the government has to do. what the resolution will be -- talk to mitch mcconnell and the president and paul ryan. paul ryan entering the list i think bodes well for the solution. he helped engineer the ryan murray solution. the problem this year has been that that deal has been breached. that a speaker perspective -- from my lips to god's ears. [laughter] mr. korb, is there going to be resolved this? guest: i think particularly if senator ryan -- congressman ryan becomes speaker. he will come in and at least have a honeymoon.

at least for the end of this year. that is what the debate is about. the president is the president. this is his policy, if you don't like it then you are going to have to deal with it. that is why we have elections. he was very clear about this in 2012. with therence korb center for american progress, formerly of the defense department of the reagan administration. thomas donnelly of the american enterprise institute,

after that, representative john garamendi on wednesday's deadline to fund highway trust funds. the cost of congressional perks and how it will affect how congress handles expenses. you can join the conversation with her cause and comments on facebook and twitter. >> coming up on c-span, our special series landmark cases looks at lockerbie new york. the we talked to senator grassley about the locker case.

>> let's go through few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people.

in fact, the story of the baker whose cave gives rise to an era that defined the supreme court for the next 34 years. let me introduce you to our guests. randy barnett is at georgetown university. he is the author of a book restoring the lost constitution of congressional liberty and he is argued in court. her other guests actually read the book on lochner. his home base is texas state university. in telling people it should be interested in this, when to explain why? symbolcase has become a it was made into a political symbol by teddy roosevelt when he ran for president in 1912. it was a symbol of how roosevelt

claimed the court had overreached and overstepped its bounds and blocks legislation from being enacted. ever since then it has been a because itlashpoint was made one in a presidential campaign. >> flashpoint for which side? >> roosevelt claimed that this was a product of laissez-faire economics which is what he got from the justice holmes in the was on the court and extolling homes as an honorable justice. on the court news president and enduring reelection he elevated him and elevated case which was called bigshot case. importance that it did not happen to let campaign. this was the battle between progressives arguing for increasing state regulation and

essentially federal regulation of all kinds of activities and those who favored a more free market economic system believed that the constitution protected the liberties that the court does protective lochner. >> your book also one of the most controversial decisions of the history does in court, what made it so? >> two reasons. one of them was that it had an economic element to it. it was a conflict between two different visions of what the country should be very one focused on labor and community in the focused on democracy, the other focus primarily on capital. that's one reason, but also as isdy said the second reason that it's dispute about who should make the decisions of those debates? the supreme court said it should.

>> specifically, what did they decide? what is the framework question mark >> they were asked to look at the constitutionality of one provision of a larger statute called bigshot act. it was a regulation of the court was asked to decide whether this is a valid exercise or aate lee's power violation of the liberty protected by due process. they decided that it did violate due process. >> were going to go back to the history of the time and learn more about the tradition that baker's faced in this era that gave rise to the new york state passing the bakeshop law.

you say it has one foot firmly planted in the gilded age and another in the oppressive era. we'll talk more about what was happening in the united states. about safety in new york at the turn-of-the-century. time, bakery workers worked in underground cellar bakeries much like this one where they had to toil for many hours every week producing bread to feed a vast and growing city. at that time there were about 2500 or even more bakeries in new york city. an incredible number in the bakery workers would have to come down into the sellers and essentially spend our lives here. areceilings of the bakery relatively tall by the time most bakeries were six to eight feet tall. thereere hot and humid

were pipes that drip sewage and other things onto the floor. this floor here which you can see his tile would actually have probably been dirt would. it would always been foggy and dirty. cleaned were never because they had no hot water at the sink. they were just rate this bachelor is another breadmaking equipment but nothing would ever be cleaned or sanitized. to the oven,ome this is an of and from about the turn-of-the-century. been a coldginally oven. and there would've been a big pyro coal over here. blackhole which was always kicking up a lot of dust. everything in the room with the grimy with coal dust. lots of hot fumes laden with coal dust.

