lochner v. new york

Or, some Monday links on flavors, figurative flags and fails

I mean, it would be impossible to have a business like this in the States, a wood-burning fire – illegal, the meat – illegal, the dog – illegal, the cheese sitting out uncovered – illegal. Basically, everything that makes this place good would be illegal in the United States.
Anthony Bourdain: No Reservations ep. 1 – 01 France: Why the French don’t suck (Jul. 2005)

The other day, Brandon highlighted (the review of) a cultural history book, one that documents the postwar shift of cultural gravitas from Paris to New York. So, the talk is about the big league, the respectful duo of countries that gave us, among other things, modern constitutionalism and an understanding of the natural hue of fundamental rights. Here, I venture to present a sincere, if arbitrary (and somewhat superficial, since I never learned French, to my mother’s disappointment) selection of other Franco-American bites, that shadowed greater trends, or even shaped them.

160 years ago, chef Charles Ranhofer, a Frenchman, traveled to the US for a second time. A year and a false dawn at another premise after, he was hired at Delmonico’s in New York, an already established name. There, he proceeded in making it the definite flagship of American fine dining for the next 30-35 years.

A note issued by the restaurant at the time chef Ranhofer joined the team (1862) – source

His achievements include the invention of renowned dishes, innovations in the dining business model and a massive Franco-American culinary encyclopedia (The Epicurean, 1894, complete with nearly 1000 dishes and thorough guidelines for the proper tables/ menu setting, depending on the occasion). The story fits well in the Gilded Age picture, though I would guess not at front center.

Our own Escoffier (Los Angeles Times)

My pastry trilogy came a full circle only last year, having started some ten years ago: a Mississippi mud pie, a cheesecake (early 2010s, both under the guidance of my wife) and a tarte Tatin (May ‘20 lockdown, unsupervised, our then nearly-5-year old provided merry company). Of the three creations, the final was the most refined, as deserves to a French recipe from late 19th century. Like, it needed some real – if basic – technique, not the average ingredient gathering I was used to. It was also a mild failure. I followed a modern take, one to safely blame without retort. Will try again, someday. There are relevant recipes aplenty, though not in its contemporary Epicurean.

Deconstructing tarte tatin, the classic French dessert (National Geographic)

The Gilded Age was nearing its end when the famous Lochner v New York decision was delivered (1905). The Supreme Court struck down a New York state law on regulating working hours, as a breach of the liberty of contract, which was protected under the Due Process Clause of the Fourteenth Amendment. A few decades later, in United States v Carolene Products Company (1938), an interstate trade case, the Court lowered the standard of review for economic legislation, effectively demoting economic liberty vis-à-vis the other personal liberties.

Both decisions refer to the food industry, bakeries and milk manufacturers respectively. They hold vast importance and warrant further study (for starters – note to self – judicial activism in Lochner, individual rights in Carolene).

As a certain minstrel in a certain fantasy realm would have it, the truth of these decisions became something bigger than the facts. The two cases work as handy banners of the paradigm shift from “unrestrained economic liberty” to “state interventionism”, which happened as right/ left-wing totalitarianisms convincingly challenged the prewar liberal order. Liberal-minded thinkers from the two sides of the Atlantic tried to revitalize the liberal creed in the interwar years. Some of them convened at Paris – few months after the Carolene decision – to honor the visit of the American journalist/ author Walter Lippmann, a notable critic of the New Deal.

There were deep differences, but also a strong agreement on the threat posed by central planning and some tentative overlapping on the perceived failings of “old” classical liberalism and, interestingly, the potential of the state in enhancing personal freedom by pursuing limited social goals. The – middle – way forward needed free markets in a solid, impartial legal frame, which would enforce competition and even provide for a modicum of social justice. By one account, it was during this meeting that the term “neo-liberalism” took root (other ideas included “left-wing” or “constructive” liberalism. Chicago theorists – not represented at the Colloque Lippmann- had previously written about “positive” liberalism), though the term is older. The resolution led to nowhere in particular, since World War II broke out shortly after. It is nonetheless considered a kind-of precursor to the Mont Pelerin Society, the well-known organization founded after a conference in 1947, at the invitation of Hayek.

The neoliberal position is nicely summarized by Milton Friedman (who was present at the 1947 proceedings) in a short piece from 1951:

Neo-liberalism would accept the nineteenth century liberal emphasis on the fundamental importance of the individual, but it would substitute for the nineteenth century goal of laissez-faire as a means to this end, the goal of the competitive order… The state would police the system, establish conditions favorable to competition and prevent monopoly, provide a stable monetary framework, and relieve acute misery and distress.

