¹ 198 U.S. 45 (1905).

² In his recent edition of a set of Essays on Constitutional Law, Robert G. MeCloskey seems to have chosen Lochner and the majority opinion by Justice Peckham almost unconsciously as the epitome of a period in the Court's history when it was concerned “with the protection of economic man against governmental encroachment.” pp. 9, 84, 91 (New York, 1957). One reason for its symbolic use may be that it marked the first time that the Court, in a case not involving interstate relations, enforced liberty of contract theory against a state enactment based on the police power and in so doing overrode the highest court of a state. Freund, , “Limitations of Hours of Labor,” 17 Green Bag (July, 1905), p. 412Google Scholar. Indeed, it was the first time that the Court had overturned a piece of state protective labor legislation. Brandeis, Elizabeth, “Labor Legislation,” in History of Labor in the United States, 1896–1932 (New York, 1935), p. 554Google Scholar.

³ “The Logic and Rhetoric of Constitutional Law,” Journal of Philosophy, Psychology and Scientific Method, Vol. 15 (1918), pp. 655–656Google Scholar.

⁴ 347 U. S. 483 (1954) and 349 U. S. 294 (1955).

⁵ As Elizabeth Brandeis notes, op. cit., p. 661, prior to Holden v. Hardy, 169 U. S. 366 (1898), the Court had had no chance to take a position on the constitutionality of state labor legislation, much of which dealt with such matters as the form of payment to workers. See for example the leading case of Godcharles v. Wigeman, 113 Pa. St. 431 (1886). Such legislation had been declared unconstitutional when brought before the state supreme courts, and under the Judiciary Act as it stood until 1914 no case could be appealed to the United States Supreme Court if the highest state court had held the act unconstitutional; or to put it accurately, if the highest state court had sustained a claim based on a federal right. In 1914 the Act was amended to permit appeal regardless of whether the state court held the act valid or invalid. 26 U. S. Stat. 1156 and Act of December 23, 1914, Ch. 2, 38 Stat. 790, 2 U.S. Comp. 1916, 1580.

In considering the nature of the Court's activities in the labor relations field, several facts might well be kept in mind: First, the Court was never faced, until just before World War II, with the question of whether a state or federal statute was constitutional which imposed minimum wage scales on the work of adult males (excluding the case of public works employment, where the problem is quite distinct). See Millis, H. A. and Montgomery, R. E., Labor's Progress and Some Basic Labor Problems (New York, 1938), p. 325Google Scholar. Second, few cases came to the Court over attempts by legislative bodies to impose maximum hour limits on the amount of laboring done by a worker. In so far as legislation of this type did exist, it was either simply legislation declaring the sentiment of the legislature about the proper length of the working week, without any attempt at enforcement, or it was legislation designed (the legislation involved in Bunting v. Oregon, 243 U.S. 426 (1917) is an exception) to apply only to a small number of workers employed by public utilities or in a few occupations like drug-store operation. See Millis and Montgomery, op. cit., pp. 517–518. Third, with a few exceptions, the campaign for minimum wage legislation was led by socially conscious middle-class groups like the National Consumers League and was either actively opposed or given only nominal support by organized labor. E. Brandeis, op. cit., pp. 506–507. Hour legislation for men was likewise opposed by the dominant forces in the American Federation of Labor. These craft unions preferred to rely on collective bargaining rather than on the pleasure of aspiring politicians or “sycophantic” department officials. Ibid., pp. 555 ff. A characteristic example of such suspicion of politicians was expressed at the time of Lochner by a member of the Locomotive Firemen's union writing in its journal: “… too much legislation enacted in behalf of labor in the United States is subsequently declared unconstitutional owing to some technical error in language or punctuation which is generally intentionally made by the author.” Locomotive Firemen's Magazine (May, 1905), p. 787Google Scholar.

⁶ See the review of this development and an analysis of its underlying philosophic assumptions in McCloskey, Robert Green, American Conservatism in the Age of Enterprize (Cambridge, 1951)CrossRefGoogle Scholar, especially Chapter 4. See also the study by Fine, Sidney, Laissez-faire and the General Welfare State: A Study of Conflict in American Thought, 1865–1901 (Ann Arbor, 1956)Google Scholar, passim.

