¹ Huntington, Samuel P., The Soldier and the State (Cambridge, 1957)Google Scholar.

² Berns, Walter, Freedom, Virtue and the First Amendment (Baton Rouge, 1957)Google Scholar.

³ The papers of Justice John Marshall Harlan, which are currently in this writer's possession for the preparation of a biography, indicate that the Court originally voted 5–4 to sustain the New York bakers law. Justice Harlan wrote his opinion as a majority statement, only to find that one Justice had changed his mind between the time of the original conference and the final vote. Harlan made only minor changes in his draft and submitted it as the dissent of Harlan, White and Day. See also Butler, Charles Henry, A Century at the Bar of the Supreme Court of the United States (New York, 1942), p. 172Google Scholar.

⁴ For a good summary of the restraints placed upon freedom of contract in cases of infants, married women, violations of licensing requirements, speculation, insanity and drunkenness, contracts in restraint of trade, contracts made on Sunday, violations of positions of trust, fraud, and contracts to accomplish immoral objects, see the 1887 treatise, Bishop, Joel Prentiss, Commentaries on the Laws of Contracts (Chicago, 1887)Google Scholar, Sections 467–549.

⁵ Atkin v. Kansas, 191 U.S. 207 (1903). In upholding this municipal 8-hour work day as within the power of the state, the Court said as to the claim that the provision interfered with the liberty of employers and employees to contract themselves: “The responsibility [for setting the limits to contractual freedom] rests upon legislators, not upon the courts. No evils arising from such legislation could be more far reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people's representatives. We are reminded by counsel that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against merely arbitrary power. That is unquestionably true. But it is equally true—indeed, the public interests imperatively demand—that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably beyond all question in violation of the fundamental law of the Constitution.” 191 U.S. at 223.

⁶ Holden v. Hardy, 169 U.S. 366 (1898). The Court's opinion noted: “The enactment does not profess to limit the hours of all workmen, but merely those who are employed in underground mines, or in the smelting, reduction or refining of ores or metals. These employments, when too long pursued, the legislature has judged to be detrimental to the health of the employees, and, so long as there are reasonable grounds for believing that this is so, its decision upon this subject cannot be reviewed by the Federal courts …. The legislature also recognized the fact, which the experience of legislators in many States has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employees, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength …. In such cases self-interest is often an unsafe guide, and the legislature may properly interpose its authority … [T]he fact that both parties are of full age and competent to contract does not necessarily deprive the State of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself.” And, contracts between buyers and sellers could be regulated by the government to guard against improper labeling and impure goods, even in the Lochner era, and despite the classic laissez-faire principle of caveat emplor. See Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916) and Corn Products Refining Co. v. Eddy, 249 U.S. 427 (1919).

⁷ That the Harlan position, as distinguished from the Holmes view, would not invariably uphold state police power but had some traditionalist “sticking points,” is shown by Coppage v. Kansas, 236 U.S. 1 (1915) and its parallel federal situation, Adair v. United States, 208 U.S. 161 (1908), both striking down statutes making it a crime for the employer to insist upon a term in the industrial contract that employees would resign from a union if a member and not join one during the contract term.

⁸ N.Y. Laws 1897. Chap. 415.

⁹ Harlan's discussion of the unusually unhealthy character of bakery work, from treatises on workers' diseases and the Eighteenth Annual Report of the New York Bureau of Statistics of Labor, was followed by a survey of workingmen's hours in other countries, the comment that the New York law took a “middle ground” between the number of hours which labor demanded should be set and the number employers wanted, and a recognition that Congress and “nearly all of the states” fix work days in certain trying occupations and that the majority of these laws set eight hours as the maximum—all offered in defense of the reasonableness of New York's legislation.

¹⁰ Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768 (1952).

¹¹ Coppage v. Kansas, 236 U.S. 1 (1915).

¹² New York Central R. Co. v. White, 243 U.S. 188 (1917): Mountain Timber Co. v. Washington, 243 U.S. 219 (1917). In the New York Central Railroad case, the Court noted: “[We] recognize that the legislation under review does measurably limit the freedom of employer and employee to agree respecting the terms of employment, and that it cannot be supported except on the ground that it is a reasonable exercise of the police power of the state. In our opinion it is fairly supportable upon that ground. And for this reason: The subject matter in respect of which freedom of contract is restricted is the matter of compensation for human life or limb lost or disability incurred in the course of hazardous employment, and the public has a direct interest in this as affecting the common welfare.” 243 U.S. at 206.

¹³ The change in theory which Mavrinac says took place between Adkins and West Coast Hotel does not emerge from a re-reading of those opinions. It would be hard to write a more direct repudiation of the Peckham-Mavrinac reasoning than Hughes penned in West Coast Hotel: see his discussion of inequality of bargaining position and of public interest in private contract matters, West Coast Hotel Co. v. Parrish, 300 U.S. 379, 398–400 (1937). That labor unions can be found by the majority to be operating in a way which imperils the public interest, and that legislation regulating them will be upheld by the courts under the post-Lochner doctrines is indicated by Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949). American Federation of Labor v. American Sash & Door Co., 335 U.S. 538 (1949).

¹⁴ See Westin, Alan F., “The Supreme Court, The Populist Movement, and the Campaign of 1896,” Journal of Politics, Vol. 15 (1952), p. 3CrossRefGoogle Scholar, and passim.

¹⁵ 163 U.S. 537 (1896).

¹⁶ See Vann Woodward, C., The Strange Career of Jim Crow, Revised Galaxy Edition, (N. Y., 1957)Google Scholar; Westin, Alan F., “John Marshall Harlan and the Constitutional Rights of Negroes: The Transformation of a Southerner,” Yale Law Journal, Vol. 66 (April 1957), pp. 705–709CrossRefGoogle Scholar.

¹⁷ United States v. Carolene Products Co., 304 U.S. 144, 152–154n. (1938).

¹⁸ Southern School News, Vol. 5 (July 1958) p. 1Google Scholar.

¹⁹ As counsel for Oregon in the Muller v. Oregon case, Brandeia accepted the premise of Lochner that limits upon working hours had to have a real and substantial relationship to the health and welfare concerns of the public. In his oral argument to the Court, he stated: “In answer to the question, whether this brief contains also all the data opposed to minimum-wage laws, I want to say this: I conceive it to be absolutely immaterial what may be said against such laws. Each one of these statements contained in the brief in support of the contention that this is wise legislation, might upon further investigation be found to be erroneous, each conclusion of fact may be found afterwards to be unsound—and yet the constitutionality of the act would not be affected thereby. This court is not burdened with the duty of passing upon the disputed question whether the legislature of Oregon was wise or unwise, or probably wise or unwise, in enacting this law.” The question, said Brandeis, is solely whether “legislators had no ground on which they could, as reasonable men, deenv this legislation appropriate to abolish or mitigate the evils believed to exist or apprehended. It you cannot find that, the law must stand.” Quoted in Konefsky, Samuel J., The Legacy of Holmes and Brandeis (N. Y., 1956), p. 91Google Scholar.