New York's Bakeshop Labor Law Overturned

• Author: Allen Pusey
• Pages: 72-72

New York’s Bakeshop

Labor Law Overturned

BY ALLEN PUSEY

In October 1901, Joseph Lochner,

who owned a bakery on South

Street in Utica, New York, was in-

dicted and subsequently convicted

on two criminal counts of working his

employees beyond the hourly limits of

the Bakeshop Act, a relatively new state

law that limited the working hours of

bakery employees to 10 hours per day

and 60 hours per week.

The New York legislature had enact-

ed the law in 1897, spurred by the Jour-

neymen Bakers’ National Union and a

muckraking public health exposé in the

New York Press about the state’s abun-

dant bakeries headlined “Bread and

Filth Cooked Together.” But Lochner’s

challenge to his conviction and a $50

ne brought public focus to the long-

standing clash between the progressive

public welfare agenda and laissez-faire

capitalism’s hold on the courts.

As his appeal moved through New

York’s appellate courts, Lochner picked

up an unlikely ally in Henry Weismann,

who as former international secretary of

the Journeymen Bakers’ National Union

had a major role in the passage of the

labor law Lochner had violated—only

one of the many contradictions that

marked his life.

Like Lochner, Weismann was a

German immigrant. As a youth, he had

immigrated to San Francisco, where he

worked as a baker and confectioner be-

fore becoming a member of the Socialist

Labor Party. He also became a member

of the Anti-Coolie League, a group

opposed to Chinese immigration. And

after a brief prison term for illegal pos-

session of explosives, he arrived in New

York and became editor of The Bakers’

Journal, a union newspaper published

in English and German.

But after becoming a master baker,

Weismann opened two bakeries of his

own, sparking what he later referred to

as “an intellectual revolution” that left

him disenchanted with the Bakeshop

Act. And having graduated from Brook-

lyn Law School in 1903, Weismann not

only threw his support to Lochner but

became Lochner’s lawyer.

Approaching Lochner’s case with the

eye of a businessman, Weismann argued

on appeal that the Bakeshop

Act unconstitutionally

interfered with the

right of journeyman

bakers to con-

tract their own

work agree-

ments. It was

an argument

that dove-

tailed with the

“social Darwin-

ism”doctrine of

Herbert Spencer,

whose philosophy

of “survival of the

ttest”—an oversimpli-

cation promoted by Spencer

himself—was embraced by businessmen

of the time.

Weismann’s argument built steam

even with his defeats in New York’s

appeals courts. But at the U.S. Supreme

Court, his argument found its voice

in a 5-4 ruling on April 17, 1905, in

Lochner v. New York. Writing for the

majority, Justice Rufus Peckham de-

clared the New York labor law an un-

constitutional use of state police power

against an individual’s right to contract,

and he declared the law itself a public

health pretext designed to prevent small

independent bakeshops from compet-

ing with larger, often union-afliated

bakeries.

“Clean and wholesome bread does

not depend on whether the baker

works but 10 hours per day or only 60

hours a week,” Peckham wrote. “The

[Bakeshop] act is not, within any fair

meaning of the term, a health law, but

is an illegal interference with the rights

of individuals, both employers and

employees, to make contracts regard-

ing labor upon such terms as they may

think best.”

In a long and careful dissent, Justice

John Marshall Harlan argued that state

laws should be overturned only under

the strictest of constitutional circum-

stances. In a pithier and less-careful

dissent, Justice Oliver Wendell

Holmes Jr. assailed the

majority for bending to

their own economic

ideology a Con-

stitution “made

for people of

fundamentally

differing views.”

He noted that

the individual’s

right to contract

has been routinely

restrained for the

public good “by ev-

ery state or municipal

institution which takes his

money for purposes thought

desirable, whether he likes it or not.”

Even after it was effectively over-

turned in 1937, Lochner endured as a

source of anger and invective among

populists and progressives who found

resonance in Holmes’ concern about an

activist, ideology-driven judiciary. And

when the court changed to favor the

New Deal policies the Lochner court

would have abhorred, laissez-faire con-

servatives came to agree. Q

72

Justice

Rufus

Peckham

Photo by United States Library of Congress via Wikimedia Commons

ABA JOURNAL | APRIL–MAY 2022

72

APRIL 17, 1905

Precedents