⁷ See Field's dissent in the Slaughter House cases, 16 Wall. 36 (1873) and his opinion in Barbier v. Connolly, 113 U.S. 27 (1885). At the state level, see the leading case of Godcharles v. Wigeman, 413 Pa. St. 431 (1886); Millet v. People, 117 Ill. 294 (1886): State v. Goodwill, 33 W. Va. 188 (1889); Commonwealth v. Perry, 144 Mass. 117 (1891); Knoxville Iron v. Harbison, 183 U.S. 13 (1901); and St. Louis Iron Ry. v. Paul, 173 U.S. 404 (1889). For a fuller description of these preliminaries see Haines, Charles Grove, “Minimum Wage Act for District of Columbia held Unconstitutional,” in the Texas Law Review (December 1923)Google Scholar reprinted in National Consumers' League, The Supreme Court and Minimum Wage Legislation (New York, 1925), pp. 46–67Google Scholar. See also Pound, Roscoe, “Liberty of Contract,” Yale Law Journal, Vol. 18 (May, 1909), pp. 471 ffCrossRefGoogle Scholar. and Hand, Learned, “Due Process of Law and the Eight-Hour Day,” Harvard Law Review, Vol. 29, p. 501 (May, 1908)Google Scholar.

⁸ National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

⁹ Muller v. Oregon, 208 U.S. 412 (1908) was the first time that the “scientific brief” was used by counsel in argument before the Court. In Lochner, however, Justice Harlan had set out at great length essentially the kind of data that later were found in such briefs. Some labor spokesmen criticised the way in which the state's case in Lochner had been presented. See the American Federationist, which, commenting on the decision said, “We have reason to believe that the case as presented on behalf of the state of New York might possibly have been improved upon, and perhaps with a different result.” pp. 363–364 (June, 1905).

¹⁰ See point four in the brief prepared by Louis Brandeis and Josephine Goldmark and presented to the Court in the October 1914 term in the cases of Stettler v. O'Hara and Simpson v. O'Hara (Nos. 507 and 508), decided as 243 U.S. 629 (1917), in which the Lochner principle was accepted that a law restraining the right to purchase or sell labor would not be sustained if the Court could see that it had no real or substantial relation to public health, safety or welfare, or that it was ‘an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family’. See also the discussion of this point from another aspect by Konefsky, Samuel J., The Legacy of Holmes and Brandeis, pp. 84 ff. (New York, 1956)Google Scholar which has recently come to my attention.

¹¹ In the Court's opinion in Thornhill v. Alabama, 310 U.S. 88, 103–104 (1940).

¹² 243 U.S. 426, 433 (1917).

¹³ See Kales, Albert, “Due Process,” in Yale Law Journal, Vol. 26 (May, 1917), p. 33Google Scholar.

¹⁴ Elizabeth Brandeis observed that in administrative actions to set the specific minimum wage for women and minors in a given industry under the terms of reference of state statutes, actual cost of living, so far as it could be determined, was only one of the elements entering into the decisions. Prevailing wages, the size of the proposed increases, and their possible consequences on business conditions, she said, necessarily influenced the members of the wage boards. Op. cit., pp. 522n–527. It is clear from Miss Brandeis' history of the experience with minimum wage establishment by administrative procedure in several states that “even on the basis of very conservative (personal) budgets which pared expenses to the bone, the minimum wages set in many states did not quite provide for the ‘necessary cost of living.’ On the whole the standard set up in the minimum wage statutes was not quite attained.” Ibid., p. 530.

¹⁵ See Elizabeth Brandeis, ibid., pp. 522–527, 530.

¹⁶ Millis and Montgomery, op. cit., p. 310.

¹⁷ Brief in Stettler v. O'Hara and Simpson v. O'Hara, October Term (1916). See Powell, T. R., “Oregon Minimum Wage Cases,” Political Science Quarterly, Vol. 32 (June, 1917), p. 306CrossRefGoogle Scholar.

¹⁸ Jaffe, Louis has noted, in his perceptive study on “The Judicial Universe of Mr. Justice Frankfurter,” 62 Harvard Law Review, Vol. 62, pp. 357–412CrossRefGoogle Scholar, this hesitancy of Frankfurter to think in terms of direct ends of the constitutional process. Whatever ends there are, the liberty of the individual, his right to search for happiness, are indirect; the process of government and the social process are the important things, not the substantive fruits of that process.

¹⁹ 208 U.S. 412 (1908).

²⁰ Ibid., p. 426.

²¹ Fuller, Brewer, Peckham and McKenna. Brown had left the Court by the time of the Muller decision.

