He applied the “Page 99 Test” to his latest book, The American State from the Civil War to the New Deal: The Twilight of Constitutionalism and the Triumph of Progressivism, and reported the following:
I have never read a word written by Ford Madox Ford, though I have read about him, and always wondered why his parents couldn’t come up with a more original first name. But I appreciate his “page 99 test,” which works perfectly for me. On this page I discuss the case of Lochner v. New York, which is an excellent illustration of the entire thrust of my book—a revisionist account of the progressive and New Deal eras. For over a century progressives and New Dealers (who came to call themselves “liberals”) used this case to claim that the Supreme Court of this period routinely struck down legislation that would benefit the economically disadvantaged. Lochner concerned a New York law that limited the number of hours that bakers could work.Learn more about The American State from the Civil War to the New Deal at the Cambridge University Press website.
Progressive critics of the old constitutional order—law professors like Roscoe Pound and Edward S. Corwin, and politicians like Theodore Roosevelt—claimed that decisions like Lochner typified the turn-of-the-century Supreme Court. Former Justice David Souter claimed that the Lochner legend was “most familiar history” in 1995, and Justice Antonin Scalia echoed this argument a few weeks ago in his DOMA dissent.
More attentive scholars have come to see that Lochner was an aberration. Charles Warren observed this as early as 1913, but the Lochner legend has been very difficult to displace. As a matter of fact, the Court routinely accepted almost any pretext that state legislatures gave for exercising their “police power”—the power to legislate for the “safety, health, welfare and morals” of the people. More representative than Lochner was Plessy v. Ferguson, where the Court accepted Louisiana’s racial segregation law as a public-safety measure to prevent racial friction and race riots—indeed, the state claimed that the act would benefit African-Americans.
Still more recently, scholars have shown that the New York bakeshop act was an example of “class legislation”—an act not for the public good but for the benefit of a special interest or faction. Law professor David E. Bernstein in particular has shown that older, established, and unionized bakers got the state to enact it in order to limit the competition of newer, non-union immigrant bakers (southern and eastern Europeans and Jews in particular). The state was quite explicit on this point, telling the Court that “there have come to New York great numbers of foreigners with habits with must be changed.”
But Lochner is still best known for Oliver Wendell’s Holmes’ dissenting opinion, in which he accused the majority of reading its Social Darwinist laissez-faire economic preferences into the Constitution. This too is wonderfully ironic, because Holmes himself was the only justice on the Court influenced by Social Darwinism. His brethren rather were adhering to the older, classical and Lockean liberalism of the Founders.