displaced persons and refugees, will soon have the opportunity to exercise their right to elect their leaders. elections can take place in those controlled areas as soon as possible. okay? thanks a lot, everybody. all persons having business before the honorable supreme court of the united states admonished to give their attention -- >> "landmark cases," c-span's special history series produced in cooperation with the national constitution center. exploring the human stories and constitutional drama behind 12 historic supreme court decisions. >> number 759. petitioner versus -- >> we'll hear argument number 18, the roe against wade.

>> quite often in many of our decisions are ones that the court took the fight unpopular. >> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who have helped stick together because they believe in a rule of law. welcome to "landmark cases." our series looking at 12 of the most important cases in the supreme court's history. we learn more about the people and the issues behind them. tonight, we're going be talking about the case of lockner vs. new york, 1905, one of the most controversial cases of the supreme court. the story of a banker from utica, new york, in an case that defined the era for the next 35 years. let me introduce you to our

guests -- important in our country's history. randy barnett is georgetown university law school, professor. author of a book called "restoring the law and constitution: the presumption of liberty." he's argued before the supreme court. randy barnett, thank you for being with us. >> great. >> paul kens actually wrote the book on locker in, his book, "economic regulations on trial," his home base is texas states university where he teaches political science. thanks. well, i'm telling people they should be interested in this. why don't you explain why, both of you. why is this case important? >> well, the case has become a symbol in -- a political symbol. it was made into a political symbol by teddy roosevelt when he ran for president in 1912. it was about how roosevelt claimed that the court had overreached and overstepped its bounds to block progressive legislation from being enacted at the state level. ever since then, it's been a political flashpoint. it was made a political flash its point in a presidential campaign.

>> political flashpoint for which side? >> well, roosevelt claim e eed laissez faire economics. he was extolling holmes as the modicum of what just should be when -- he put him on the court when he was president, and then he's running to be re-elected president in 1912. he elevates holmes and elevates this case which he called the -- called the bake shop case, not lockner, the bake shop case, to a political sailians it didn't have until that campaign. this was the battle between the progressives, arguing for increasing state regulation, and eventually federal regulation of all kinds of economic activities and those who favored a more free market economic system who believed that the constitution protected the liberties that the court does protect in lockner. >> paul kens, your book calls

this one of most controversial decisions of the supreme court. what made it so? >> for two reasons. one of those reasons was, as randy had said, it had an economic element to it. it was a flip between two visions of what the country should be. one that kind of focused on labor and focused on community, and it focused on democracy. the other which focused primarily on capital, focused on individual liberty, and individualism and liberty. that's one reason. as randy also said, the second reason that went alongside was a dispute about who should make the decisions about those states. and lockner vs. new york, the supreme court said it should make the decisions about those debates. >> and specifically what did the court decide? what was the framework, what they were asked to look at in this case? >> they were asked to look at the constitutionality of a provision of a larger statute called the bake shop act. the bake shop act was the

regulation of how it should be operated. and section 110 of the bake shop act basically limited the number of hours that an employee could work the bake shop to ten hours a day and 60 hours a week. that was the maximum they would be allowed to work under the statute. so the court was asked to decide whether this was a valid exercise of the state police power, or whether it was a violation of the liberty that's protected by the due process clause which says no person shall be denied, life, liberty, or property without due process of law. they decided it did violate the due process laws. >> we're going to go back to the history of time and learn more about the condition that were faced in this era that gave rise to the new york state assembly passing the bake shop law. this is a case that you saw has one foot firmly planted in the gilded age and another in the progressive area. we'll watch this and have you talk more about the conditions and what was happening in the united states around this time. let's watch. >> okay.

>> locknerv. the state of new york was all about bakery conditions in the state of new york at the turn of the 20th century. at that time, bakery workers worked in underground cellar bakeries, much like this one, where they had to toil for many, many hours every week, producing bread to feed a vast and growing city. at that time, there were about 2,500 or more bakeries in new york city. an incredible number. and the bakery workers would have to come down into these cellars and essentially spend their lives here. the ceilings of the bakery are relatively tall, high. most bakeries were maybe six, seven, eight-feet tall. they were hot. they were humid. there were pipes which dripped sewage and other things on to the floor. this floor which you see is tile, would actually probably be made out of dirt or wood.

so it always was soggy, dirty. utensils were never cleaned because they had no hot water at the sink here. they would scrape the spatulas and bread-making equipment. but nothing would ever be clean or sanitized. then here we come to the oven. this is an oven from about the turn -- [ inaudible ] the baked bread would have been stored somewhere around here, and the baked bread also would have been covered with a thin layer of coal dust because that

was what the atmosphere of the bakery was. and then you add to that the fact that there perhaps were vermin running around and cats to catch the vermin. they would find a nice row of warm loaves, and they sit on them and sleep on them. conditions in these cellar bakeries were not the most sanitary by any moneys either for the products or for the workers themselves. >> so paul kent, what do you want people to know about what was happening in the united states at the turn of the century? >> well, the turn of the century, as i said, moving from the gilded age to the progressive era, the united states had already entered into a mechanized industry business. rather moving from a farming business and one that was local from an economy that was local and farming to one that was industry and national or international.

certain people benefitted from that, and person people didn't. one of the things that happened is the big cities sprun up -- sprung up, lying new york and chicago were examples. new industries, one clearly in the tenement areas, the industries were like the clothing industry, the tobacco industry, and as it turns out, the baking industry. this clip is a great clip, but it's one of those things that a video clip is worth a thousand words. where he's standing looks a lot better than i imagine a bake shop would have looked, a bake shop would have looked in the lockner era, 1905. basically, they were just dirt floors. there weren't sewers overhead, there were sewers in the ground that were sometimes pipes, sometimes wood. sometimes they were open. rats ran freely, and so did roaches. bakers worked exceedingly long

hours and exceedingly difficult work. it wasn't as difficult as a lot of work during that time, it's true. but the title of my first chapter, by the way, is "not like grandma used to bake," and i'm proud of that. it's not like grandma used to bake. they were handling 140 to 2 hundred-pound sacks of flour, dumping and shoveling them with coal shovels. it was hard work. it was dirty and filthy and difficult work for hours. >> it wasn't just difficult work for the bakers. it was also the public health was -- was endangered by the conditions that these people were working in because the bread wasn't very sanitary. what was also happening in the country that people were beginning to look at the public health and public safety? >> i think this is a good time after that clip to talk about the bake shop act and what the legislature of new york did to address the conditions that were so well described in the video. the bake shop act had a number of sections, sections 110

