Liberal certitudes continue to dissolve, the most recent solvent being a robust new defense of a 1905 Supreme Court decision that liberals have long reviled — and misrepresented. To understand why the court correctly decided Lochner v. New York and why this is relevant to current arguments, read David E. Bernstein’s “Rehabilitating Lochner: Defending Individual Rights against Progressive Reform.”
Since the New Deal, courts have stopped defending liberty of contract and other unenumerated rights grounded in America’s natural rights tradition. These are referred to by the Ninth Amendment, which explicitly protects unenumerated rights “retained by the people,” and by the “privileges or immunities” and “liberty” cited in the 14th Amendment. Progressivism, Bernstein argues, is hostile to America’s premise that individuals possess rights that preexist government and are not fully enumerated in the Constitution. This doctrine stands athwart liberalism’s aspiration to erase constitutional limits on government’s regulatory powers.
An 1895 New York law limited bakery employees to working 10 hours a day and 60 hours a week. Ostensibly, this was health and safety legislation; actually, it was rent-seeking by large, unionized bakeries and the unions. Corporate bakeries supported the legislation, which burdened their small, family-owned competitors. The bakers union hoped to suppress the small, non-unionized bakeries that depended on flexible work schedules.
I must admit that I find it surprising that an entire ideological movement exists that pines for a past time that none of its adherents were alive to see, but that's pretty much how modern conservatives feel about late-19th Century America. They're sort of like people who go to Renaissance Fairs, except they celebrate Social Dawrwinism instead of swords and sorcery. I wonder if Will dresses up as Andrew Carnegie or J.P. Morgan when he attends his little Gilded Age Reenactment Society gatherings?
At any rate, Will really doesn't like the fact that we have 40-hour work weeks, child labor laws or minimum wage. He thinks that America was a freer place when employers were able to fire you without compensation after losing your hand in a machine and he's really pushing for a Lochner revival to get us there. Check out his disdain for the SCOTUS dissenters' reasoning:
The main dissent radiated progressivism’s statism and paternalism: Government may limit working hours lest workers damage their “physical and mental capacity to serve the State, and to provide for those dependent upon them.”
Yeah, God forbid the government lessens the chance that some poor bastard gets the black lung at the age of 32 after working 80-hour weeks in a coal mine. Give me liberty or give blue-collar people death!
Progressives celebrated Holmes’s gift to government of almost untrammeled police powers. He said courts should defer to economic regulations because the Constitution does not “embody a particular economic theory.” Thus began liberals’ distortion of Lochner as expressing the court’s commitment to laissez-faire doctrine.
I get the feeling that Will wouldn't have complained when the federal government used its untrammeled police powers to break up railroad strikes. Tyranny in defense of moneyed interests is no vice, after all.
You really have to wonder if the 40 percent of people who consider themselves "conservative" in this country really know what they've signed themselves up for. I tend to think they'll have a change of heart once George Will makes it legal for their bosses to fire them for refusing to work 90-hour weeks without overtime and/or suffering crippling injuries on the job.
