacy involved in the supposedly free negotiation of an employment contract and also understood as populations in whose health the state had a particular interest—in important respects, U.S. law has often understood women and children’s health as in a sense everyone’s business, such that women and children get less bodily autonomy than adult men.Footnote ³⁹

Those exceptions were important in the aftermath of Lochner. As historian Nancy Woloch has demonstrated, after Lochner reformers placed increased emphasis on supposedly extra-vulnerable subsets of the working class, above all women workers. Whatever protection and health benefits these sorts of laws offered to women came at the expense of reinforcing the existing gendered division of labor in many workplaces and women’s status as a lower income population. This was another negative effect that the Lochner decision had on working-class people’s lives. In addition to limiting the capacity of workers and their allies to reduce work hours through legislation, the decision encouraged future reform efforts to affect women only, which fed into relative inequality among workers along gender lines.Footnote ⁴⁰

Consensus, divergence, and values seeking a genealogy

The discussion above has attempted to demonstrate two things. First, there exists some degree of explicit scholarly consensus opposing Lochner. Whether explicitly or implicitly, the content of that consensus includes significant agreement with Pound that the majority of the Lochner-era Supreme Court were reactionaries. Second, that consensus is largely correct, in that the Lochner decision really was a setback to efforts by workers, unions, and policy reformers to reduce work time, and a setback that encouraged subsequent reform efforts to take a worse direction than they would have if not for Lochner. As such, all things being equal, the world would have been a better place if the court had found against Joseph Lochner and upheld the hours limits in the Bakeshop Act. If these points are correct, then it seems to follow that, generally speaking, labor history as a field adheres to a set of values fundamentally antithetical to Lochner. After all, labor history is not typically undertaken as a value-neutral examination of workers’ lives but rather tends to be actively pro-worker and pro-labor movement, and tends to support relatively egalitarian and solidaristic visions of what a labor movement should be. At the risk of putting too fine a point on it, the political and moral sensibilities of labor history seem to generally be anti-reactionary, which gives our field an important kinship and camaraderie with other fields like feminist studies, disability studies, and ethnic studies.

That said, consensuses can and often do include important differences, and probably do so more often when a consensus is an implicit one. In a moment I will turn to trying to draw out some possible differences within what I’ve called the anti-Lochner consensus, and the next section will briefly present a case for one set of positions among those differences. Before doing so, however, it seems best to first make the case that this is worth doing. After all, one might reasonably ask why making implicit disagreements explicit is a worthwhile activity. To address this, I lean on some remarks by the historian E.P. Thompson about the relationship between normative values and historical inquiry.

Historians’ engagement with the past, Thompson wrote, tends to occur from “a position of value in search of its own genealogy,” whether explicitly or implicitly.Footnote ⁴¹ This is in part because as historians we are always examining some social world where there was not only “one dominant value-system but many competing sets of value, one of which was dominant only because it was professed by men who held power.”Footnote ⁴² Thus, the past that we seek to accurately depict was always a social world that significantly disagreed with itself: it was always in part “an argument about values.”Footnote ⁴³ This is because “conflicts of value, and choices of value, always take place. When a person joins or crosses a picket-line, that person is making a choice of values, even if the terms of the choice and some part of what that person chooses with are socially and culturally determined.”Footnote ⁴⁴

This is not at all to say that labor historians do nothing more than retroactively approve or disapprove, nor is this to reduce history to a marketing or propaganda exercise for preexisting certainties. Rather it is to say that in writing about social phenomena like picket-lines, phenomena which are themselves inherently conflicts between different values—“every class struggle is at the same time a struggle over values,” Thompson wrote—there is simply no non-normative position available, whether we like that or not.Footnote ⁴⁵ (After all, support for, opposition to, indifference over, and ambivalence about a picket line are all orientations of a sort to different sets of values in dispute.) This is also not to say that the connection between values and historical interpretation flows only one way, from present backward. Interpreting the past and arguing over its meaning is an important “way in which today’s actors identify their values and goals.”Footnote ⁴⁶ Situating ourselves in relation to the past is part of how we figure out who we are, who we want to be, and how we might to move from the former to the latter. One element of this situating is a matter of selecting which “values which we intend to enlarge and sustain in our own present.”Footnote ⁴⁷

To an important degree, Thompson’s remarks were sociological and descriptive, as he believed (rightly in my view) that historians are always engaged in an importantly normative enterprise. Nor are historians the only people to do so: many people in the present situate themselves in relation to parts of the past, real or imagined, giving their values genealogies. It’s common for people in an argument about values in any given present time to invoke past actors and values as one facet of that ongoing argument.