through 115, and i'm going to head the headings, not all the details. section 111, drainage and plumbing of buildings and rooms occupied by bakeries. 12, requirements as to rooms, furniture, utensils, manufactured products, the one that said the floors have to be cement or tile. number 13, washrooms and closets, sleeping places, number 14, inspection of bakeries. it established an inspection regime to make sure the others were being taken care of. and notice of requiringal tra l alterati alterations, you had to say if you were making changes. these were very detailed regulations. you know where i got this from? this is attached to the majority opinion in the lockner decision because none of those sections i've summarized were challenged as unconstitutional. and in the lockner case itself, the court says there's absolutely nothing unconstitutional about any of these hasty laws. they're all perfectly constitutional. so the very conditions that are being complained of in that

video were being addressed by hasty law, and the constitutionality of that hasty law was not called into question even by the lockner court. >> what was called into question? >> one provision that got dropped into the statute separately from the process that produced the hasty laws added by the bake shop unions which was the maximum hours law i mentioned at the top of the show. it was added to the section. it didn't come about through the same legislative process to say in dilgz addition to all the ha regulations, woeshs can't work more than -- workers can't work more than ten hours a day or 6 hours a week. >> let me interject something. that provision wasn't added later, it was before -- it was checked afterwards. what happened was the bake shop act was passed in its whole 124-0 in the house 3, 0 -- 30-0

in the state. the reason the governor's personal secretary found that they used the word "person" in the act rather than employee. he was afraid that the act would be found constitutional because it applied to bake shop owners as well as employees. they voted on it a second time, spoifl that provision -- specifically on that provision. something like 130 -- 130, 135 legislatures and one governor signed off on that specific provision. >> that's true. i think paul also brings up an important point. the provision regulated the maximum hours of the workers but did not regulated the maximum number of hours of the bakers themselves, the owners, who also worked in the same conditions that the workers did. they were allowed to work longer than ten hours a day and more than 60 hours a week.

a reason why the court became spacious of the provision, after saying all the other health and safety rules were okay. >> it's time to introduce a character that will be important later as well as this early stage. henry weissman. who was henry weissman, and what did he have to do with the passage of new york's bake shop law? >> henry weissman's an interesting character. i don't know how this has happened to me, but usually when i work on research, i choose somebody who's hard to follow. he's not really famous, but he's famous enough that you can find bits and pieces about him. what i did learn is -- he's a german, a german national. he was a baker in germany, and he landed in california first, in the united states, where in 1886 he joined the league which was an anti-chinese organization. and sometimes violent organization. he ended up being put in jail for six months for possession of

-- of explosives. soon after he was released, he came to new york where he was hired as the editor of "the baker's journal," which was the international bakers and confectioners union's journal. >> question about the unions. were they just really starting to organize? >> in new york especially. throughout the united states at this time -- remember, we're talking 1895 now, not 2005, which makes a lot of difference, by the way. unions in the united states were not very well organized at this time. the first unions started in the earliest couple -- two decades after the civil war. there weren't unions before then. they were usually specific like the locomotives for railroads. national unions didn't start to take shape until the later -- later in the century. what's important is the first thing that they organized around was standardizing the workday. workers worked from day to

night. they didn't choose -- remember, one thing that people don't understand about this case is workers were paid by the day or were paid by the week. usually by the week and usually at the time, by 1895, about $12 a week. the amount of time they worked during the daytime, during that day, was up to the employer. there was no bargaining about it. the employer set those hours. and those hours were pretty darn long. in fact, in 1881, the bakers were on strike in new york. and what they were striking for was a 12-hour day. think about that. their improvement was going to be a 12-hour day. they usually worked six to seven days a week. >> we're going to take you to the new york state stoassembly tell you more about how it was passed. first, i want to tell you how to be part of our program. we'd very much like questions or comments about these cases. it helps us understand what aspects of the history of this you'd like to learn more about.

if you're watching us in the eastern or central time zones, 202-748-8900. if you're watching in the mountain or posk time zones, 202-748-8901. dial those numbers carefully, please. you can also send us a tweet, and if you do, to@cspan and #landmarkspaces. and finally a conversation about the lockner case on our facebook page. you're welcome to be part of that, as well. with all that, let's take you to the new york state assembly for a history lesson on how the bake shop act was passed. >> when the bake shop reform bill was introduced in 1895, bakers from the east side were on strike to demand shorter hours and better conditions. we're in the assembly chamber, the new york state capitol building, where the bake shop act of 1895 would have been

debated and passed. it was a time when unions were just beginning to gain influence. however, most of them preferred to use striking and organizing as tactics instead of working directly with the legislature because they believed it would take less time and was less expensive. three major factors influenced the adoption of the bake shop act. for one, the volatile politics of new york state. the government had recently transitioned from majority democrat and a democratic governor to republican governor. and both houses of the legislature had republican majorities. the republicans were at the time interested in increasing the government involvement and were very reform minded. the democrats were divided. there were pro-reform democrats,

but there were also many still that represented the tammany hall interests. the second factor was an expose in the new york press about the terrible conditions and n ba-- bake shops, conditions that were not sanitary and definitely harmful for the workers themselves. after that expose was published in september of 1894, the legislature was be business sieged with petitions and pamphlets and letters. many from prominent citizens and many from members of the clergy decrying the terrible conditions in bake shops and urging the legislature to do something about it. february 12th, 1895, a republican assemblyman introduced the legislation. it was debated and passed with a very wide margin. in fact, it was 90-0. not all members being present.