bakery workers were breathing this all day and the brentwood been stored somewhere around here. also would'veread been covered with a thin layer of coal dust because that was what the atmosphere of the bakery was. then you add to that the fact that there were vermin running andnd in cats to catch them they find a nice row of warm loaves and sleep on them. conditions in these bakeries were unsanitary by any means. for the product or the workers themselves. >> so, what do you want people to know about what was happening in the united dates at this time? well he was moving from the gilded age we already entered into a kind of mechanized

movingy business rather from the farming business among the local to one that was industry and national or international. certain people benefited certain people didn't. one of the things that happens in big cities like new york and chicago for example when a new kind of industry is forged industries like the clothing and tobacco industry and the baking industry. this was a great clip. it's one of those things that's where videos worth a thousand the one where you're standing actually looks a lot better than i imagine a bakeshop of look in the lochner era. basically they were just dirt floors there were sewers in the

ground. sometimes they were open. it just ran freely. long's work exceedingly hours and it was exceedingly difficult work. chapter isf my first not how grandma used debate. because it wasn't. pound handling 100 4200 stacks of flour. it was hard work and long work. it was dirty and filthy and difficult and long hours. x it wasn't just that it was difficult for the baker's, there wasalso the public health endangered by the conditions of these people were working in because the bread was unsanitary. so that was also happening in the country were people were beginning to look at public health and public safety.

>> i think this is a really good to talk about that. yorkthe legislature of new to address condition were so well described in the video. the bakeshop act out a number of sections and i'll just read the headings. plumbingand requirements as to rooms furniture and utensils and manufacturing. washrooms and closets. inspection of bakeries. these are very detailed regulations. this is attached the majority opinion in the lochner decision. none of the sections that is summarized were challenged as

unconstitutional area in the latter case itself the court says there is obsolete nothing else about any of these laws. the conditions been complained of were being addressed in the constitutionality of the law was not called in question even by the lochner court. one provision got dropped in separately added by the bakeshop unions which was the maximum hours law. it was added to the section they did not come about in the same legislative section. in addition to all the health and safety regulations workers can't work more than 10 hours a day in the can't work more than 60 hours a week. provision was checked

afterwards. 124 toeshop act was nothing in the house. he was afraid the act would be found unconstitutional because it use the word person rather than employee. so they voted on in the second again itifically and was fewer people in the assembly. so we had 135 legislators that signed off on a specific provision. brings up an also important point, the provision regulated the maximum hours of the workers, but not of the

baker's themselves. they worked in the same conditions the workers did. they were allowed to work longer than 10 hours a day and more than 60 hours a week which is another reason for became suspicious of the particular -- this one after saying all the rest of the rules for ok. >> it's time to introduce a character who will be part of our, later on. his name is henry wiseman. who was he? with that he had to do with the passage of the bakeshop law? >> he's a really interesting character. not fast you can find bits and pieces about them. baker hean he was a landed in california first in the united states in 1886.

he joined the anti-chinese organization that was sometimes violent. he ended up being put in jail death fornths as possession of explosives. soon after he was released coming came to new york where he was hired as the editor of the which was thel journal of the international baker's union. >> reunion starting to organize themselves? >> new york especially. we're talking 1895 now not 2005. it makes a lot of difference. unions were not very well organized. there were before the civil war but they were usually specific

the company. national unions didn't start to take shape until later in the century. the first thing the organized around was travel. workers were from day to night. one thing people don't really understand about this case is that workers were paid by the week, about $12 a week. the amount of time they were during the day was up to the employer. there is a bargaining about. those hours were long. 1881, the figures were on strike in new york and there were striking for a 12 hour day. the improvement was going to be a 12 hour day. and they usually worked six or seven days a week.

