Transcript: Worker's Rights

NARRATOR: Just three years into Holmes's tenure, a case came before the Court that highlighted stark divisions among the justices, drawing the battle lines for a quarrel that would play out over the next 30 years. And Oliver Wendell Holmes girded up for the second big fight of his life.

In 1897, the state of New York had passed a law limiting the number of hours bakers could be required to work. And when Utica bakery owner Joseph Lochner refused to abide by the law, he was twice convicted, fined $50, and ordered to jail until he paid up. Instead of paying, Lochner challenged the maximum-hours law, forcing a fight that finished in the United States Supreme Court.

When the case finally landed in the Old Senate Chamber in 1905, New York defended its law: states had been ceded "police power" to ensure the public health and safety of their citizens. But the Court struck down the New York State maximum hours law.

POWE: In Lochner, which is a law that imposed a maximum 60 hours a week for bakers to work, Peckham asks, well, does this law have anything to do with health? And he concludes no, it doesn't have anything to do with health. Bread is bread. And while bakers die younger than others, somebody's gotta die first.

Therefore the law isn't part of the police power. Instead, it is trying to regulate the employer/employee relationship, and this is not subject to the police power. This is the liberty of contract that individuals have the right to engage in.

KOBYLKA: What the Court's saying is that when government tells me that I can't work 80 hours a week as a baker, government is infringing on my liberty to contract my labor. Government is infringing on me as a person telling me what I can do with myself.

NARRATOR: "Liberty of contract" was an idea straight from Stephen J. Field, teased from the soft phrases of the Fourteenth Amendment. It went to the heart of free market ideals. When employers and employees were negotiating terms of a contract, government almost always had to stay clear. That laborers might not have the same leverage as owners was unfortunate -- but not within government's power to fix.

KLARMAN: Where does this liberty of contract get? Where does the Court find it in the Constitution? They find it in the Due Process Clause, which says, "Government shall not deprive people of life, liberty, or property without due process." And the Court says, included in that liberty protection is a right for liberty of contract. It's a very creative reading. It's basically a made-up doctrine. There's a lot of pressure on judges to reach results that they regard as just, and they're willing to stretch and strain with the text if necessary. And in 1973, a lot of judges felt like a woman's right to abortion was pretty important, and the Court found it in the Constitution. In 1905, a lot of people thought that a right to contract was important, and the Court found it in the Constitution.

NARRATOR: John Marshall Harlan -- joined by two other justices -- dissented in Lochner. The state of New York had presented compelling facts as to the health hazard to bakers. That was good enough for him.