Neo-Liberalism and its Prospects (Hoover Institution)

The term can also be found in scholarly papers from 50s-60s, but upon closer inspection they mostly focus on its German variant, “ordoliberalism”, which was closely associated with the “social market economy” – the postwar platform that defined West Germany (though voters could hardly tell what it exactly was).

My understanding is that, at some point postwar, the French involvement dwindled. Also, some German theorists fell from grace in the Mont Pelerin Society context, while US membership increased in number and clamor. The whole approach tilted closer to classical liberal/ libertarian (another note to my – European – self, Edwin van de Haar offers precious nuance regarding such terminology in a fresh post) and away from the “free market, strong state” convictions of Colloque Lippmann. However, Hayek retained cordial relations with the University of Freiburg – where the original ordoliberal theses formed.

Then the shade of neo-liberalism faded, only to be invoked as a nebulous catch-all characterization of free market policies a couple of decades later, almost devoid of its competitive and social security chops. It got a life though, since it was fleshed in the founding Treaties of the EU of the 50s. The institutional apparatus of the Union smugly radiates “free market within the properly defined lines” (the US influence is not be discounted, of course. Case in point, competition law).

EU, as with the Colloque: The French grabbed a coffee with the Americans and threw a party. Then, they took a step back as the Germans stopped being shy and hit the decks.

Back to the kitchen. Late 60s and into the 70s, gastronomic developments trace the retooling of society-at-large. That was the time various “new” national cuisines rose, with the French Nouvelle cuisine once again leading the way and the New American Cuisine taking clue from it (in Greece we usually talk about the “(new) urban cuisine” of that period, as the country experienced a rapid urbanization wave in the preceding decades).

Fantasy unchained: A cooking center in 1980 as imagined in 1973 – source

In the meantime: Political turmoil, be it protests or terrorism, there go Bretton Woods arrangements, productivity flattens, environmental concerns kick-in, enter competition from Asia, human rights against the Soviet Block, university studies expand, telecommunications and transport improve, oil crises, the lights go out in Britain and elsewhere, inflation runs, and so on and so forth. The next decade coincided with the emergence of new political leaderships across the West, as the turbulence discredited the previous guard.

The consensus got a drift for privatizations, deregulation and liberalization of international transactions, with US and Britain adhering to it (though to say that they indeed rolled-back the size and scope of State is questionable). This time, the Nobel Memorial Prizes in Economic Sciences awarded to Hayek (1974) and Friedman (1976) served as a flag (or a scarecrow) for the transition to market-based prescriptions.

The endgame was meant to play out in France. In May 1981, Mitterrand won the presidential election on a pretty standard socialist agenda. The program of nationalizations, hiked taxation, capital controls, grants and subsidies run its course till 1983, when the bad results in deficit, employment, inflation and the exchange rate – underlined by an equally poor performance in local elections – prompted a turn to anti-inflationary rigor and a realignment with more market-oriented policies (Spain and Greece, btw, more or less copycatted the French experience).

In a twist in the myth, three Mitterrand guys even went to assume head posts in international bodies, like the IMF (a member of the unholy trinity of the “Washington Consensus”), and promote capital account liberalization from there.

Endnote: The No Reservations show of late Anthony Bourdain had a role in our family’s inconsistent knack for things cooking/ baking. While writing this, I found out that a documentary on the man’s life just premiered at the Tribeca Film Festival.

‘Roadrunner: A Film About Anthony Bourdain’ Review: The Insatiable Life and Enigmatic Death of a Foodie Superstar (Variety)

Encore: “To France”, Mike Oldfield’s cover by power metal band Blind Guardian, from their The Forgotten Tales album (1996). Pas mal.

In the highly competitive world of most misunderstood Supreme Court decisions, Lochner v. New York sits high on the list. The reason is simple enough: it has undergone a transcendent ascent to the world of abstraction, where it now embodies the platonic essence of a black-robed cadre of old, straight, white men hankering to smash the plebeian’s face in the dirt.

Yesterday, the Intelligencer–a publication of New York Magazine–dragged out these old tropes with the galumphing rhetoric typical of someone simply parroting a battered playbook with no real concern for its accuracy. The article is entitled, “Conservatives Want a ‘Republic’ to Protect Privileges.” Its basic premise is to push back against the anti-democratic tendencies of those who oppose direct, untrammeled democracy.