>> we go next to them your state assembly to tell you more about how the bakeshop act was passed. before we do not want to tell you a you could be part of a program. we would love to have your questions or comments. if you're watching us in eastern or central time zone is the herer in mountain pacific dial carefully. you can also send us a tweet and if you do use the #landmark cases and you will get into the twitter feed that i have here on set. conversatione's a about the lochner case on our facebook page and you are welcome to be part of that as well. let's take you to the new york state assembly for a history -- >> in how bakeshop's when the bakeshop reform bill was introduced in the new york

assembly on in february of 1895, baker's one straight to demand shorter hours and better working conditions. act is where the bakeshop would been debated. when unions were just beginning to gain influence , however most of them preferred to use striking and organizing instead of working directly with the legislature because they believe is time. three major factors influenced the adoption of the bakeshop act. one, the volatile politics of new york state. governments had recently transitioned from majority governorto republican and both houses of the legislature had republican majorities. the republicans were at the time

interested in increasing government involvements and were very friendly and the democrats were divided. there were pro-reform democrats but there also many that represented tammany hall. aboutwas a linear press the terrible conditions in bakeshop's. they were not sanitary indefinitely very harmful for the workers themselves. a wasthe next was published in december 1894, the deceased withs petitions in pamphlets and letters many from prominent citizens are members of the clergy. they are just the legislature to do something about it.

in february 1895 professional republicans introduced the legislature it was debated and passed with a very wide margin not all members were present. it went to the senate and was passed by an equally large margin. the governor signed the bill 1895 justn may 2 of two weeks before the end of the assembly session. storyit's an interesting about the impact of a newspaper article to influence public opinion. we talk more about that? henry wiseman in 1894 when he came to the baker's union, he actually took over the baker's union. he didn't do it formally was not

elected leader he apparently was a really charismatic person whom spoke both german and english. 1894 was the same year there was a tenement house committee. they were studying the tournaments fonz. i don't thinkt wiseman had much to do with starting the process of this bill getting past. it was an offshoot of the tenement house committee called the fielders committee one of this committee members with thurgood marshall. marshall took up the idea of the bakeshop to one of those kinds of salons that they were trying to solve the problem of. when he put that article in the cause the kind of

attention to be drawn. it was the gilder committee that really got behind the bakeshop. work?t the legislation did have an impact on conditions? >> i don't know. do you know? >> i don't know. with respect to the baker's themselves it did and didn't. by 1913, most bakeries in new working 10 hours a week roughly. it was mostly because of collective bargaining. with respect to health of the different question, else it was hard to tell because all we had were the records of the factory inspectors. and they just report the number

of inspections they make in the violation. 1913 you have, by inspectors calling for complete renovation. maybe >> i will follow up. i was going to mention the union. most union shops are already working 10 hours. the law is aimed at nonunion shops. while with the unions want to invest their scarce resources in passing a lot of benefits people that are not members of their union? it usually because they're trying to address competition. the same reason why they supported maximum hours and minimum wage for women because in those days women -- we they were all white and all-male. you have to think with the unions are being unusually altruistic if they're are

actually supporting legislation that is going to restrict nonunion bakeshop's. it turns out that these small shops were not prounion and not easy to organize and unions didn't like them very much area why would you restrict this how would you get a competitive advantage by stripping their maximum hours? the reason is that they're small enough to many evidence, you have to minute pretty much run the clock. it's a very long process. bakeshop'som-and-pop couldn't afford which shift workers with a larger industrialize bakeshop's could. if you shift workers you could work eight hours shift that if you have just one or two employees that would have to work on your hours area was away to suppress competition from the ethnic mom-and-pop bakeshop's. asked howour viewers much did brett cost relatively

and how much of it was profit? and also with the baker's generally the owners? >> that depends. first i don't know the cost or profit. owners,pect to building the answer to that account confiscated. there were two kinds of industries. the other was the bread baking industry which tended to be small and was not recognized. 98% of bakeries were not mechanized. whether they were owners or not depends a little on where the bakery was. it was a small bakery in a small that they were bakeries in