Thompson’s remarks have a prescriptive element as well, in that he wanted historians to be more self-reflexive in doing our work. He repeatedly talked about making choices of values. Values can only be actively chosen if they are explicit and we make decisions consciously. In my own scholarly life, I admit, I do not always do this. I am often fully occupied by simply trying to figure out mundane details of what actually happened and why, and how to present my findings to students or colleagues in the form of a relatively coherent narrative account. This means I regularly am drifting relatively unawares through choices of values rather than actively deciding on them. When I am doing that kind of drifting, I am, usually without noticing it, taking some things for granted: those things seem obvious, and why would anyone need to state or think about the obvious? While far from ideal that seems to me acceptable as a recurrent phase in the ordinary workaday life of doing history, since conversations about the work will tend to eventually force clarity about the orientation to values, especially since not all individuals find the same things obvious. That sort of forcing of clarity through conversation is much of the point in writing this meditation on Lochner.

Obviousness is one thing when an individual phenomenon, and it’s another when collective. As I’ve said, my sense is that what I’ve called the anti-Lochner consensus feels significantly obvious to those of us who adhere to it. There is something good about that sense of obviousness insofar as it expresses an important moral self-confidence about some things that really matter: labor history’s generally pro-worker and pro-labor movement orientation is morally right, even if this is the kind of thing it is awkward to say out loud in some social contexts. On the other hand, a shared sense of obviousness can prevent clarification of what we’re doing not only as individuals but as groups of individuals organized in fields. This is important because part of writing and teaching history is unavoidably, as Thompson wrote, “to enlarge and sustain” some values “in our own present.” If we are collectively unclear on those values, if the choices we make about them are more a matter of inertia than reflective decision-making, then we are still occupying “a position of value in search of its own genealogy” but we conduct that search less as conscious, deliberative, collective activity and more as a kind of moral and political stumbling.Footnote ⁴⁸ In other words, we either consciously and deliberately construct a genealogy for our values, or one happens to us.

That is all in part to say that when we do history, we do so actors in the present engaging past actors and their values, which were often in contention in their time. Our engagement with the past is simultaneously (a) influenced by our present values, (b) an influence on our present or future values, i.e., engaging the past can be at least somewhat a transformative experience, and (c) a small contribution to an argument about values happening in the present, not only among historians. All of that happens better, all things being equal, when we are more explicitly aware of what we are doing so that we can make conscious choices. A felt sense of obviousness, as with what I’ve called the anti-Lochner consensus, works against that explicit awareness and conscious choice. With that in mind, let’s turn to the implicit orientations toward values within the anti-Lochner consensus.

The consensus against Lochner is largely that the decision opposed hours reductions, something many workers dearly wanted and deserved, and sustained something many workers disliked and were to at least some extent harmed by, excessively long hours often worked at night. All of that seems correct but, at the same time, there are different positions from which one can find it to be so. Two classic slogans from the labor movement are apt here: “a fair day’s wages for a fair day’s work” and “abolition of the wages system.”Footnote ⁴⁹

Lochner opposed, and contemporary neo-Lochnerism opposes, the political and moral vision summarized in each of those slogans, yet the two visions differ nontrivially. This suggests that the contemporary scholarly consensus against Lochner involves an important degree of agnosticism about a significant difference in values. That agnosticism is a good thing insofar as it facilitates a productive, collegial pluralism. The respective visions which those two slogans abbreviate are each welcome within labor history, and individual labor historians and works of labor history generally fall on a continuum between these visions, even if not always explicitly, and even if some of us vacillate reasonably between the two. That we get along relatively well and learn from each other despite those differences is a very good thing. At the same time, agnosticism and implicitness about our orientation to values is nontrivially in tension with making conscious choices in the way that Thompson discussed.

It may well be that to an important degree sustaining this tension and living with it virtuously is as good as it gets for labor history as an academic field. Still, the next section will present a case for one position over another—“abolish” over “fair”—in the attempt to provoke some thought and conversation in our field in a way I hope is worthwhile.

