Talk:Lochner v. New York

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Loose comments[edit]

Very interesting article. To think that so many people believe that judicial activism started in the '60s! One question, though: how often have there been cases before the U.S. Supreme Court that weren't controversial? ☺ — Jeff Q 00:57, 16 Sep 2004 (UTC)

well.. i think the court is fair for the bakery how would they work for 60 hours in one week??

THINK if you were them can you work that long??

Believe me, I'm all for judicial review, but is "liberty of contract" ever specifically mentioned in the 14th. Even if it isn't I really like Lochner because it showed the SC still had balls after the Taney Court era. Go judicial activism, but only if we the people agree it's not too activist, how fair is that?


The second paragraph specifically seems slanted and lacking in support for its strong assertions. It compares poorly in this regard with the overlapping Lochner era article. ENeville 18:57, 2 October 2006 (UTC)

I'd be fine with deleting the "judicial overreaching" sentence, absent a quote in support. However, the claim in the second sentence of the substance of criticism the decision has received ("the Court discarded sound constitutional interpretation in favor of personal ideology") is supported by Holmes' dissent, first of all. As far as "most legal scholars," etc., subsequently criticizing the decision, that is currently without a citation, though it is accurate; it shouldn't be too hard to drum up some general statements from law review articles about Lochner being "universally discredited." If it's alright with you, I think we should remove the POV tag from the article, but leave the citation needed tag in place. Postdlf 21:14, 2 October 2006 (UTC)
Seems reasonable. I don't mind the statement per se, it just seems pretty strong without specific backup. I still don't have an entirely clear picture of intended use of general references versus specific citations in Wikipedia. ENeville 03:43, 4 October 2006 (UTC)

Changes by[edit]

I am an academic and a Lochner expert, and on Feb. 1 I made some changes that corrected inaccuracies in the article. For example, the Bakeshop Act was not passed in 1897, but in 1895 and repassed in 1896, and the relevant line of cases that led to Roe started with Meyer v. Nebraska in 1923, not Pierce in 1925. Meyer itself cited Lochner, and was not a separate line of cases, as the article suggests. These changes should not have been deleted. 16:14, 6 February 2007 (UTC)

My bad; I won't revert again. In the future, you might want to consider registering an account, explaining your changes in the edit summary box, and adding footnotes with references. Unsourced and unexplained changes by anonymous IP accounts are typically vandalism, which causes all such anonymous edits to be viewed suspiciously. Also, it's better to make your changes in as few edits as possible, by using the "show preview" button to consider how your changes look instead of saving right away. Cheers, Postdlf 20:00, 6 February 2007 (UTC)

Dissent by Oliver Wendell Holmes[edit]

For the great jurist that Oliver Wendell (three generations of imbeciles are enough) Holmes allegedly was, I don’t think he really excelled himself in his dissent here. He may have applied some catchy lines like “But a constitution is not intended to embody a particular economic theory” and “The fourteenth Amendment does not enact Mr Herbert Spencer’s Social Statics” but I’m not sure how strong the logic of his dissent really is. To wit: “this case is decided upon an economic theory which a large part of the country does not entertain”… “Mr Hebert’s Social Statics [an advocacy of Laissez-Faire economics]” This is a straw man argument Oliver. Freedom of contract is not per se economic but is about the rights of man, economic or otherwise. Freedom of contract (should) also apply to marriage contracts and contracts to purchase the family home. Not that I have read the whole case but I don’t think Lochner or Justice Peckham defended their position on reasons of benefiting the economy. “citing laws against Sunday trading and usury as "ancient examples" to the contrary” A law violates a freedom when it applies close to 24/7. The fact that you can’t do something on Sundays doesn’t really mean you can’t do it. Yes the reference to usury is a valid argument. That is if it were outlawed in the constitution rather than in that depositary of separation, the bible!

I actually think interpreting the 14th Amendment to make it guarantee substantive rights instead of just procedural is a stretch, in fact a real stretch, but that was the precedence the Supreme Court of 1905 had to follow. If the Constitution allegedly also defends unspecified freedoms you can’t pick the freedoms you like and ignore the others. (err.. freedom of contract- no, freedom of choice to have an abortion-yes, freedom of choice to smoke pot-no, freedom to bear arms-yes, freedom of choice to have more than one wife-no, freedom of choice to euthanize-no, freedom ……..) Ideally Justice Peckham should have simply overruled previous decisions and declared that the 14th held nothing more than what it said; simply that due process (procedural rights) only are guaranteed. Whatever the law actually is, everyone must be afforded it and protected by it. Then he could have ruled the Bakeshop Act valid to the satisfaction of everyone who believes in democracy.

Edward Carson (talk) 03:42, 1 January 2011 (UTC)

There is no freedom of contract i.e. freedom of slavery. Lochner is one of the most infamous court decisions of all time. It's so bad, that it's become a very, "Lochnerize", meaning "to substitute our own personal beliefs for the words of the constitution". Your ideological analysis really has no place in these discussions. Libertarians want to impose their viewpoint on everyone everywhere - what a poisonous ideology. (talk) 05:14, 30 November 2011 (UTC)

Agoldmanster (talk) 16:07, 31 March 2012 (UTC) Holmes is excellent here. Although radical right conservatives are trying to revive the freedom to oppress (end minimum wage, etc.), the majority view at the moment is that this was a bad decision, and Holmes explains why very well. The "freedom to contract" should not allow employers to force employees to work over 60 hours per week, over 10 hours per day. I am a law student.

Holmes also notes that allowing bakers to work no more than 10 hours per day _can_ be grounded as a health law (both for the bakers, and for their customers. Agoldmanster (talk) 16:07, 31 March 2012 (UTC) Agoldmanster (talk) 17:24, 2 April 2012 (UTC)The fact that Holmes was himself sympathetic to Social Darwinism makes his dissent all the more powerful.Agoldmanster (talk) 17:24, 2 April 2012 (UTC)

employes v. employees[edit]

The opinion found at findlaw has "employe" spelled on just one final "e". I heard somewhere (?) that "employe" with one "e" and "employee" with two "e"s have different meanings---an "employe" has a fundamental right, whereas a "employee" is a privileged entity, therefore lacking fundamental consitutional rights. Opinions? Michael Hardy (talk) 21:19, 24 December 2011 (UTC)

Agoldmanster (talk) 16:08, 31 March 2012 (UTC) employee is borrowed from the French (or fake French = Frenglish). with one "e" it should have an accent aigu Agoldmanster (talk) 16:08, 31 March 2012 (UTC)