tenement houses there probably just workers. >> in a minute we will meet the man who gave his name to the case and he was the owner. we were number collars online lets you the questions first. >> african new york. >> high good evening. to comment on two points. holmes junior wrote a dissenting opinion. as i'm sure you're also aware justice holmes is one of the most widely cited u.s. supreme court justices in history. principally i believe for his clear and present danger opinion i would like to contrast justice holmes with your book the structure of liberty were you when it's relationship between libertarianism and classical liberalism. would you say that's as you

indicate in your book the private adjudication and enforcement of law is the only legal system that can provide adequate solutions to problems of interest in power? do you believe justice holmes would sign on to that theory that youstions mark >> find short answer for that pocket a question? >> based on an accurate reading of my book. this is young the scope of this program, but the color has read this book and successfully applied the book to this particular question. but right now what we are concerned about is what the u.s. constitution provides, not what some internet of legal system i talk about in that could provide, and whether the constitution and 14th amendment in particular would be consistent with these health and

safety regulations or inconsistent with them. that is really what this program is about. >> baltimore you are on the air, andre. >> good evening. i would like to thank c-span for putting this show on. my question for your guess is that the supreme court ruling -- over rule the court's ruling in lochner? >> it effectively overruled because it rejected the idea of liberty could it also rejected -- idea of liberty. in other words, it rejected the idea that the case placed laissez-faire capitalism into the constitution. question? -- >> hi, your question? >> it seems as if that the uncontested elements of the law would drive undercapitalized bakeries out of business, taking away business opportunity for immigrants that they could use what skills they had.

>> you are nodding your head. was there an anti-immigrant element? >> that was a response to one of randy's earlier statements, it 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 is a good thought that it might have had an anti-immigrant element to it. i never looked into that. there is another book about the lochner case by david bernstein. randy: i'm a big fan of paul's book. david does talk about the anti-immigrant drive, particular anti-germans who were very much distrusted and there was a lot of anti-german sentiment. also the irish tenement, but they were also not in the bakery business. and also the anti-jewish

sentiment. the juice and germans -- jews and germans were doing most of the aching in new york. they were still uniformly upheld, because they were health and safety laws. health and safety laws were consistent with the lochner approach to the due process clause. >> let's meet next one of those german bakers affected by this law passed by the is simply of new york. that is joseph lochner. we will hear about his story from his great-grandson. >> joe lochner's probably wasn't the target of the act that was passed, but it was certainly impacted by it. joseph lochner was born in bavaria, germany and 1863. he came to the united states at 24 and ended up in utica, new york and opened up a bakery. they make cakes and cookies and breads and things like that. i have a cousin who talked about

how there uncle joe would come to their house every sunday and would bring all kinds of swedes and they talked about how delicious they were. -- sweets and they talked about how delicious they were. some of the old family documents , we came across a contract from 1896 that was a co-agreement between my great-grandfather, joseph lochner, and mr. smither. what it does is i think it is a way to get around the bakeshop act. after joe had been arrested and he took the case to court, every baker in america donated a dollar to the legal defense fund trade my mother -- defense fund. i think it was a test case. the reason i think joe would make got some pathetic defendant

is that he was hard-working immigrant from germany, his bakery was on the first floor, not in the basement. it was also very clean. that is what i was always told growing up, which may not have been typical for bakeries of that time. >> randy barnett, you want to start? randy: i want to talk about the germans a little bit. there was a lot of anti-german sentiment. myra v nebraska was a case in which a local statute prohibited the teaching of german in grade school. that's how the anti-german cinema was, at least in brusca. the same -- at least in nebraska. this restriction on the teaching

of german also failed. in part because it deprived the people that did german instruction of their livelihood. myer v nebraska case is considered a good law today. and yet it was still decided by the same lochner court on the very same basis that lochner v. new york was decided, and it also involved anti-german sentiment. >> you have to love our viewers. one of them tweeted, retail prices of foodstuffs circa 1900, a loaf of bread cost seven cents. what you want to tell us about how joe lochner found himself at the center of this legal action. was it his idea? paul: they even got henry

weismann into the act because they got him to do some of the expecting -- inspecting after the bill was passed. they focused on new york city. that might be another reason why this would have been unusual. i don't know. i wish i would have looked into joseph lochner more when i did the book. he was probably surprised to find himself in court with criminals on the day he was indicted -- or charged with this law. i think he probably was a hardheaded man. i don't think this was a set up case.

