George Will Enlists In Campaign To Repeal 20th Century With Defense Of Lochner

George Will has joined the Fox News-led crusade to overturn the 20th century.

In his Washington Post column, Will argued that the Supreme Court “correctly decided Lochner v. New York” and that the opinion remains “relevant to current arguments,” lauding David Bernstein's Rehabilitating Lochner: Defending Individual Rights against Progressive Reform.

The Lochner decision, decided in 1905, struck down a New York State law regulating maximum hours for bakery workers. Will explained:

An 1895 New York law limited bakery employees to working 10 hours a day and 60 hours a week. Ostensibly, this was health and safety legislation; actually, it was rent-seeking by large, unionized bakeries and the unions. Corporate bakeries supported the legislation, which burdened their small, family-owned competitors. The bakers union hoped to suppress the small, non-unionized bakeries that depended on flexible work schedules.

One such was owned by Joseph Lochner, who challenged the law, prevailing in the Supreme Court, 5 to 4. The majority said “clean and wholesome bread” does not depend on limiting workers' hours: Workers are “in no sense wards of the state,” and there is no evidence that baking is an especially unhealthful profession, so the law was an unconstitutional “interference” with an unenumerated right of individuals, the liberty of contract.

The court essentially nullified its decision in 1936, and states and the federal government have since been free to enact maximum hour laws, minimum wage laws, and the like to great public approval. Without such laws there would be no weekend. But according to Will, the Lochner opinion “flowed from bedrock American doctrine” of “liberty of contract,” only to be “reviled” by liberals.

Contrary to Will's mythology, Lochner is in no way a liberal bogeyman.

During his confirmation hearings, Chief Justice John Roberts said the Supreme Court was correct to overturn its “Lochner-era decisions.” Of the opinion itself, Roberts said:

You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law. The judgment is right there.


You can look at that and see that they are substituting their judgment on a policy matter for what the legislature had said.

Indeed seven of the nine current Supreme Court justices have recently indicated that Lochner was wrongly decided in judicial opinions: Justices Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan, in an opinion in Sorrell v. IMS Health Inc., and Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito in Stop the Beach Renourishment v. Florida Department of Environmental Protection.

Will's position, that Lochner represents bedrock American values, even puts him to the right of Robert Bork, who chastised the opinion as “the symbol, indeed the quintessence, of judicial usurpation of power.” Bork wrote that it was “never too late to overrule the line of cases represented by Lochner, because they were unjustifiable restrictions on governmental power.”

Incidentally, Will did not always hold such a rigorous affinity for Lochner. In a 1996 column, he commended the Supreme Court for having “tidied up itself” and reversed some of its past decisions:

In 1905 in Lochner vs. New York, as in similar cases, the court held that a New York law limiting bakers to a 10-hour workday violated the Due Process clause. By 1963, Justice Hugo Black could assert that the Lochner doctrine of ''substantive due process,'' that the court can overturn laws it considers unwise, ''has long since been discarded.'' (Actually, it has long since been smuggled into liberal jurisprudence to support a different social-policy agenda.)

That Will now argues for the “rehabilitation of Lochner” demonstrates that the boundaries of legitimate debate have shifted mightily during the intervening years.