Males and Hours of Work

Where children and women were not involved, the courts held state legislatures more tightly to the well-defined limits of the police powers of health, safety, morals, and. public welfare. For example, state courts were initially hostile to legislation that set maximum hours of work on public projects. The California Supreme Court, in Ex Parte Kuback ( 1890), struck down a Los Angeles ordinance establishing eight hours as a day's work when performed under contract to the city. Judge Irving G. Vann of New York in 1903 explained that the legislature of that state could not limit the hours of work on city projects because "[we] cannot see that [this law] bears any reasonable

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relation to the public health, safety or morals." ⁴¹ The same year, however, the Supreme Court, speaking through Justice John Marshall Harlan, affirmed the decision of the Kansas Supreme Court that had upheld a state law limiting to eight hours work on public projects. "[I]t cannot be deemed part of the liberty of any contractor," Harlan concluded, "that he be allowed to do public work in any mode he may choose to adopt, without regard to the wishes of the State." ⁴² Thereafter, state laws regulating hours of public works were upheld by the vast majority of state courts.

State and federal courts even accepted statutes regulating the maximum hours of work of male laborers in the private sector as long as they were engaged in hazardous undertakings. The Utah Constitution of 1893, for example, contained a provision directing the legislature to "pass laws to provide for the health and safety of the employees in factories, smelters and mines." ⁴³ Such a constitutional provision was itself indicative of the ends to which reformers would go to provide a basis of constitutional legitimacy for the exercise of the police powers. The legislature promptly passed an eight-hour law and in 1896 the Utah Supreme Court, noting that working conditions in smelters filled with noxious gases constituted a health danger, upheld it. The state supreme court dismissed freedom-to-contract arguments with the observation that even without an explicit constitutional provision the legislation would doubtless have been constitutional under the state's inherent police powers.

The U.S. Supreme Court accepted this position in reviewing the Utah decision. In Holden v. Hardy ( 1898), the justices by a vote of seven to two set forth "the paradigmatic [position] for approving protective legislation, with its holding that special and dangerous conditions justified the intervention of the state." ⁴⁴ The Court dismissed the right-to-contract argument because employer and employee did not stand in a position of bargaining equality. The state could intervene to protect the welfare of whichever party had significantly less bargaining power. The opinion in Holden provided that the legislature had extensive power to decide when such an imbalance existed. Because the police powers were not limitless, however, some degree of judicial inquiry was always necessary, even though the justices did not say so. Their subsequent actions suggested as much.

Many state courts turned to Holden v. Hardy to sustain legislation directed at such groups as street railway workers and miners. Yet there was also resistance. The Colorado Supreme Court in 1899 rejected an eight-hour law for miners as class legislation that violated freedom to contract. The judges found, contrary to Holden, that it was up to the judiciary "to determine what are the subjects upon which the [police] power is to be exercised, and the reasonableness of that exercise." ⁴⁵

The U.S. Supreme Court agreed as well in the most famous (or infamous) of the protective legislation eases, Lochner v. New York ( 1905). The case involved an act that established a ten-hour day and a sixty-hour week for bakery workers. Bakers suffered from "white lung" disease, caused by constantly breathing flour, and baker's leg, which resulted from long hours of standing. The statute, however, presented the Court with as much a union case as an hours case, because the objective of the legislature, among other things, was to bring the wages of nonunion bakers into line with union bakers. Although Justice Rufus Peckham did not broach this issue in his opinion for the Court's bare five-to-four majority that struck down the law, it may help to explain why the Court acted in a way that seemed contrary to its earlier holding in Holden v. Hardy.

The Court's decision demonstrated that the justices were fully prepared to inquire

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into the nature of working conditions as a basis on which to second-guess legislative action. The New York law was impermissible as an exercise of the police powers because, according to Justice Peckham, it was an effort "simply to regulate the hours of labor between the master and his employees, in a private business, not dangerous in any degree to morals or in any real and substantive degree, to the health of the employees." ⁴⁶ Peckham shifted the traditional emphasis in judicial review from a concern with the kinds or classes of governmental powers under review toward the consequences that flowed from the exercise of the police powers. This new formulation of judicial power was intended to aid the Court in sustaining individual rights, in this instance liberty to contract. Just as substantive due process in economic regulation cases permitted the invocation of judicial power to protect the right to hold and use property, so liberty to contract in Lochner emphasized the right of individuals to contract free of state interference.

Of the four dissenters in Lochner, Justice Oliver Wendell Holmes, Jr., was the most important. He was coldly cynical in his evaluation of both human nature and his colleagues on the bench. Holmes argued that over the generations human ideas and the relationship of interests in society changed, and that the law, including the Constitution, had to evolve accordingly. Judges, in Holmes' view, could not mask their preferences by insisting that they mechanically applied law; nor could they merely read their social views into constitutional law. "[T]he Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," Holmes insisted, "[a] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire."⁴⁷

The Lochner decision was in many ways an aberration with limited impact. Judges in places as different as Montana, New York, and Mississippi sustained various hours laws, many of which by the second decade of the twentieth century applied generally to all workers in manufacturing, not just people laboring in hazardous occupations. Even the Supreme Court distanced itself from Lochner, although it refused to overrule itself. In Bunting v. Oregon ( 1917), the high court sustained the opinion of the Oregon Supreme Court that had approved a ten-hour statute that applied to both men and women, even though it had a time-and-a-half requirement for overtime pay, making it a wage regulation.

Date: 2015-01-29; view: 701