it went on to the senate and was passed by an equally large margin, 20-0. governor levi p. morton signed the law into law may 2nd of 1895, just two weeks before the end of the assembly session. >> paul kens, it's an interesting story about the impact of the newspaper article. muckraking press to influence public opinion and, therefore, push the legislature into passing the legislation. will you talk more about that? >> yes. i never quite answered your question about henry wiese meis and that's important, too. in 1894 when he came to the bakers union, he took over. he didn't do it formally. he wasn't elected but basically took over the bakers union. he apparently was charismatic, fluent in german and english, ambitious and smart. 1894 was the same year, by the way, that there was a tenement

house committee. there were several throughout the 1890s studying the conditions of the tenement slums. as it turns out, i don't think weissman had much to do with starting the process of this bill getting passed in the senate. i think it was an offshoot of the tcommittee. and edward marshall was in the clip and took up the idea of the bake shops being one of those kinds of slum businesses that th they were trying to solve the problems. when he put that article in the press, that he was the editor of the press, by the way. when he put that article in the press, that kind of caused the attention to be drawn but it was the elders that got involved rather than the unions. >> did it work? did the legislation impact the conditions at that bakers and

bakeries were working in? i don't know. do you know -- >> i heard that once before and looked it up. with respect to the bakers themselves, it did and didn't. by 1913, most bakeries in new york were -- most bakers were working ten hours a week roughly. that was mostly because of collective bargaining. it was the union bakers that worked ten hours a week. with respect to health, it was a different question. health was hard to tell because all i could find were the records of the factory inspectors. they would report that the number of inspections they make and the number of violations they find. on the other hand, by 1913, the factory inspectors calling for complete prohibition of new tenament house bakeries. i'm thinking maybe they didn't

work. >> i'm going to follow occupy one thing. i was going mention the union role. you'll notice that most union shops are already working ten hours. so the law is aimed at nonunion shops. now why would the unions want to invest scarce resources in benefiting a law to members who are not members of their union? usually because they're trying to address competition to union-organized shops, whatever they may be. the same reason why, for example, they support ed maximu hours and minimum wage laws for women. unions in those days were all white and generally all male. so they -- we have to think unions areal tr aal -- were alt. the shops were not pro-union and were not easy to organize, and the unions didn't like them much. why would you restrict -- how

would you get a competitive advantage by restricting their maximum hours? if they're small enough to man the hours, you have to man the ovens pretty much around the clock. remember the dunkin donuts commercial? time to get up to bake the doughnuts, because it's a small business. the small mom and pop shops couldn't afford workers the way the larger industrialized bake shops could. if you have shift workers, you can work eight-hour shifts. if you have one or two employees, they have to teamwork longer hours. -- they have to work longer hours. it was a way to unionize or organize ba organize bakeries to suppress the mom and pop shops. >> on twitter, a viewer asks -- how much did loaves of bread cost relatively, and how much of that was profit? and also wants to know were the bakers generally also the owners? >> that depends. i don't know if they were owners and don't know if that was profit.

with respect to bakers being owners, the answer is complicated because there were two kinds of industries. it also addresses the question of unions. one of the industries was the cracker industry. it was unionized and big -- it became monopolized and nanabisc. and the other was the bread-making industry, even in 1910 -- i can't remember the figure -- but something like 95% of bakeries weren't recognized. now as to whether they were owners or not, i think it depends on where the bakery was. if the bakery was a small bake flee a small town, probably owners with workers. if they were pickawayeribakerie tenament houses, they were worker. >> and we've got a number of callers on the line. let's hear questions.

we'll begin with patrick in mt. kisco, new york. you're on. >> caller: good evening. i would like to ask mr. barnett to comment on two points. as you know, the rental homes, junior wrote the dissenting opinion in lockner. i'm sure you're also aware, justice holmes is one of the most web sitely cited u.s. supreme court justices in history. principally i believe for his clear and present danger opinion in "shank vs. the united states." and i would like to contrast justice holmes with your book, "the structure of liberty." you emphasize the relationship between libertarianism and classical liberalism. would you say that as you indicate in your book, the private adjudication and law with market forces is the only legal system that can provide adequate solutions to problems of interest and power? and do you believe justice

holmes would sign on to that today? >> thank you. it sounds like it could be a masters thesis. could you find a short answer to a complicated question? >> it complicated question is based on a reading. i can tell an accurate reading of my book "the structure of liberty: rule and justice and law." the caller has read this book. he has successfully applied the book to this particular question. but right now, what we're really concerned about is what the u.s. constitution provides. not what some alternative legal system i talk about in that book would provide, and whether the constitution in the 14th amendment in particular would be consistent with these hasealth d safety regulations or inconsistent. that's what this program is about. >> andre is in baltimore. you're on the air, andre. >> caller: good evening. first of all, i'd like to thank c-span for putting this show on. and what i want -- my question for your guests is, did the supreme court rule in west coast hotel versus parish, overrule

the court's ruling in lockport? >> it effectively overruled it because it rejected the whole idea of liberty of contract, which we haven't talked about yet. it also rejected the -- it would also kind of follow what holmes said about the constitution being for people of different minds. in other words, it rejected the idea -- this is holmes's view -- that the case actually placed laissez faire capitalism and socialism into the constitution. >> ed is in danbury, connecticut. what's your question? >> caller: i was wondering if the law it an anti-immigrant element. it seems as though the uncontested elements of the law would drive undercapitalized bakeries out of business. and taking away a business opportunity for immigrant that, you know, they could use what skills they had. >> you're nodding your head. was there an anti-immigrant element? >> that wasn't the reason i was nodding my head. i was nodding because that was a

response to one of randy's earlier statements. that is that even those provisions of the act that were unchallenged as being constitutional had the tendency to drive small businesses out of business. i think it's a good thought that it might have had an anti-immigrant connection to it. i wouldn't know. >> and david bernstein had an element called "rehabilitating lockner." i'm a fan. this is another book. and david talks about the anti-immigrant drive, particularly anti-germans, very much distrusted, and there was a lot of anti-german sentimensent. we know the anti-irish sentiment, not in the bakery businesses. and the jews and germans doing most of the baking in new york. yes. however, having said that, and agreeing with the caller and

paul, the small bake shop laws and safety hauswere upheld because they were health and safety laws. they were consistent with the lockner's approach to the due process clause. >> let's meets one of those germ -- meets one of those german bakers who was affected, and that's joseph lockner. we'll hear about his story from his great grandson. >> joe lockner's bakery probably wasn't the tafrget for the bake shop act passed by new york state legislation, but it was certainly impacted by it. joseph lockner was born in bavaria, germany, in 1863. he came to the united states at age 24 and eventually ended up in utica, new york, and opened up a bakery. they made cakes and cookies and breads and things like that. i have a cousin who talked about how their uncle joe, joe lockner was their uncle, would come to their house every sunday and

would bring all kinds of sweets. they talked about how delicious they were. i know later in life, the bakery was thriving, and joe brought up a city block in utica and had the first car in the city, as well. in in of the old family documents, we've come across the contract firm, 1896, that was a co-partnership agreement between my great grandfather, joseph lockner, and mr. schmittter. the contract is 98% to joseph lockner and remaining 2% to schmi schmidtter. i think it's a way to try to get around the bake shop act. after joe had been arrested and took the case to court, every baker in america donated a dollar to the legal defense fund. my mother always told me that growing up. i think it was a test case.

