ABSTRACT
In Lochner, on a 5-4 vote, the Court struck down a New York law that limited the number of hours that bakers could work to no more than ten hours a day and sixty hours a week. Although the Court considered evidence in support of the claim that the regulation was enacted to address health and safety concerns regarding both the public and the bakers, the Court ruled that the regulation was unconstitutional because it interfered with the right of employers and employees to contract as they see fit. Specifically, the Court found that the right to so contract is “part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution” and that, in its view, the state had failed to establish that the hours limitation constituted an
appropriate exercise of its police powers. Rather, the Court determined that the New York law was completely unrelated to any legitimate attempt to regulate public safety or welfare. In so doing, the Court both created a substantive constitutional right out of whole cloth and disregarded the constraints on its Article III reviewing authority. Indeed, Lochner set the course for what would become an increasing, and inappropriate, willingness by the Court to create constitutional “rights” that are simply nowhere to be found in that document.
