Lochner v. New York

  • May 30, 2012

    by Jeremy Leaming

    The arguments lodged against the health care law’s minimum coverage provision have been described by constitutional law experts as radically libertarian or terribly misguided. But during oral argument before the Supreme Court, the right-wing bloc, led by Justice Antonin Scalia appeared eager to endorse the challengers’ arguments against an integral provision of the Affordable Care Act. We’ll likely know sometime in June whether the high court’s conservative wing was indeed persuaded by the challengers’ arguments.

    In a guest post for Balkinization, Rob Weiner, a partner at Arnold & Porter LLP, provides greater detail to the attacks on the health care law’s minimum coverage provision writing they “reflect an effort to codify nostalgia as legal doctrine.” 

    The “most obvious throwback” is the liberty argument, Weiner says. Opponents of the health care law attack the minimum coverage provision as a serious affront to liberty. The minimum coverage provision will require some Americans starting in 2014 to purchase a minimum amount of health care insurance.

    The affront to liberty, Weiner writes “is the right not to obtain insurance – by any other name, freedom to contract.”

    In the Supreme Court’s 1905 Lochner v New York opinion, the majority held that the freedom to contract was “part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.” Weiner notes that Lochner thus barred New York from regulating conditions of some workers. And in its 1923 Adkins v. Children’s Hospital opinion, the Court relied on this so-called freedom to contract to protect employers from adhering to the minimum wage law.

  • January 31, 2011
    Guest Post

    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. The author, Daniel JH Greenwood, is a professor at Hofstra University School of Law, where he researches corporate governance and the role of corporations in our economy and democracy. He co-authored an amicus brief in Citizens United on behalf of the American Independent Business Alliance.
    A year later, Citizens United still looks like the modern Lochner v. New York. This case may well come to symbolize the Court's contribution to our modern Gilded Age and its destruction of the foundations of prosperity and democracy.

    Lochner symbolizes the Old Court's turning the Civil War Amendments on their heads. The Fourteenth Amendment promised African-Americans, and indeed all Americans, the rights of citizenship, equal protection and due process of law. The Court, instead, ruled that American citizens had fought the Civil War in order to forfeit our right to use democratic government to protect ourselves against the arbitrary power of "malefactors of great wealth."

    The Gilded Age's concentration of power and wealth in the hands of a few, symbolized and furthered by Lochner's rejection of basic American values, led straight to the Great Depression. Neither democracy nor market capitalism can long survive if entrenched economic power is permitted to set the rules of competition so that it always wins. When ordinary Americans lacked the power to demand wages high enough to buy the products and services they produced, the resulting shortage of demand nearly destroyed the system.

    Today, we are again in a crisis caused by a similarly radical upward shift of power and wealth. In sector after sector, economic incumbents have amassed enough power to be able to shift the rules in their own favor. We have raised CEO and banker pay, at the direct cost of ordinary employee wages, to the point where our major firms increasingly resemble the world's kleptocracies. The wonder is not that so many have collapsed, Enron-style, into complete corruption or, dot.com and housing-style, into utter incompetence and misallocation, but that so many manage to last so long, emulating the Soviet and Third World autocracies in their fantastically wealthy elites and long slow slides into collective failure.

  • December 20, 2010
    Conservative jurists and legal academics have long railed against so-called "judicial activism," which they claim is defined as legislating from the bench, as opposed to interpreting the law. But Simon Lazarus, in an article for The National Law Journal, writes that if the conservative justices on the Supreme Court invalidate the health care reform law's individual coverage provision, which requires most Americans to maintain health care insurance starting in 2014, they will effectively revive "the doctrinal apparatus deployed a century ago to abort the modern American regulatory state."

    In "Jurisprudential shell game," Lazarus, public policy counsel at the National Senior Citizens Law Center, writes:

    Since Robert Bork, Edwin Meese, Antonin Scalia and their lieutenants founded modern conservative jurisprudence 30 years ago, its core watchword has remained invariant: abhorrence for "activist" judges who "legislate from the bench." To showcase their hostility to activism on the right as well as the left, court-focused conservatives have repeatedly denounced the 1905 U.S. Supreme Court decision Lochner v. New York. Lochner launched and has come to symbolize the notoriously anti-regulatory activism of the first third of the 20th century; the case held that maximum-hours regulation violated employers' and employees' "freedom of contract," a "right" that the five-justice majority divined in the Fifth and 14th amendments' ban on deprivation of liberty without due process of law. Bork called the ruling an "abomination." Meese agreed that the "activist Court of the Lochner era was as illegitimate as the Warren Court." More recently, Chief Justice John Roberts Jr., at his 2005 confirmation hearing, said, "Reading that opinion, it's quite clear that they're not interpreting the law, they're making the law."

    One of the leading opponents of the health care law and its individual coverage provision, Virginia Attorney General Kenneth Cuccinelli (pictured), has promoted his efforts against landmark law, the Affordable Care Act (ACA), as aimed at limiting government "across the board," Lazarus writes.