Lochner isn't a dirty word: correcting the cartoonish vilification of a libertarian Supreme Court decision.

• Author: Root, Damon W.
• Position: Book review

Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, by David E. Bernstein, University of Chicago Press, 208 pages, $45

IN 2005, when Barack Obama spoke out against conservative California Supreme Court Justice Janice Rogers Brown's nomination to the prestigious U.S. Court of Appeals for the District of Columbia Circuit, the junior senator from Illinois selected one of the most damning epithets in the liberal legal arsenal: Lochnerian. "One of the things that is most troubling is Justice Brown's approval of the Lochner era of the Supreme Court," Obama intoned from the Senate floor. "Keep in mind that same judicial philosophy was the underpinning of Dred Scott," the notorious 1857 decision that declared African Americans "had no rights which the white man was bound to respect."

The Supreme Court's 1905 decision in Lochner v. New York may he controversial, but it was not remotely like Dred Scott. At issue in Lochner was a provision of New York's 1895 Bakeshop Act making it illegal for bakery employees to work more than 10 hours a day or 60 hours a week. While the state legislature had the authority to enact valid health and safety regulations, Justice Rufus Peckham wrote for the 5-to-4 majority, the limit on work hours "is not, within any fair meaning of the term, a health law." It involved "neither the safety, the morals, nor the welfare, of the public," Peckham wrote, unlike those sections of the Bakeshop Act regulating "proper washrooms and closets," the height of ceilings, floor conditions, and "proper drainage, plumbing, and painting," which he deemed legitimate. As Peckham put it, "clean and wholesome bread does not depend on whether the baker works but ten hours per day or only sixty hours a week." In the Court's view, the hour limits therefore violated the Due Process Clause of the 14th Amendment, which says no state may "deprive any person of life, liberty, or property, without due process of law."

It was a straightforward decision based on longstanding American principles, including the free labor philosophy of the anti-slavery movement, that limit the government's power to regulate the economy. But most liberal legal scholars today will tell you Obama got it right, that Lochner represents the disgraceful triumph of evil bosses over cruelly exploited workers, reflecting a "willingness to consistently side with the powerful over the powerless."

Yet as George Mason University law professor David E. Bernstein reveals in his wonderful new book on the case, Rehabilitating Lochner, Obama's caricature is wildly at odds with the historical evidence. The true origins of the Bakeshop Act lie in an economic conflict between unionized New York bakers, who labored in large shops and lobbied relentlessly in...