the reason joe would make a sympathetic defendant, he was a hardworking immigrant from germany. his bakery was in the first floor, not the basement, like a lot of bakeries in that time period. was also very clean. that's what i was always told growing up, maybe not typical of bakeries in that time period. >> do you want to start? >> yeah. i want to talk about the germans a little bit. there was a lot of anti-german sentiment. it led to another famous case you're probably not including in your case called "meyer v. nebraska." it was a case in which a local statute prohibited the teaching of german in grade schools. that's how anti-german sentiment was. the same court that said the maximum hours claw did not satisfy that, said the restriction on the teaching. german also failed and was unconstitutional under the due process clause. in part because it deprived the

people that did german instruction their livelihood and lacked the law that the maximum hours did. and the case that comes out of the lockner era is considered good law today. it's not a case that's part of the bad cases. yet, it was still decided by the same lockner court or similar lockner court on the same basis that locknerv. new york was decided. and it involved anti-german sentiment. >> you got to love our viewers. one tweeted in, looked up on line, retail prices of food stuff, circa 1900, a pound, loaf of bread cost 17 cents. how hard to know how much a familiance income that was. what do you want to tell us about how joseph -- joe lockner found himself at the center of this legal action? was this his idea to pursue this legally? was it unusual that he would have gotten arrested for his violatio

violation? >> no, it wasn't only unusual because the state factually inspector only had -- factory inspector only this h three inspectors. they even got weissman into the act because they got him to do some of the inspecting right after the bill was passed. >> so for the entire state of new york including all the bakeries in new york city -- >> yeah, and focused on new york city. that might be another reason that this would have been unusual. i don't know. i wish i would have looked into joseph lockner more when i did the book. one thing i did say was he was probably surprised to find himself in court with criminals on the day that he was indicted for the thing he was indicted for the law. i think he was a hard-headed man. i think it was a test case as his great grandson says. i don't think it was set up. this was another case earlier called in re jacobs. and it involved tobacco

manufacturing, done if the slums, usually in the home of people living in the tenement houses -- >> cigar -- >> that's what it was called. it was done in the slums. sometimes the whole family working on it. sometimes they had a hired hand living in the same tobacco they were working on. interestingly enough, jacobs, the fellow charged with a law prohibiting that, had two rooms. unusual. but the more unusual thing was that he was represented by william ebhart, at that time called prince of the american bar. and was one of the men who had defended andrew johnson when he was impeached. kind of curious that this cigar maker could end up with one of the top lawyers in the nation representing him. that wasn't the case in lockner. lockner had a regular lawyer representing him who made serious mistakes as we can talk about later. >> we'll go to the next part here, he take it to the new york

court system. he appeals his conviction under the bake shop law. what -- talk about -- >> and it was a criminal conviction. i think he was actually incarcerated for it. i'm not sure, but i think that's true. >> fined $50 the second time. $25 i think the first time -- >> i think he didn't want to pay. i think that's why he might have had to go to jail. you had to go to jail unless you paid the fine. >> what can you tell us about the pursuit of it in the sdmourts. >> -- in the courts? >> i think paul is better to answer that. >> if he was visibilities convi. he refused a plea. his attorney said he refused to plea because the act he was charged with didn't constitute a crime. it was just a vague statement of not pleaing. i think that's because he always intended to take it to the appeals court. that would be the only reason that i can think of that he would do that except just if he was hard-headed. it went to the appellate decision of the supreme court of illinois which -- i mean of new

york which is actually the first level of appeal in new york. and there the conviction was upheld by a vote of 3-2. and there was the first time that his attorney, william mackie, raised the issue of liberty of contract. he used the terms "right to pursue a lawful profession" in his brief. so it went 3-2. then he appealed to the next level of the new york court. at that level, which is the new york court of appeals, at that level, they won by a vote of 5-4 -- no, 4-3, i'm sorry. a majority of the judges in new york decided that the law fell within the police bar. >> the locke -- lockner law. next we'll go to the new york state appeals courtroom to learn about that part of joe lockner's story. >> welcome to the court of appeals, courtroom, rights thrit

this way. this is the courtroom in which people against lockner would have been decided. it was 1904, on appeal here to this court from a ruling of the appellate division, third department. we have the very setup in which the attorneys would have appeared. this side would have been the apple ant, joseph lockner's people would have been sitting here, and the respondent being, in this case, would be the attorney general, would be sitting here. the lawyer for joseph lockner would have been here facing the bench and would have begun with words like, "may it please the court, i'm the attorney for joseph lockner, and i am asking the court to reverse his conviction because my client was denied due process in that he was denied the right to enter into a contract to purchase labor and to set whatever

working hours he, my client, had with the employee. so he would have made that argument right here. the judges undoubtedly would have engaged him in questions, following which the attorney for the state, the attorney general, would have presented the state's viewpoint, and the argument would have been whether the police power of the state can in effect trump the right of someone to purchase labor and the right of someone to contract freely with labor. these were two the considerations that were in the balance. >> that is the court that joe lockner faced and lost on appeal. the next is the supreme court. first, we'll take your calls. management sue watching from vallejo -- matthew is watching from vallejo, california. welcome. >> reporter: thank you to c-span. it's fascinating. his a question that went back --

i had a question that went back to the unions pushing for the work hours to suppress the small mom and pop bake shops. i went to berkeley and had a constitutional law professor who was adamant that it was the employers who were very much in favor of this work hour restriction, kind of for the same justification that suppressed the mom and pop shops because they were working so much more hours and couldn't keep up and compete. i don't know if you have thought on that or whether that was correct or incorrect. >> yeah. the unions and employers who they bargained with had the same interest in suppressing competition. it's the other half of the same thing i was talking about. you're right. i think the more -- the more industrialized, larger bakeries that could afford shift worker would have wanted to suppress competition, and so did the workers who unionized and sort of had a mutual interest in suppressing the competition, the low-price competition. >> they may have had a mutual

interest and may have acquiesced, but they had absolutely nothing do with the law. i've read everything i can about the enactment of the law and found nothing that showed that unions or large businesses were involved in passing that law. what i found was that the law primarily was passed because of a fortuitous moment. henry weissman was a lucky man. it just so happened that he happened up on becoming the head of the bakers union at the same time the gilder committee was doing its surveys. it was the power of these individuals -- i call those people mainstream reformers. they favored good government, they favored ameliorating the problems of poverty in the tenement houses, and had just enough stroke in the political system in new york at that time that they could get a law like this passed. the unions couldn't is done that. they were split into three groups, they had no power, no

