While I greatly admire Judge Richard Posner’s amazing corpus of work, I’ve noticed in recent pieces that he has a tendency to state propositions as indisputable, absolute truths when they are at least disputable, and sometimes flat wrong. Here is an example.
Posner writes in the California Law Review:
The majority opinion in Lochner is easily forgettable yet well worth rereading in this connection. I quote a typical paragraph:
It is manifest to us that the limitation of the hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff in error convicted, has no such direct relation to and no such substantial effect upon the health of the employé, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employé (all being men, sui juris), in a private business, not dangerous in any degree to morals or in any real and substantial degree, to the health of the employés. Under such circumstances the freedom of master and employé to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.
This is naked policy analysis; nothing in the Constitution, or in precedents that commanded respect, suggests that states can’t be allowed to place a ceiling on hours worked unless justified by a concern with workers’ health. The opinion, which I am tempted to quote in full, is so shallow that Holmes’s one-page dissent says everything that needs to be said to unmask any pretense that the majority was engaged in something that might be called legal analysis.[End Posner quote]
By the time Lochner was decided, the Supreme Court had stated several times, sometimes in unanimous opinions, that there was a general presumption in favor of liberty of contract. The leading case on hours legislation was Holden v. Hardy from 1898. Holden was an extremely influential opinion; I would argue it was significantly more influential during the so-called Lochner era than was Lochner itself. In Holden, a 7-2 majority (Peckham and Brewer, who were the most libertarian Justices on economic issues, dissenting without opinion) upheld a maximum hours law for minors as a proper police power limitation on liberty of contract. In doing so, the court referenced workers’ health as a justification for laws regulating the workplace nineteen times. Peckham, in turn, cited Holden three times in Lochner.
Justice Harlan, who wrote the primary dissent in Lochner for himself and two other Justices, wrote in Lochner that “in determining the question of power to interfere with liberty of contract, the court may inquire whether the means devised by the State are germane to an end which may be lawfully accomplished and have a real or substantial relation to the protection of health, as involved in the daily work of the persons, male and female, engaged in bakery and confectionery establishments.”
In short, Holden stood for precisely the proposition Posner claims was unprecedented [indeed, that precedent didn’t even suggest such a possibility], between Holden and Lochner every Justice on the Court save Holmes agreed that the Constitution protected liberty of contract, and every Justice save Holmes agreed that such liberty could be interfered with by hours laws only if they protected workers’ health (or, contra Posner’s absolute statement, public health). The debate among the Justices (save Holmes) was only about how much deference should be given to a legislative determination that an hours law in fact was targeted at health concerns. What doomed the law in Lochner was that Peckham was able to cite studies from Lochner’s brief showing that baking was not unhealthful compared to other, unregulated professions. Plus, I suspect it influenced the swing Justices that unlike other hours laws approved by the Court, this one had no provision for overtime, making it especially burdensome for employers and, along with its limited scope affecting only one ordinary profession, leading to suspicion that it was “passed for other motives,” as Peckham put it.
There were also plenty of state cases that also applied some variant of the liberty of contract doctrine, some times far stricter than the Supreme Court did.
So I don’t know what Posner requires for precedent to command respect, but the leading precedent on point contradicts what he wrote, much state precedent was consistent with the majority opinion in Lochner, and every other Justice on the Court for at least seven years (and then beyond) agreed with the proposition that Posner finds to be devoid of legal analysis. Meanwhile, he greatly admires Holmes’s opinion, which is more a collection of memorable but flip aphorisms than conventional legal analysis.
UPDATE: Posner versus Posner? Oddly enough, Posner wrote in 2003 in Law, Pragmatism and Democracy: “a now extensive literature demonstrates that [Lochner] was not a lawless case in the conventional sense; it was a plausible though certainly not inevitable application of settled principles.” “Plausible application of settled principles” doesn’t seem consistent with Holmes having “unmask[ed] any pretense that the majority was engaged in something that might be called legal analysis.”