²² 261 U.S. 525 (1923).

²³ Sutherland said, “But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller case, has continued ‘with diminished intensity.’ In view of the great—not to say revolutionary changes—which have taken place since that utterance, in the contractual, political and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come, almost, if not quite, to the vanishing point.” To accept the doctrine, he said, that women of mature age require or may be subjected to restrictions on their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances “would be to ignore all the implications to be drawn from the present trend of modern legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships.”

²⁴ 263 U.S. 418 (1923).

²⁵ Quoted from Mencken, H. L., Book Review, American Mercury, Vol. 20 (May, 1930), p. 122Google Scholar, by Samuel Konefsky, op. cit., p. 303 n.

²⁶ Ibid., p. 296.

²⁷ In the debate of July 27, 1937. Noted by Justice Jackson in his dissenting opinion in the portal-to-portal case, Jewell Ridge Coal Corporation v. Local 6167, United Mine Workers, 325 U.S. 161, 177 (1945).

²⁸ Congressional Record, House Debates, Vol. 83 (May 23, 1938), p. 7310Google Scholar.

²⁹ 253 U.S. 206 (1920).

³⁰ Reproduced from American Federationist (no date) in the Cigar Makers Official Journal, p. 5 (September, 1947)Google Scholar.

³¹ Ibid., pp. 3–4 (February, 1947).

³² American Federationist, p. 13 (April, 1947)Google Scholar.

³³ “Legislation Is Not the Answer to Problems of Industrial Relations,” in American Federationist, p. 8 (March, 1947)Google Scholar.

³⁴ Carroll, Molly Ray, Labor and Politics (Boston, 1923), p. 79Google Scholar.

³⁵ Hearings Before the Committee on Labor and Public Welfare, 80th Congress, 1st Session, on S. 55 and S. J. Res. 22, Part 2, Feb. 19, 1947, p. 1136.

³⁶ P. 1 (July 8, 1957).

³⁷ The seeming inability of union organization to gain footholds in such industries as the laundry and retail trades with which most of the actual administrative regulation of women's wages was concerned obviously played a considerable part in influencing the justices who eventually formed the majority upholding such legislation. See West Coast Hotel v. Parrish, 300 U.S. 379 (1937).

³⁸ 243 U.S. 526 (1917).

³⁹ 313 U.S. 299 (1941).

⁴⁰ See the last of the original “white primary” cases, Smith v. Allwright, 321 U.S. 649 (1944), holding that persons could not be denied the right to vote in a primary election on account of race or color where the primary election was an integral, indeed determinative, part of the electoral process. Various state efforts to circumvent this rule by trying to impute to parties the qualities of a private club and by other expedients have since also been rebuffed by the Court. See Rice v. Ellmore, 165 F. 2d 387 (4th Cir. 1947), cert., den., 333 U.S. 875 (1948); Baskin v. Brown, 174 F. 2d 391 (4th Cir. 1949); Davis v. Schnell, 336 U.S. 933 (1949), where requirements of understanding and explaining any article of the State Constitution were voided because vague and uncertain; Terry v. Adams, 345 U.S. 461 (1953), where a pre-primary primary excluding Negroes was invalidated.

⁴¹ Missouri ex. rel. Gaines v. Canada, 305 U.S. 337 (1938), Sipuel v. Oklahoma 332 U.S. 631 (1948), Sweatt v. Painter 339 U.S. 629 (1950), McLaurin v. Oklahoma State Regents 339 U.S. 637 (1950), Brown v. Board of Education of Topeka 347 U.S. 483 (1954), and same, 349 U.S. 294 (1955).

⁴² Ibid., at p. 295.