i think it was a test case, as his grandson says, but people have said that there was another case earlier, in that case would involve a tobacco manufacturing, which was done in the slums, usually in the home of people living in tenement houses. randy: cigars. paul: right, cigars. it was done in the slums. usually a whole family was working, all living in the same tobacco they were working on. interestingly enough, the jacobs -- the man charged with violating that -- but the more unusual thing was that he was represented by a lawyer called the "prince of the american bar." it is 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 lochner. lochner had a regular lawyer who made some serious mistakes.

>> we will go to the next part of our story. he appeals his conviction under the bakeshop law. >> and it was a criminal conviction. i think he was incarcerated for. >> fined $50 the second time. >> he didn't want to pay. >> that's why he probably had to go to jail. what can you tell us about his pursuit in the newark -- new york case? randy: he just refused to play. his attorney said that he refused to play because the act he was charged with did not constitute a crime. i think that was because he intended to take it to the appeals court. i think that is the only reason

he would do that. he was hardheaded. then it went to the appellate division of the supreme court of illinois -- of new york, which is the first level of appeal in new york. they are the conviction was upheld by a vote of 3-2. that was the first time his attorney raised the issue of liberty of contract. he used the terms "right to pursue a lawful profession" in this brief. it went 3-2, and he appealed to the next level. at that level, the new york court of appeals, they won by a vote of 5-4 -- no, 5-3. a majority of the judges in new york decided that this law -- >> lochner lost. the law one. next we will visit the new york state of appeals courtroom to learn more about that part of joe lochner's story.

>> welcome to the new york court of appeals courtroom. this is the very court room in which people against lochner would've been heard. the case was decided in 1904. the case was on appeal. we have the very set up in which the attorneys would have appeared. this site would've been the appellant, joseph lochner's people. the respondent being the attorney general sitting here. the lawyer for lochner joseph lochner would have begun right here, facing the bench, and would have begun with words something like, "may it please the court. 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." he would have made that argument right here. the judges would undoubtedly 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've 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 the two considerations that were in the balance. >> so that is the court that joe lochner faced and lost on appeal. the next was the supreme court. we will learn about that. matthew is watching us in blago,

california. >> i want to thank c-span for doing this. i went back to something mr. barnett said earlier about how the unions were pushing for the restriction as a way to suppress the smaller mom-and-pop bakeshop. i went to underground -- undergrad at berkeley and had a constitutional law professor -- for the same justification that suppress these mom-and-pop bake shops, working so much more hours and they could not keep up. i don't know if you have any thoughts on that. randy: it is the other half of the same thing i was talking about. you are right. the more industrialized larger bakeries they could afford shift workers had money to suppress competition, and so did the

workers who unionized, and they had a mutual interest in suppressing the competition, low-priced competition. paul: they may have had a mutual interest, and may have acquiesced, but they had nothing to do it the law. i have read everything i could, and i find nothing in there that shows that either unions or large businesses were involved in passing the law. what i found is that the law was passed because of a for two inches moment. henry weismann is a lucky man. they just so happened that he ended up becoming the head of the bakers union at the same time that the gilder committee was in power, doing it survey. it was the power of these individuals, i call those people mainstream reformers -- they favored ameliorating the problems of poverty in the tenement houses, and they had just enough strength in the