money, they had no ability to influence the legislature. which, by the way, was -- you mentioned levi morton at the beginning or the clip did. levi morton wasn't the important personality here. it was boss plat, thomas collier platte, who ran the state with an iron fist and was favorable to business. he wasn't -- humans weren't going to get anything out of thomas collier platte, anyway. they might get something -- mainstream employers might because there were enough republican to thwart the democrats in tammany hall in new york city. >> next is a call from steve who's watching us in dallas. hi, steve. >> caller: hi, i love your "first lady" series, talking about pat nixon last night. i'm not quite sure -- it doesn't pertain directly to the supreme court case, but i was wondering about this factory fire in new york city in 190-something. to what degree did that speed up

the development of the labor union movement in this country? to what degree did it strengthen it, particularly working conditions, did that add to the liberty union movement growing in america? >> paul kens, could you help answer that? >> i couldn't answer directly because i wouldn't know how it sped up creation of labor unions. i think it probably sped up or drew more attention to the problems of tenement house businesses. >> next is will. and will is watching us in lincoln, delaware. >> caller: yes, lincoln, delaware. thank you very much, susan, for taking the call. it's a consentual question, open full that i would like to direct specifically to professor randy barnett. he's introduced in his early discussion about competition and how the landmark case has impacted on competition, he's talked about education, he's talked about unions and housing. professor barnett, would you please expand on other key

economic factors that the lockner vs. new york 1905 case impacts, please. >> i'm not sure i understand what the caller is asking. can you be more specific, caller? >> caller: yes. about ten minutes ago, professor barnett, you were talking about how the unions wanted to pursue this landmark case because they were able to restrict competition from mom and pop shops, et cetera. then you talked about how education would be limited. i'm thinking that you have a reputation as probably one of the foremost libertarian theorists in regard to constitutional law. what other precedents have followed from this key case? >> well, okay, the education piece i was talking about was how a local law restricted the teaching of german and how the

lockner court struck that down because it vile atted the due process clause. once the due process clause, juris prudence, that were contexttural health and safety laws that had no base in health and safety which is what it concluded 5-4 about this law, once that particular line of cases was eventually reversed in west coast hotel and others, that meant that all these laws could be passed, and there would be no vetting by the supreme court as to whether there was a genuine health and safety rationale for them. the health and safety rationale would be presumed, and you couldn't contest it. i think one of the things, susan, we need to talk about is that there were two dissenting opinions in the lockner case, not one. there is the famous dissentsing opinion by justice oliver wendell holmes. but there's the other by justice ha harland. what he said was that the doubt ought to go the investigators in

passing a health and safety law. was still permissible to present evidence to rebut the legislation. any case, there was a pretty good record that the supreme court relied. to find out -- to find there was no health and safety measure, and judge harland agreed. and given the presumption, the bake shop law should be uphold. it was holmes' position that was more radical. holmes basically would. have allowed proof to be introduced into the court. and initially, it was the harland position that prevailed in the new deal. it wasn't until the warren court actually in the williamson v. optical case that the holmes approach, his dissent, became the law which you were not allowed to contest the rationality of a restriction on your liberty. >> you're getting us slightly ahead of ourselves, our caller is. we have to find out how the supreme coucase got to the supreme court. could you explain how joe lockner got the cowboys -- >> i'll turn to paul. he just reread the book and knows the details of this better than i do.

>> the details are spectacular actually. what happens is weissman, at the end -- let me see what year, about 1894 or so, he has a falling out with the bake shop union. and you know, normally i would -- when i would read these kinds of materials like the "baker's journal, "i would read clips, you know, like a tape, videotapes and things. this one they sent me was the "baker's journal" itself, this big old book, it was falling apart in my hands. and inside the "baker's journal," i found an addendum to one month's editorial, and what it said was that lockner had fallen out because he had been skimming money -- >> weissman. >> sorry, yes, weissman had been skimming money. he became a baker. he opened two bakeries and said he was studying law on the side.

he became active in politics little bit, republican politics. and eventually in 1903, he's charged with practicing law without a license. and he admits it. he said he wasn't practicing, was just representing another attorney. 1903 -- that's an important date, by the way. he poss up agaps up again in th he gets lockener's original attorney and asked him to file with the united states supreme court. mackie files a document entitled, "an intention to appeal to the united states supreme court" and filed the fee. he didn't file a motion for a writ of error. for those of you who aren't lawyers out there or weren't early 20th century lawyers, that was the way a file got to the supreme court. it was an order to send the file

to the supreme court. so if that had been where we stood, it case never would have happened. that case would have been deep in the dungeons in the new york courts of appeal, just laying away with the $100 filing fee. what happened to wieseman, took on another attorney, frank harvey field. he wasn't a very famous attorney either, although he had organized -- argued before the supreme court. frank harvey field saw the error, and he actually got justice bepeckham to let the err through and get the case to the supreme court. when i was alerted to the fact that weissman had been charged with practicing without a license, i thought, when did he get a license. i wrote to the court of civil appeals. the court charged with determining that. and i asked any name, spelling name i could find. what i found, there was no henry weissman ever licensed to practice law in new york.

so essentially what happened is, a, the case was very close to never getting to the courts, and b -- by the way, weissman never called himself an attorney. he called himself "of counsel." he himself the attorney, he called himself of counsel. but he did get the right to argue the case in part to the supreme court. >> so weissman turns out to be one of the drg kainteresting characters of this story. he switches sides and helps get the case to the supreme court. he's an interesting one to watch as we learn about this story. can you tell as you bit about the fuller court, the make-up of the court? >> the fuller court has a reputation of being a conservative court. it is a mixed bag, there's justices put on by teddy roosevelt, by other presidents and, in fact, it had upheld economic regulations before the

lochner case. so it wasn't clear that it had a lock on the outcome. it was a 5-4 case but it wasn't clear it was going to come out as it did. some think justice peckham's was a dissent and it was quakeickly adapted to be an -- people have very favorite ascending positions. almost nobody i know has a favorite majority opinion. if you have a single center like holmes, he can write these impassioned things. maybe one of the reasons i liked the lochner decision is because

it was written like a dissented opinion. >> so the chief justice was melville fuller. how long had he been on the court and who was he appointed by? >> he's been on the court since the 1980. i can't remember who he was appointed by, i'm embarrassed to say. do you remember? >> no. who can remember all -- >> he had been a railroad attorney -- >> you almost couldn't be a commercial lawyer without being a railroad attorney. >> melville fuller himself, was he famous among chief justices? >> i think not.