Class is violent, unjust, and eliminable

There’s another important anniversary close to that of Lochner. In January 1905, a group of radical unionists gathered in Chicago, issuing a document called The Industrial Union Manifesto, which argued that in capitalism the best that workers could achieve was “only a perpetual struggle for slight relief,” such as the effort to pass the Bakeshop Act. Capitalism regularly threw workers “upon the scrap pile, to starve alongside the discarded machine.” This tendency had only worsened in the late nineteenth and early twentieth centuries, the Manifesto claimed, due to a combination of deskilling and concentration of capital into larger companies. As such, the document asserted, a new kind of unionism was necessary, one that involved a revolutionary socialist rejection of capitalism. In answer to the call in the Manifesto, radical unionists from around the United States attended the founding convention of the Industrial Workers of the World (IWW) a few months later, in June, just after the Lochner decision in April. The Preamble to the IWW’s Constitution declared the solidaristic principle that “an injury to one is an injury to all,” and soon added the words “instead of the conservative motto, ‘A fair day’s wage for a fair day’s work,’ we must inscribe upon our banner the revolutionary watchword, ‘Abolition of the wage system.’”Footnote ⁵⁰

From this perspective, to put it very simply, class is a social relationship where some people push other people around and use those other people for their own purposes. Class in this sense of the term is not a category of identity—like nationality and ethnicity—but rather is a category of violence and oppression—like racism and sexism.Footnote ⁵¹ That the widely used term “human resources management” does not universally spark immediate disgust speaks to how these facets of class are normalized.

As the Industrial Union Manifesto’s authors understood, the persistence of class in capitalism is dynamic rather than static. Capitalist societies are possessed of a kind of violent dynamism due to the necessary occurrence of unintended consequences and novel variations on longstanding problems, such as economic crises, harmful working conditions, excessive pace and duration of work, dangerous consumer goods, pollution, and poverty. These and similar patterns impose significant instabilities in working-class people’s lives, and in the lives of employers and the state as well—not least because instability in working-class people’s lives is sometimes politicized by workers’ collective action. The resulting conflicts often lead to changes in the organization of individual businesses and to whole industries, as well as to changes in law and policy such as New York’s Bakeshop Act. Those changes alter the time and place specific ways in which class is organized, without ending the ongoing existence of class relationships. In short, class changes to stay the same, and it always remains a relationship of domination or oppression.Footnote ⁵²

If we understand class as a category of oppression like racism and sexism, that means on the one hand that class is the name for a set of social phenomena which are violent and unjust, and on the other hand that these phenomena can be done away with. In that case, to the degree to which labor history is the history of class, our field studies something we think can and should be abolished, and we hope our scholarship makes a small contribution to that abolition.

From this perspective, Lochner was the U.S. Supreme Court’s response to an effort to mitigate workers’ oppression—the Bakeshop Act—and a response that reduced the degree of that mitigation. At the same time, workers would have remained oppressed even had the Court decided, as the New York Court of Appeals had previously, to uphold the Bakeshop Act’s hours limits. Certainly, the mitigation of oppression matters a great deal—in some cases what the Industrial Union Manifesto called only “slight relief” can literally be a matter of life and death for some people. At the same time, certainly the ongoing presence of oppression under even the best available forms of mitigation also matters a great deal.

Ideally, labor history (as a form of enlarging and sustaining certain values, in an ongoing argument against other values) will seek to bear both realities in mind and serve the ends of both fairer lives for workers in the short term and abolishing class in the longer term. This means treating particular harms to particular people—infinitely valuable, singular human beings, whose lives, deaths, and suffering we must treat with maximum dignity and care—as exemplifying broad social patterns of harm that are absolutely unacceptable and appallingly regular in this kind of society. This means criticizing not only the worst of what the Supreme Court and its ilk wish for the working class but also criticizing the shortcomings of the best forms of mitigating class violence on offer, insofar as those mitigations leave the fundamental injustice that is class still in place.

Maintaining that critical perspective involves resisting the temptation to focus too closely and narrowly on the character of decisions like Lochner as setbacks. That Lochner was a defeat for workers matters, but it also matters that the immediate alternative on offer—the hours limits in the Bakeshop Act—still fell far short of what workers’ dignity deserves. To put it another way, it’s worth trying to think two thoughts at once: that Lochner genuinely and unjustly injured workers, and that the very best that U.S. economy in 1905 (and ever since) offered to workers was little more than different degrees of injustice and injury.

I conclude intensely aware of the limitations of this meditation and pulled between urges polemical and conciliatory. I will close simply by asking: do we in labor history generally agree that class is a name for a structural injustice in society, and an injustice that can and should be eliminated rather than just mitigated? Reasonable people can certainly differ as to how to answer and, to be very clear, those of us who say yes on all counts do not have any monopoly on the ability to write good labor history. Still, those who answer with a no are more proximate to the Lochner-era Supreme Court than those who answer with a yes, and labor history is a different sort of activity depending on what one decides. Differences in whether and how one answers that question reflects real differences in what values labor historians individually and collectively “enlarge and sustain in our own present” through our teaching and writing.Footnote ⁵³