⁴³ The “sociological” brief, which we may accept as roughly analogous to the old scientific brief of the labor cases, did not make its appearance in any of these significant cases until Sipuel v. Oklahoma. The briefs are similar in form and content, with more or less the same citations of social relations studies in each. Typical is the brief prepared by the American Federation of Teachers as amicus curiae in McLaurin v. Oklahoma. Citing such works as Kurt Lewin's, Resolving Social Conflicts, and Deutscher, M. and Chein's, I., “Psychological Effects of Enforced Segregation,” in Journal of Psychology, Vol. 26 (1948), pp. 259–287CrossRefGoogle ScholarPubMed, the brief urges the Court to take into account the scientific sociological conclusion that “at no stage of development should any barriers be erected to prevent the individual from moving from a narrower group to a larger one, particularly barriers of race” (p. 14); and that “any restriction, particularly in the form of segregated and discriminatory schooling, which prevents the interplay of ideas, personalities, information and attitudes, impedes a democratic education and ultimately prevents a working democracy.” (p. 17) The brief also asks the Court to note and accept as pertinent to the judicial decision the scientific view that “from infancy to adulthood the most satisfactory personality development occurs when the individual: a) feels he is accepted and wanted by his community; b) secures aid and encouragement in his activities; c) has the satisfaction of contributing to the group without too many frustrating experiences; d) receives the approval of the group or some evidence of recognition.” (p. 13) Similar to this is the evidence introduced in the early stages of Brown v. Topeka in the United States District Court. There a line of social relations experts, all with advanced degrees from good universities in this country and abroad testified to the demonstrated ill effects of segregated education on both the minority and dominant elements. The testimony of Mrs. Louisa Holt, holder of the Ph.D. in Social Relations from Radcliffe College, is typical:

Q. (on cross-examination): You mean it's a bad thing, for example, for a poor boy, because he is poor, the whiplash of poverty makes him work harder to rise higher; that is a bad thing? (sic)

A. I mean that can be at the expense of healthy personality development, self-realization of the most basic fundamental and appropriate kind for that person, and we have plenty of evidence of people who burn themselves out with various emotional or perhaps psychosomatic diseases in whose cases that can be attributed to this overweening striving for competitive success, to overcome feelings of inferiority. (Brown v. Board of Education of Topeka, pre-trial conference, October 30, 1951 in United States District Court for Kansas, p. 173).

When Brown v. Topeka reached the Court in the October Term 1952 the principal sociological brief was in the form of an appendix to the brief of the appellants. Signed by some of the outstanding students of sociology in this country, it was entitled, “The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement.” It characterized itself as a “summary of the best available scientific evidence relative to the effects of racial segregation on the individual … a consensus of social scientists.” The statement noted that “there are, of course, moral and legal issues involved with respect to which the signers of the present statement cannot speak with any special authority … There are, however, also factual issues involved with respect to which certain conclusions seem to be justified on the basis of the available material and scientific evidence.” Its conclusions were similar to those in the briefs and testimony noted above. The distinction between these briefs and the earlier ones on labor, which came to show the extent to which a particular legislative or administrative action was already accepted, not by scientists, but by the actors in the process, is evident.

⁴⁴ 347 U.S. 483, Note 13, 4 (A).

⁴⁵ Witness, for instance, the recent petition of a New York City girl to a court to require the school board of that city to allow her to attend a school not within her normal geographic area which would give her the benefit of association with students not of her race, an advantage not available to her in the school to which she is assigned because the “normal geographic district” happens, it seems, to be almost completely Negro. New York Times, p. 1, 16, July 18, 1957Google Scholar. Said the girl's mother, “Patricia will not have a chance to interrelate with other racial groups.”

⁴⁶ Perhaps the best analysis of the views of the principal drafters of the Constitution is to be found in Holcombe's, ArthurOur More Perfect Union (Cambridge, 1950), pp. 33 ffCrossRefGoogle Scholar. An interesting analysis of these views and the contrasting one of Charles Pinckney is found in Hartz's, LouisThe Liberal Tradition in America (New York, 1955), pp. 83–85Google Scholar.

⁴⁷ Op. cit., pp. 23 ff. Madison states the point thus: “The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other …” Federalist, No. 10.

⁴⁸ It is this artificial construct and its articulation that provokes attempts to analyze the constitutional decision-making process in terms of interest groups. In a sound constitutional society such speculation is an analysis of appearances. It is when groups take on a real existence and are not simply artificial entities led by professionals estranged from the nominal membership of the groups that it is possible to look with any meaning on politics as the interplay of these groups.

⁴⁹ The attempt to capture the total loyalty of the members seems to be almost inherent in the nature of union bureaucrats. For an interesting discussion of the motives and ideals of union bureaucrats see Wilensky, Harold L., Intellectuals in Labor Unions (Glencoe, Ill., 1956)Google Scholar, especially Chapter 7.

⁵⁰ Here is the theoretical support for the Congressional restriction on political contributions by labor unions and for investigation to insure democratic operation of labor union government.

⁵¹ 314 U.S. 160 (1941).