i actually lived in that period of time in history most of my life actually so he's famous to me but i don't think he's famous to anyone else. >> we heard oliver wendell homes, john marshall harlan. who are any of the other names people would know about? >> i'm not the best person to ask but david brewer might, testifies a nephew of steven field and had pretty strong ties in america and pretty strong power in america. the rest i would say no. it was brewer, day, white. but rufus peckham argued the opinion that has gone on to be debated ever since. can either of you tell us his

story, who he was? >> he was a new yorker. he had been on the court for about ten years at this time. i can't remember who he was appointed by either. generally conservative views. he had always voted -- primarily voted against any kind of laeb legislati -- labor legislation or restrictions on business. it sounds like lochner's attorney himself a good case the way i describe them but they didn't really. they actually had a hard case going in. most of the cases before lochner versus new york were state court opinions. there were on two federal court opinions, hardy and the other was atkins versus kansas, which upheld another law. it was either an eight-hour day or ten-hour day for public employees, which is a whole

different bailiwick because public employees are part of the country in a way, the government's part of the country. so both of those cases were upheld. so all of the cases that were in the supreme court at the time this case came up upheld restrictions on ours. >> and it somewhat of a myth to say even going forward from the lochner case that the supreme court struck down a lot of economic regulations. it struck down some but upheld far, far more than it struck down. i want to go back to what we said at the beginning of the show and that is that the bake shop act was a very elaborate health and safety law that the lo lochner court itself upheld, especially to protect the public but others as well, including the bakers. that's the evil, terrible, awful, wicked lochner did that. just the one provision was struck down. >> we're going to learn more

about rufus peckham, the justice who wrote the opinion, returning to the new york legislature. >> now justice peckham, who wrote the majority for the supreme court of the united states decision in lochner's favorite served on this court before this court heard the case. just peckham was a judge of this court from 1887 to 1895. so when judge rufus peckham was on this court, he, along with the others would have come out the door wearing the robe and when he began, he would have sat in that seat, that's the seat of the junior judge and as he took on seniority and others came on, he would have moved around but never as chief judge. he was a political adviser of president grover cleveland. and when there was a vacancy in the united states supreme court, cleveland obviously felt that his friend, his confidante and new york court of appeals judge

rufus peckham jr. would have been a good candidate for the united states supreme court but he would have been right in this courtroom here. we would have had a pretty good idea of how he would have voted had the lochner vote been here. >> here's the singular question the supreme court was asked to visit in the lochner case. it was simply this: did the new york bakeshp act violate the liberty protected to due process protected by the 14th amendment? it's obviously a big question. >> yes. >> what kind of arguments were made? >> we have a very modern view of what rights are and how rights work. a post new deal view. when the court talked about liberty of contract as being part of the liberty protected by the due process clause, we have

a tendency to think if you recognize a right of liberty of contract, that should be inconsistent and trump all health and safety laws, all economic regulations. that's not the way any constitutional rights, including freedom of speech was considered before the new deal. all laws had to be reasonable, which meant they had to be no irrational and not arbitrary. you could challenge any law as irrational and arbitrary under this standard approach. that was the question for the court. nd the due process law, was this law irrational and arbitrary? these were actually technical terms. irrational is when you pick a means and the means are not all that closely related the end that you say is why you're doing it, we might have reason to doubt that that's really why you're doing it. if you say mynd is to go to the grocery store but you end up at the dry cleaners, then maybe yournd really wasn't to go to the grocery store.

so if you say your end is public law but you pass a law that doesn't relate to public health, we may question that. an arbitrary law is different. a law that treated us differently would be arbitrary. both cases were the way due process dealt with and identifying a contract only meant the law would have to be not irrational, only arbitrary and that's what the court was deciding in this case. >> we learned that the court was often hearing cases over multiple days. what was the actual process of making an argument before the supreme court in 1905? had it standardized itself? >> i don't think it standardized

but it want as long as pre20th century. they would go days pre-20th centuries with important cases. i also don't know this case was as complicated. >> so wild and wonderful on twitter thinking about the justices who were on the court and the attorneys making their appeals to them writes is it fair to assume none of these justices rose from the labor class? they had a predisposition to what? >> i think that's true of lawyers in general, especially in that era. i don't think any rose from poverty. holmes didn't. he was -- at least the ones that are famous that we know of. holmes of the son of an important doctor in boston and part of the boston elite,

sometimes called the boston brahmans. he writes more like a poet than a lawyer. harlan was a slave holder and he ran for governor in kentucky. his opinions swing one way or another and people have a hard time getting a grip on them. peckham was the son of a judge. randy keeps saying these are all legitimate health laws. well, that's part of the problem here. part of the problem was defining what the police power is. liberty of contract -- another thing we ought to tell readers is that liberty of contract is not fond in the constitution. it's an extra constitutional right. it's created by the courts and it's not really created until after the slaughter as you cases, although you can make arguments that it's in the spirit of the constitution, it's

not there. we end up with a try um verate of questions. one is does it violate due process, the due process law of the 14th amendment. the other is what right violates the due process law and there's the contract clause, which are not in the constitution and a relatively new development and the third thing is the police power of the states, what's the police power. by saying it was just a health law, that want necessarily what everybody thought. people thought the police power extended to the general welfare. >> i do want to mention about liberty of contract. the right to make an enforced contract was in the civil rights act of 1866 passed by the congress that eventually passed the 14th amendment because they were concerned that the democrats had made such an issue of the civil rights act of 1866 that the minute they came back,

they would repeal the act, which think promised to do and also the act had been vetoed by president johnson as beyond the powers of congress to pass under the 13th amendment and there were some republicans that shared johnson's concern that maybe they didn't have the power to protect the right and to hold contracts and testify and do other things so they passed the 14th amendment to make sure the rights that were mentioned in the civil rights act of 1866 would be to enfor-- enforced.

