The only class which is distinctly arrayed against the court is a class that does not like courts at
any rate, and that is organized labor. That faction we have to hit every little while … - William
Howard Taft
Introduction
Constitutional scholarship that examines the class conflict of the Progressive Era almost
invariably focuses on the development of “freedom of contract” jurisprudence and its chilling
effects on labor reform and state economic intervention, which was most notoriously typified by
the Supreme Court’s decision in Lochner v. New York.
Lochner is widely considered the
emblem of an activist court run amok. The traditional depiction of this decision to nullify a
maximum hours law passed by New York to protect the health of bakers casts the majority as
devout believers in laissez-faire economics who ignored established constitutional principles,
and the suffering of the working class, by striking down protective labor legislation during this
era based on their own economic preferences.
This criticism of the Lochner Court began within the decision itself with Oliver Wendell
Holmes’ acid dissent. Holmes accused his brethren of unprincipled behavior in service of
laissez-faire economics by deciding the case, “upon an economic theory which a large part of the
country does not entertain. … The 14
th
Amendment does not enact Mr. Herbert Spencer’s Social
Subsequent scholars would pick up on Holmes’ frustration, and would paint the Court
as an intruder into the legislative sphere, manufacturing rights that reflected their own upper
1
Letter to Horace Taft dated May 7, 1922. Quoted in Henry F. Pringle, The Life and Times of
William Howard Taft : A Biography (New York ; Toronto: Farrar & Rinehart, 1939), 967.
2
198 U.S. 45 (1905). Freedom of contract jurisprudence developed out of a substantive reading
of the due process clauses of the Fifth Amendment and the Fourteenth Amendment. Due
process, under this reading, not only mandates procedural protections of life, liberty and property
from government regulation, but also marks certain fundamental liberties as untouchable by
standard government regulation. The freedom between individuals to make contracts without
government interference was read into the due process clause as one such fundamental liberty by
the courts during the Lochner era, permitting the nullification of many wages and hours laws that
had ostensibly been passed by state legislatures to protect workers.
3
198 U.S. 45, 75.
2
Convention