The article lists several “limitations on democracy to justify and even expand privilege.” The second references the conservative legal movement’s supposed attempt to resurrect the “Lochner era,” in order to protect the wealthy from democratic majorities.

First, off, it’s wrong to say that the “conservative legal movement” wants to revive Lochner. Both progressive and conservative jurists are generally united in their rejection of Lochner. Robert Bork, a thoroughly majoritarian conservative, railed against the case, as did Justice Antonin Scalia. Granted, this is because the conservative legal movement, sadly, has largely embraced the progressive juridical project of the 30’s, which was devoted to weakening the judiciary in order to shove the New Deal down the nation’s throat.

Second, Lochner‘s many detractors almost never grapple with the facts of the case. As a result, they frequently misunderstand it. Here’s what actually happened. In the early 1900’s, New York enacted a nitpicky law that saddled bakeries with an avalanche of finite requirements–limits on ceiling heights, limits on the kind of floor, and the demand to whitewash the walls every three months, among other things. But the provision dealt with in Lochner was this: “No employee shall be required or permitted to work in a biscuit, bread or cake bakery or confectionary establishment than 60 hours in one week or more than 10 hours in any one day.”

A Bavarian immigrant named Joseph Lochner who owned a Utica bakery was criminally indicted for violating this law. Aman Schmitter, another immigrant, lived with his family above the bakery and worked for Joseph. Aman happily worked over sixty hours a week in order to care for his family and increase his skills, and he said so in a sworn affidavit.

It is undisputed that New York’s law was not about health, safety, or protecting workers, though New York tried to say so at the time. Rather, New York passed the law at the behest of powerful bakeries and baker unions in a patent attempt to crush small, family-owned bakeries that relied upon flexible work schedules. It gets worse–the law intentionally targeted immigrant bakeries in particular, which tended to be of the small variety that leaned on overtime. The state’s legal brief contained a detestable line that progressives today would certainly associate with Trump: “there have come to [New York] great numbers of foreigners with habits which must be changed.” This is the law that progressives who hate Lochner are defending.

In a 5-4 decision, the Supreme Court thankfully struck down this law that was passed to serve the powerful and crush a weak immigrant population. Put that way, it seems startling that anyone today would wish to stand up for this piece of anti-immigrant, protectionist garbage.

But then again, Lochner is no longer about Lochner. It’s about rejecting a mythical “Lochner era.” Progressives believe that Lochner represented an entire ecosystem of turn-of-the-century jurisprudence in which corrupt judges were smothering the will of the people wholesale. Turns out that era never existed. Law professor David Bernstein has examined old court records concerning state exercises of their police power during that time period and found that there simply was no lengthy period in which courts were whack-a-moling every piece of social legislation that dared to lift its head.

To the extent that courts of that era did strike down social legislation under the liberty of contract, they did so not to serve the wealthy, but to protect weak minorities–which is of course why robust judicial review exists in the first place. For instance, the Illinois state supreme court struck down a deeply misogynistic law limiting women’s maximum work hours. The Court used the same liberty-of-contract reasoning as Lochner, arguing that women “are entitled to the same rights under the Constitution to make contracts with reference to their labor as are secured thereby to men.” And in Bailey v. Alabama, the wicked Lochner Court struck down a Jim Crow law that created a presumption of fraud when a worker quit after getting an advance payment. The law was aimed at penalizing black workers–an attempt essentially to revive peonage. Do progressives really want to own up to disagreeing with these “Lochner era” precedents? Somehow I doubt it.

Lochner did not, as Lochner‘s enemies love to claim, replace the legislature’s judgment with the judgment of the Court. Instead, the Court was willing to look skeptically at the legislature’s motives and demand that the legislature do its work and show that a law burdening a basic right is necessary. The New York law failed that test spectacularly.

Of course, Lochner‘s legacy does demand that courts counter democratic will when it conflicts with fundamental rights. Alexander Bickel famously called this the counter-majoritarian difficulty, something that has preoccupied the judiciary for a century. If you really care about minorities, though, you might consider Judge Janice Rogers Brown’s insight: “But the better view may be that the Constitution created the countermajoritarian difficulty in order to thwart more potent threats to the Republic: the political temptation to exploit the public appetite for other people’s money–either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.”

In any case, if progressives continue to take a polly-anna view of unfettered democracy despite the evidence, they should at least bother to get the facts right on Lochner.