this is henry weissman making case and he compares it to the housewives. then there is the american housewife. the housewife must toil on sometimes far into the night. it seems never to have occurred to these ungallant legislators to have imclue these most important of all artists. appealing to mothers and apple tie. >> judge o'brien i think was that first to make that same kind of comment. he said i think the good housewives will be surprised to learn that baking is an

unhealthy process. >> what that quote goes to is the alleged arbitrariness of the law, which was the arbitrariness of the law. much of what people did was unhealthy, which is why the union was formed in the first place. but why just single out the bakers and why not all the the others? that was considered to be arbitrary. the case with respect to the miners could be distinguished because mining is an exceptionally dangerous profession. if you're down in a mine shaft, you present a health and safety risk to yours or to your fellow

miners. it was insubstantial evidence to show that was the case with bakers. the due process of law requires that laws not be irrational and not be arbitrary. >> how long after the case did it take for the court to return its opinion? >> i have no idea how long -- it didn't take as long in those days as it takes now. no question about that. it could be very quickly. >> we talked earlier about how justice peckham originally started out as a dissent. >> just peckham wrote there is no reasonable ground for ent fearing with the liberty of

person or right of free contract in determining the houshs of a baker flp is no contention that p bakers as a class are not able to assert their rights and care for themselves without the protecting arm of the state interfering with their adoption of judgment and their action. what's he appealing to there? >> he's appealing to the standard of arbitrariness. there's no reason to single out the bakers as opposed to the other occupations in his opinion. in the state courts, prior to the federal courts and one the due process law is included in the 14th amendment and the federal courts and applied to state laws as well. whereas he could distinguish miners for the reason i said before. there is a reason to single out miners and people in an unusually dangerous occupation. >> here's little bit of justice holmes's dissent. "a constitution is not intended

to embody a particular economic -- it is made for people of fundamentally differing views and the accident of or finding certain opinions natural and familiar or novel or even shocking ought not to conclude our judgment upon the question -- what is he saying? >> he's attacking the notion of liberty of contract. he believes it's a reputation of laissez faire economics. he believes it's taking laissez faire theory and applying it to constitutional law. >> i want to agree with paul what he said a few moments ago. there was at that point, the

scope of the police power was being contested. this really is what the debate ought to be about. it isn't about whether there's liberty of contract. we're all free to enter into contracts as long as we're not harming another person. the question is what is the scope of the police power that the state has to regulate us or prohibit us from doing certain things. that is what the argument was about. did it include more of the safety of the public? the other thing would i want to say about justice holmes' statement here is later on he gets to his free speech case, he takes an entirely different approach and says there is a theory of free speech in the constitution and ideas need to prevail in the marketplace. so he was perfectly capable of finding theories in the constitution when he cared to. >> let's go next to roberta

watching us here in washington, d.c. >> good evening, susan and to your distinguished panel. >> the lochner case was argued in two days and decided less than two months later on april 17th. >> thank you. >> i have two questions. one addresses the main point of liberty of contract. that is the question of where did this come from? well, if you'll just bear with me a little bit. after the civil war and passage of the 13th amendment, many people in the south tried their best to keep defacto slavery in fact. while many freed slaves wanted to own their own land, that want happening too well. but there was a government agency called the freed men's bureau. they won't to the south to

helped the freed men make a living and what happened is they were going to work on the plantations all over again. the former slave owners preferred they would do it for free. and they couldn't do that. so what they came up was this concept of having people -- have the slave owns are sign a contract whereby they would be guarantee the freed men wages. these contracts weren't exactly what you call free in the sense where most of them were one-year contracts where the friedman could not leave the former plantation. a lot of them had provisions if there was a bad crop, their wages would get docked, et cetera. but at least there was something that say, hey, if i hit my end of the bargain, then you owe me some money. >> roberto, with apologies, our time is so short. so bring us into a question for us. >> that's why the -- my question

was how did the limited contract which was originally formulated as a shield to protect employees from employers taking advantage of them, how did that get flipped on its head from employers using it against employees. >> sir, i'm going to have to stop you there, we have so many calls on the line. thank you for your call and interesting background. >> i'm a contract professor as well and there are two parties. it decides which side is trying to get out of krit which side the court is going to have to deal with or side with. he brings up a very important point. in the south there were all kind of way in which the southerners were trying to reimpose the subordination of blacks and get around the 13th amendment. one of the way alabama did it was by criminalizing breach of

contract. if somebody would sign a long-term contract, they gave them $15 fee to deposit in advance and then they quit their job, they would actually accuse them of fraud and prosecute them for crimes and put them in jail and subject them to hard labor for quitting their jobs and it was a way of keeping blacks under the control of what their former slave masters were. that law was also struck down by the lochner era court as rye lags of the 13th amendment. you know who -- justice oliver wendell homes thought that was perfectly constitutional. >> let me ask to you compress 35 years of history. what happened at the court during the lochner era?

>> the term is a little misnomer because it becomes a symbol of this era but it's not subject to due process. the era involves a battle over the commerce law and dealing with the depression through government action. and the thwarting of those attempts by the supreme court up up until 1937. so what happens in 1937 is first the story of roosevelt trying to pack the court, randy may be better to tell but that. >> i will have randy tell bus that. let's listen to franklin roosevelt in 1937 complains about the supreme court in a fireside chart. >> the court in addition to its proper use of judicial functions has improperly set itself up as a third house of the congress, a super legislature, as one of the justices has called it, reading into the constitution words and

implications which are not there. and which were never intended to be there. we have, therefore, reached the point as a nation where we must take action to save the constitution from the court and the court from itself. >> and what was that action? >> well, he tried to pack the court. he tried to pass a statute in which the number of justices would be increased. he could appoint justices until the older justices retired. that got a very ill reception from democrats. he could have gotten a constitutional amendment to legitimate lots of what they said but he chos to do this instead. there were leading democrat chairs of committees that were not very friendly to this court packing scheme but that's what

he tried to do. >> our viewer earlier said the lochner came to an end in 1937 with west coast hotel versus paris, the court said the constitution speaks of lib are the, not of liberty of contract. it rejects the notion of liberty of contract. the second thing it does is talks a little bit about the kinds of burdens on society. it kind of hints at rejection of the notion of laissez faire economics and says that substandard wages actually turn out to be a subsidy on the people in favor of businesses. this kind of turns the whole idea of lochner around.

