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March 02, 2005

The Revenge of Lochner v. New York

The Revenge of Lochner v. New York

The high-water mark of right-wing judicial activism back in 1905: restricting the hours of bakers a day to 10 harms workers by infringing upon their freedom of contract:

Lochner v. New York: MR. JUSTICE PECKHAM, making the statement of the facts, then delivering the opinion of the court:

The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

Liberty of contract relating to labor includes both parties to it; the one has as much right to purchase as the other to sell labor.

There is no reasonable ground, on the score of health, for interfering with the liberty of the person or the right of free contract, by determining the hours of labor, in the occupation of a baker. Nor can a law limiting such hours be justified as a health law to safeguard the public health, or the health of the individuals following that occupation.

Section 110 of the labor law of the State of New York, providing that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, is not a legitimate exercise of the police power of the State, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract, in relation to labor, and as such it is in conflict with, and void under, the Federal Constitution.

Now Lance Knobel and Tyler Cowen point us to a story from last June, in which migrant workers from China's interior are irate when what Justice Peckham calls their "liberty of the person" was infringed by a Nike Corporation desperate to avoid being charged with purchasing from a sweatshop:

Asian Labour News: China: Workers riot for the right to work overtime: I'm quite interested to find that this story hasn't seen the light of day in the English-language press so far.... The following is a summary of the main points from the Ming Pao article on 07 June 2004....

Taiwanese factories in Dongguan [a city between Hong Kong and Guangzhou and a major centre of manufacturing] are facing a problem. According to a news report in the United Daily in Taiwan, over a thousand workers at a factory, which produces goods for big brand names such as Nike, demonstrated for two days and damaged equipment and factory cars. 500 armed police arrived and quashed the riot. Several leaders were arrested.

The main cause for the riot was the limitation on working hours at the factory. The shorter hours have been requested by US companies so as to avoid criticism from various groups on long working hours. However, the mainly migrant workforce want to work longer hours so they can earn more. Consensus had been reached by the US companies, the Taiwanese-invested factory and local government that the maximum working hours per week should be set at 60 hours [which is still a breach of Chinese Labour Law, but less than other manufacturing plants]. However, this reduction in hours was unsatisfactory for the workers and the resulting riot was serious....

Source: 'Dongguan taiqi qian gongren fengchan chaoche jiaban shouru jianshao rebuman 500 jing zhenya [1,000 workers in a Taiwanese enterprise in Dongguan dissastisfied with overtime reductions shut down factory and burn cars, 500 police put down demonstration],' Ming Pao, 07 June 2004.

Posted by DeLong at March 2, 2005 03:10 PM