familydog
06-25-2008, 12:11 PM
The concept of "liberty of contract" is very popular and highly regarded in conservative and libertarian circles. While it was around well before, the 1905 Supreme Court case Lochner v. New York (http://en.wikipedia.org/wiki/Lochner_v._New_York) crystallized this notion as a Constitutional right. Yet was the court correct? If we are to take a strict interpretation of the Constitution, does that leave room for "liberty of contract"? Here are two sides of the issue:
Judge Andrew Napolitano in his book Constitution in Exile argues that court was correct in their ruling:
"Rooted in a Natural Law mind set, the Supreme Court clearly viewed the protection of the freedom of contract as a God-given right. So much so that the Lochner case, in which the Court fully articulated the 1905 doctrine of liberty of contract (which was introduced in chapter six) came to define the time.
In Lochner, the Supreme Court declared unconstitutional a New York State law that limited the number of hours a baker could work. How dare the state in the land of opportunity try to steal the liberty of a laborer to work and a small businessperson to employ him? That is precisely what the New York legislature attempted. And this theft is precisely what goes on everyday in the twenty-first century America. But the Lochner court, one hundred years ago, would have none of it!
The court held that the 'state had no reasonable ground for interfering with liberty by determining the hours of labor for individuals who are free to work as they choose.' It found that the law interferred with freedom of contract, it did not serve a valid police power, and it thus violated the Fourteenth Amendment's Due Process Clause because it took away property (the fruits of the agreement) without a trial.
Firmly, the Court established that the 'freedom, or liberty of contract was a basic, fundemental right protected by the liberty and property provisions of the Due Process Clause of the Fifth and Fourteenth Amendment.' As a natural right, freedom of contract recieved the greatest judicial protection by the Constitution." --p 108.
Contrast this opinion with that of law professor Christopher Schmidt in his article "Revitalizing the Quiet Ninth Amendment: Determining Unenumerated Rights and Eliminating Substantive Due Process."
"In Lochner v. New York, n12 an owner of a bakery was convicted under a New York state law that prohibited employers from requiring or allowing their employees to work in excess of a sixty hour work week, or more than ten hours a day. n13 The Court overturned the conviction finding that entering into an employment contract was a substantive right under the Fourteenth Amendment and constituted a protected liberty interest. n14 The Court's legal trick turned the procedural command of the Due Process Clause - that life, liberty, or property could not be taken without sufficient procedural safeguards - into a substantive form of due process wherein unenumerated rights could be based. n15
The Court's assertion that the right to enter into an employment contract was protected by the Fourteenth Amendment was inaccurate because the amendment does not explicitly provide for such a protection. n16 The Court "manufactured a constitutional right ... out of its substantive formulation of due process." n17 The decision, devoid of a textual foundation, stands as a startling example of judicial intervention into the political choices of the legislature; thus, it serves as a cautionary tale of the inappropriate exercise of judicial power. n18 Lochner effectively immortalized the substantive due process mechanism that is still the standard for analyzing claims regarding unenumerated constitutional rights today. n19"
Any thoughts? I'm more inclined to believe Schmidt's argument. I find it ironic that a court case that so many strict Constitutionalists hold so dearly, is arguably the case that cemented the downward spiral of unenumerated rights to the Constitution.
Judge Andrew Napolitano in his book Constitution in Exile argues that court was correct in their ruling:
"Rooted in a Natural Law mind set, the Supreme Court clearly viewed the protection of the freedom of contract as a God-given right. So much so that the Lochner case, in which the Court fully articulated the 1905 doctrine of liberty of contract (which was introduced in chapter six) came to define the time.
In Lochner, the Supreme Court declared unconstitutional a New York State law that limited the number of hours a baker could work. How dare the state in the land of opportunity try to steal the liberty of a laborer to work and a small businessperson to employ him? That is precisely what the New York legislature attempted. And this theft is precisely what goes on everyday in the twenty-first century America. But the Lochner court, one hundred years ago, would have none of it!
The court held that the 'state had no reasonable ground for interfering with liberty by determining the hours of labor for individuals who are free to work as they choose.' It found that the law interferred with freedom of contract, it did not serve a valid police power, and it thus violated the Fourteenth Amendment's Due Process Clause because it took away property (the fruits of the agreement) without a trial.
Firmly, the Court established that the 'freedom, or liberty of contract was a basic, fundemental right protected by the liberty and property provisions of the Due Process Clause of the Fifth and Fourteenth Amendment.' As a natural right, freedom of contract recieved the greatest judicial protection by the Constitution." --p 108.
Contrast this opinion with that of law professor Christopher Schmidt in his article "Revitalizing the Quiet Ninth Amendment: Determining Unenumerated Rights and Eliminating Substantive Due Process."
"In Lochner v. New York, n12 an owner of a bakery was convicted under a New York state law that prohibited employers from requiring or allowing their employees to work in excess of a sixty hour work week, or more than ten hours a day. n13 The Court overturned the conviction finding that entering into an employment contract was a substantive right under the Fourteenth Amendment and constituted a protected liberty interest. n14 The Court's legal trick turned the procedural command of the Due Process Clause - that life, liberty, or property could not be taken without sufficient procedural safeguards - into a substantive form of due process wherein unenumerated rights could be based. n15
The Court's assertion that the right to enter into an employment contract was protected by the Fourteenth Amendment was inaccurate because the amendment does not explicitly provide for such a protection. n16 The Court "manufactured a constitutional right ... out of its substantive formulation of due process." n17 The decision, devoid of a textual foundation, stands as a startling example of judicial intervention into the political choices of the legislature; thus, it serves as a cautionary tale of the inappropriate exercise of judicial power. n18 Lochner effectively immortalized the substantive due process mechanism that is still the standard for analyzing claims regarding unenumerated constitutional rights today. n19"
Any thoughts? I'm more inclined to believe Schmidt's argument. I find it ironic that a court case that so many strict Constitutionalists hold so dearly, is arguably the case that cemented the downward spiral of unenumerated rights to the Constitution.