the the one thing it doesn't do, it gets rid of substantive due process in that term but it doesn't die. >> it's very important that the term substantive due process was never used by the court during the so-called lochner era. it was a term made up by progressives to criticize what the court was doing. they held by protecting a substantive right, they were going beyond procedural nature of substantive. it was considered a criticism. it was never a doctrine of the court. i want to agree with what paul said -- first of all, the lochner era -- he didn't get any

traction until teddy roosevelt ran as a progressive. secondly, paul is right. there were two issues in front of the court, one were due process cause cases and the others were the enumerated of congress under the power. people kept accusing us of favoring lochner but we were doing a commercial clause case, we were not doing due process clause case. so it had nothing to do with the challenge of the affordable care act. that's a confusion that maybe this program can rectify in the future. >> it's a confusion and not a confusion. both in both of those areas the court held a pattern of restricting government -- >> the confusion is labelling

lochner. >> and even recently as one of our viewers on twitter says, "chief justice roberts refers to lochner 16 times on the same-sex marriage decision. >> ultimately only one precedent supports the majority's interpretation of the due process clause, lochner versus new york. in that case decided m 1905 the court struck down the state law setting maximum hours for bakery employees. the court did so based on its own view on liberty saying it protects the general right of an individual to be free of his own person. in the years after, the court struck down nearly 200 other similar laws that the court saw as a, quote, interference with

the rights of the individual. now, the lochner is now regarded as one of the most unprincipled era in the court's history. the problem was not the particular liberties the court enshrined are undesirable but such an unrestrained enterprise had no basis in the constitution. >> what should we understand about what the chief justice said? >> i hope your viewers noticed that what chief justice roberts said sounds exactly the same as what franklin delano roosevelt said. they are articulating the exact same position. many conservatives made that part of their conservative politics. so if fact it was the progressive restraint criticism of lochner that gets imported into modern political conservatives' arguments, it's the liberals, the left on the court, that as early as the

1940s start abandoning all these calls for restraint and they start an activist role. we done a flip here pu now it's conservatives that are unrestricted -- and it's liberals reconstructed jurisprudes. >> we have several cases, muller v. oregon, adkins versus children's hospital of dc, griswold versus connecticut, the right of privacy, roe v. wade, in the last cases there were liberals and they were citing

the dissent. >> everything flipped as the court flipped. richard nixon ran on the idea that he's going to appoint judges that are going to follow the constitution, right? it was liberals who were the activists. i think that's the anomaly. i think by and large conservatives have been the activists overtime. the conservative and liberal side of the political docket, your term a post new deal -- >> it's turning around a little bit now. >> i think it is.

>> charles in spring lake, new jersey, thanks for watching. you're on the air. >> yes. i don't really have too much to add except my uncle joe, that's what my father called him, it was my father's uncle, joe lochner. i don't know too much about the case itself but uncle joe of course ran that bakery and from what my father told me, he used to employ a lot of german immigrants. they would come over and have a place to work. >> so in your family is joe lochner well known for his place

in history? >> yes. my sister is an attorney and my nephews and my niece are attorneys. >> does the family say anything about the relationship with uncle joe with the employees that was trying to work more hours than he could under the statute? because we got some sense earlier that they were actually pretty close to each other. there is somend case this was a setup case between the two of them to try to challenge the law. is there anything in your family history about that? >> i don't know too much except there was a sense in that this was almost like a clan, you know, people would come to work and they would have a place to work. so he fulfilled a need to work for people coming offer from germany. >> well, thanks. i hope we told you a little bit more tonight about your relative, who is the person who gave his name to this case and

brought it to the supreme court. let me take a call from floyd watching us in fort campbell, company. >> can you hear me? >> sure can. >> i have an education in history. i'm looking to go to law school next year. this is fascinating to watch this. i really appreciate it. the promise that professor ken stated on the unions and the employers of the big bakers having a definite interest but not being involved in the outcome of legislation to create this law that caused lochner versus new york. i guess from an historical analysis perspective, should you be wary of saying because there wasn't any public record or anything you can find in your analysis, research, no public record of them being involved that there couldn't have been something behind the scenes,

especially if it would benefit them to hurt or stymie this other private small business, either in corruption or bribery at the legislative or even the jujs leve judicial level ? >> i think that's a really good question. it would have the things i have is the unions weren't power enough to get this passed so they weren't involved. the second thing is the bakeries were completely different. the powerful bakers were the cracker industry bakeries. so they had no interest whatsoever in this particular bill. i think that's a good point of view -- >> the bake shop union had no interest in the maximum hours law? >> not the bakeries that were actually cracker industrieindus. >> the bake shop union -- >> the bake shop union represented only the bread baking interest. >> did the bake shop union have --

>> absolutely but it didn't have any power. >> but it was a union initiative. >> it was a union initiative. >> this is going to be our last call. ken from daly city, california. hi, ken. >> thank you very much. there seemed to be a growing national mood at that time for regulation, laub rights, health and safety standards. i was original live going to ask how much did this precede the publishing upton sinclair "the jungle" and i found out that was published a year later. right at that particular time, many unions got their foothold right at that i'm. it was a very important part of our history, just those few years. i wonder how much this affected the courts at this time. they must have been aware of all this. >> they were. and at this time unions were all

white or generally white. there were some blacks but they were specialized or all small. they were all pro-white unions, to the disadvantage of blacks who they would not let them in and had to organization themselves. the court was aware of union agitation, which is why the court refers to other motives. blocking a health and safety -- for example, this was pro-union as opposed to management legislation and the courts said the legislature is not supposed to put their self on the side of one or the other, which is what paul was saying was going on in terms of debating the scope of the police power. >> our guests said there's beginning to be a revisiting of

lochner, especially among libertarians. our final clip is senator rand paul on the senate floor in 2013 talking about lochner. >> when you get to the lochr in 1905, the majority rules 5-4 the right to make a contract is part of your due process. someone can't deprive you of how long your working hours are without due process. so president obama is a big opponent to this but i would ask him among the other things i'm asking him today to rethink the lochner. the case in lochner is whether a majority rule, a state legislature can take away your due process, your due process to contract. can they take away your life and lib are terty without due proce the court rules no. i think it's a wonderful decision. it expands the 14th amendment

and says to the people you have unenumerated rights. >> gentlemen, as we close, you said the lochner era was closed but you wrote in your book that it is not closed. >> rand paul is talking about the idea of judicial activism and i this i that -- well, actually it's roberts talking about judicial activism and rand paul is talking about a certain view of liberty that i don't think everybody share, that notion of you entered into that contract completely free, at arm's length, by the way, for the contract professor, doesn't hold. >> naturally i'm v