political system in new york at that time that they could get a law like this past. the unions could not have done that. they were split into three groups, had no power, had no money, had no ability to influence the legislature. which -- you mentioned levi morton, he was not the important policy. it was, plat, who around the state with an iron fist and was favorable to business. unions were not to get anything out of him. but the mainstream reformers might, because there were enough republicans to thwart those democrats in tammany hall in new york city. >> next is a call from steve watching us in dallas. >> i love your series. my question doesn't pertain directly to -- but i was wondering about the factory fire in new york city. to what degree did that speed up the development of labor union

movement in this country? particularly about working conditions, did that help labor unions and their movement growing in america? paul: i couldn't answer that question directly, because i would not know how it's fed up labor unions. i think it drew more attention to the problems of tenement house businesses. >> next is will watching us in lincoln, delaware. >> yes, it is an open question i would like to address to professor barnett. he introduced in his early discussion about competition, about how the landmark case has impacted on competition.

he is talked about education, unions, housing. professor barnett, would you please expand on other key economic factors that the lochner v. new york 1905 case impacts? >> i'm not sure what the caller is referring to. >> are you still there? >> yes. about 10 minutes ago, you are talking about how the unions wanted to pursue this landmark case because they were able to restrict competition from mom and pop shops. 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 when it comes to constitutional law. what other presidents have followed from this key case?

randy: ok. the education piece i was talking about how the local law restricted the teaching of german and how the lochner court struck that law down because it violated due process clause. to distinguish genuine health and safety laws, they had no basis in health and safety, which is what it concluded 5-4 about this law. once that particular line of cases was eventually reversed and west coast hotel and others, that meant 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. it would simply be presumed, and you couldn't contest it. i think one of the things that we need to talk about is that there were two dissenting opinions in the lochner case.

not just one. there's the one by justice john harlan. his dissent was that the benefit of the doubt all to go to the legislators in passing the health and safety law, but it was still permissible to present evidence on the reasonableness of the recommendation. there was a record that the supreme court relied on to find out there was no health and safety measure. justice harlan disagreed. given the presumption, he said, that the bakeshop law should be upheld. it was oliver wendell holmes' position that was more radical than that. it would not have allowed proof to be introduced into the court. interestingly, it was not until the warren court that the homes approach of his dissent became the law, when you were not allowed to contest the rationality of a restriction on your liberty. >> you're getting slightly ahead. we have to find out how the case was resolved. how was a joke lochner -- joe lochner able to get the supreme court to take the case?

paul: by 1894 or so, he has a falling out with the bakeshop union. normally, i would read these kind of materials like the bakers journal, i would read clips like videotapes and things. this when it's at me was the baker journal itself, this big old book falling apart in my hands, and inside the bakers journal i found an addendum to one month's editorial. it said that lochner had fallen out because he had been skimming money off the top. i'm sorry -- weismann had been skimming money, so he he became a baker. he said he was studying law on the side.

he became active in politics a little bit, republican politics, and eventually in 1903, he is charged with practicing law without a license. he admits it. he said he was a practicing, just representing another attorney. 1903 is an important date. he pops up again in the lochner because he gets lochner's original attorney, he asks him to file an appeal to the united states supreme court. the interesting thing is that he filed a document, on intention to in peel to the united states supreme court and filed a $100 fee. he did not file a motion for a writ of error. for those of you who are not

lawyers, that was the way a file got to the supreme court. it was in order to send it to the supreme court. if that had been where we stood, this case would have never happened. it would have been deep in the dungeons of the new york courts of appeal. what happened was that weismann took on another attorney. he had argued before the supreme court. he saw the error and he actually got a justice to agree to let the writ of error go through. when i was alerted to the fact that weismann had been charged with practicing law without license, i tried to find out when he got the license. i wrote to the cart -- court charged with determining that, and i asked any name spelling that i could find, no henry weismann was ever licensed to practice law in new york. a, the case was closed to never getting to the court. by the way, weismann never

