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Unformatted text preview: Libertarianism and State Regulation The period 1905-1937 is sometimes called the Lochner era in American constitutional law, after the case of Lochner v. New York . The defining characteristic of the period is that the Supreme Court’s decisions about economic regulation in effect use a libertarian philosophy. Government regulation of markets—including labor markets—is seen as intruding on basic constitutional liberties. To achieve a better understanding of libertarianism, then, we want to see how it operated in constitutional practice. 1. The Lochner Era In 1905, Lochner came to the Supreme Court, asking that the Court overturn his conviction under a New York statute that prohibited employers from requiring or permitting bakers to work more than 60 hours a week, or more than 10 hours a day. The Court agreed. The law was, it said, an unconstitutional abridgment of Lochner’s liberty of contract. In the ensuing 32 years, the Court overturned more than 200 federal and state economic regulations, also as unconstitutional abridgments of liberty of contract . 1 The Court overturned minimum wage laws 2 ; federal and state laws against "yellow dog contracts" (contracts requiring employees to pledge not to join a union as a condition of employment) 3 ; price regulation 4 ; and restraints limiting entry into an industry or type of work. 5 In short, the Court endorses an economic philosophy of relatively unregulated markets. The doctrine expressed in these decisions—sometimes called "economic due process”—has three main elements: Justice , Spring 2006—2 1. The Court interprets the 5th and 14 th Amendments—which bar government from making laws that deprive "any person of life, liberty, or property without due process of law"—as requiring stringent protection for market liberties, in particular the liberty to "purchase and sell labor" (53). 2. These liberties are important, but not absolute, and can be regulated for a limited set of purposes, including the "safety, health, morals, and general welfare of the public." “Public morals” is on this list, so the Court does not endorse a libertarian constitutional philosophy. But on economic regulation, the Court is libertarian in its elevation of economic liberties to a position of basic constitutional importance. 3. Because the liberties are so important, the Court examines economic legislation to ensure that the means used by the legislature to further its legitimate purposes are well-designed to achieve those purposes—to see that there is no way to achieve the purpose that is less restrictive of market choices. 2. NY law may be a labor law, and what’s wrong with that? Using this line of analysis in Lochner , the Court considers two purposes that the New York statute might serve: as a "labor law" or a "health law." Interpret it first as a labor law. This means that the purpose of the law is to regulate the terms of the labor contract (say, wages, hours, working conditions), rather than simply enforcing terms that the parties agree to. The idea behind a rather than simply enforcing terms that the parties agree to....
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This note was uploaded on 02/27/2012 for the course POLS 101 taught by Professor Nemnich during the Fall '09 term at Boise State.
- Fall '09