Takeaways from last week
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State action doctrine
Declining to extend Bill of Rights to the States
Declining to extend protections generally to Black citizens
Declining to extend protections based on gender
Differing interpretations of “equality” under the 14th
Anti-classification versus anti-subordination motives
Ultimate incorporation of Bill of Rights to states via substantive due process
Lochner, cont.
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The standard the court sets: Is this a fair, reasonable, and appropriate exercise of police power?
o They say they are not substituting their judgement for that of the legislature
o They say that “labor laws, pure and simple” can be struck down (see Coppage for
reasoning)
Analysis of fairness, reasonableness, and appropriateness
o Two part test: Government can interfere with the freedom of contract to meet certain
ends but (1) the act must relate to its stated end and (2) the end must be legitimate
 McCulloch-esque test but with the opposite outcome
o The court then evaluates several possible ends that the legislature could be pursuing
with this legislation
 It is dangerous to be a baker: They examine statistics which they take to show
it’s not much more or less dangerous than other jobs, and they compare it to
mining
 Healthy bakers make healthy bread: They say there is not a clear enough
connection here to justify it as a public health measure
 Since neither of these legitimate means “checks out,” by process of elimination
it must be aimed towards the end of regulating labor, which is not a legitimate
end to impinge on freedom of contract
Harlan dissent:
o Agrees with majority that there are appropriate and inappropriate times to limit
freedom of contract
o Thinks that court should only interfere if the means has no real relation to the stated,
legitimate ends (here: public health) OR if the law is a plain violation of rights –
essentially, he argues for more deference
Holmes dissent:
o The decision imputes a specific economic theory (that supports absolute freedom of
contract) upon the 14th’s “liberty,” but many people in the U.S. do not subscribe to that
economic theory
o The court cannot say if labor laws are okay. If the people of New York want labor laws,
they should be able to have labor laws
Other potential issues with the majority
o Maybe we should be deferential when it’s a 14th issue not related to the intended
beneficiaries (Black people)
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o Maybe we shouldn’t create unenumerated rights like the right to contract
o Maybe the court shouldn’t weigh in on policy disagreements
Takeaway: The Lochner era is defined by the use of substantive due process to aggressively
protect the freedom of contract from restricting laws in both state police power and the
federal commerce clause.
Muller
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Holding: Upholds a statute limited women’s work hours
Reasoning:
o In an exception to Lochner era doctrine, the court says that women, unlike bakers, do
need specific protection under the law
o Without a lot of reasoning, we might think that the court just agreed with the law and
thus upheld it
Is this friendly or unfriendly legislation to women (see Strauder)?
o Friendly: Limits their exposure to unsafe conditions
o Unfriendly: Sets them apart from men, may keep them from working the hours they
need to survive
Adkins
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Holding: Struck down statute setting minimum wage for women
Reasoning:
o The civil status of women has changed with 19th so we can’t justify restrictions on their
liberty to contract
o Amount of wages is the heart of the contract, whereas hours (as in Muller) is only
incidental
o The employer didn’t cause the woman’s poverty, so why should they be forced to pay
more than they otherwise would to alleviate her poverty?
Holmes dissent: Muller should control on this case. We should not be in the business of
evaluating whether laws are in the public interest
Commerce clause notes
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Three driving questions:
o Is the subject appropriate for regulation under the clause?
o Does the legislation match the purpose for which Congress was given the power to
control commerce?
o Does the legislation violate the 10th?
Champion
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Holding: Upheld ban on interstate lottery ticket sales
Note: Other cases upheld bans on interstate transport of liquor and women for “debauchery”
Hammer
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Holding: Struck down a law prohibiting goods that [were removed from the place of
manufacture within 30 days of children having worked in that factory] from being sold across
state lines
Reasoning:
o Draws a distinction from Champion, etc. because those involved the shipment of things
that were inherently harmful (including, apparently, women?) across state lines,
whereas here the goods themselves aren’t harmful
o Congress can regulate commerce, not manufacture