Lochner and Child Labor Laws

One of the great oddities of discussions of Lochner v. New York is that the case consistently gets blamed for interfering with child labor laws. A few examples:

After discussing Lochner’s support for freedom of contract, a public policy textbook by Professor Thomas A. Birkland states that “even the most basic child labor laws were often struck down under the Lochner logic.”

Historian Jonathan Rees blogs that if the Supreme Court had continued to adhere to Lochner’s vision of freedom of contract, it would have invalidated the FLSA “which includes the first minimum wage and bans child labor.”

An encyclopedia entry, of all things, claims that after Lochner, the Supreme Court “expanded on the idea of substantive due process to strike down laws … prohibiting child labor.”

There are two oddities here. First, in the only case I’m aware of to present the issue of direct state regulation of child labor to the Supreme Court, the Court upheld the law unanimously. Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913). Given that Lochner v. New York was decided in 1905, it’s quite obviously untrue that the Justices thought that Lochner’s conception of freedom of contract (or “substantive due process”) prohibited child labor laws. The constitutionality of child labor laws was so well-established that advocates for (much more controversial) protective laws for women consistently tried to lump adult women in with children as classes of workers in need to paternalistic legislation.

Of course, the Supreme Court did invalidate federal laws attempting to adopt national child labor rules, though these cases were decided on federalism grounds, not freedom of contract grounds. One could almost forgive various academics for confusing federalism concerns with liberty of contract concerns, but for the fact that by the end of the so-called Lochner era in the late 1930s, every one of the forty-eight states had laws banning and regulating child labor. Unlike the national Fair Labor Standards Act passed in 1938, most of these laws restricted children under fourteen, as opposed to sixteen, though a sixteen-year rule was gradually gaining traction. But it’s really bizarre to read over and over again how “Lochner” prevented child labor laws, despite the fact that Lochner managed to coexist with child labor laws in every state.

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