called himself an attorney. he did get the right to argue before the supreme court. >> weismann turns out to be one of the interesting characters in this entire story. he starts out organizing the union, somewhat responsible for passage of the law, then switches sides and takes the case to the supreme court defending lochner. can you tell us a bit about the court? >> it has a reputation of being a conservative court. randy: there are justices put on there by teddy roosevelt, other presidents, and in fact -- it upheld economic regulations

before the lochner case, so it wasn't clear that it had a lock on the outcome. it wasn't clear that it was going to come out the way it did. some historians think that in fact justice peckham's opinion was drafted as a dissent. the votes were not as expected or changed during deliberations, and it was quickly adapted to be an a majority -- a majority opinion. dissenting opinions are very clear, people have very favorite dissenting opinions. majority opinions are written by committee and are there to attract votes. if you have a single the center like homes, he can write these impassioned things, well maybe one of the things -- why i like the lochner so well when i was a student. it was written by a dissenting opinion was written, a very clear, senior argument. maybe because it was originally a dissent and was adjusted as part of the 5-4 majority.

>> how long had melville fuller been on the court? paul: he's been on the court since the 1880's, so he's been there a while. he definitely -- do you remember him? randy: no. paul: he had been on the court. he had a very strong pro-business views. randy: there are a lot of people who talk about justices as railroad attorneys, because they were responsible for so much of the money and litigation, you could not be a commercial lawyer without being a railroad attorney. paul: i have lived in that time

for most of my life. i think not. >> we heard the name oliver wendell holmes, certainly well known by the general public, john marshall harlan, who were the other names of the justices serving the people would know who distinguished themselves? paul: i'm not the best person to ask. he was a nephew of stephen field , connected to a family that had pretty strong ties in america, and pretty strong power in america. the rest that would say, no, joseph mckenna, day, white, none of these people are degree famous. >> rufus to them, offered the opinion that has gone on to be debated since. that's rufus peckham -- rufus peckham authored the opinion that has gone on to be debated since.

>> generally conservative views. primarily voted against labor lysacek -- legislation when it comes to restriction. it sounds like lochner's have a good case, but they don't really. they had a hard case going in. most of the cases developed before lochner v. new york were state court opinions. there were only two that were federal court opinions. one upheld an eight hour day for mining and manufacturing. health and safety provision. the other was acting versus kansas which of health another

law, another eight hour day or 10 hour day for public employees, which is a whole different thing because public employees are part of the contract in a way. so both of those cases were upheld. all of the cases in the supreme court at the time this case came up upheld restrictions on hours. randy: it is some what of a myth that the supreme court struck down regulations. it upheld far more than it struck down to it i want to go back to what we said at the beginning of the show, because some of your viewers may not of been watching us at the beginning, the bake shop act was an elaborate health and safety law that the lochner court itself upheld as it genuine regulations protect the public, especially protect the public, but other people as well, including the bakers. that is the evil, terrible,

awful lochner court did that. >> we will find out more about the justice who wrote the opinion next. >> justice peckham who wrote the majority for the supreme court of united states decision in lochner's favor served on this court before this court heard the case. justice peckham was a justice of this court from 1887-1895, so when judge peckham was on this court, he along with the others would have come out the door wearing the robes, and when he began he would have sat in that seat, 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 advisor of president grover cleveland, and when there was a vacancy in the supreme court, cleveland obviously felt that his friend, his confidant, new york court of appeals judge, rufus peckham junior, would have been a good candidate for the united states supreme court, but he would have been in this courtroom here and would have had a pretty good idea of how he would have voted if he had been on this court when the lochner was decided here. we know how he voted when he carried a majority in the united states supreme court in favor of lochner. >> that is more on rufus peckham. did the new york bakeshop act violate the liberty protected by due process under the 14th amendment? that is a big question. what kind of arguments were made? randy: we have a very modern view of what rights are and how they work, so when the court

talked about liberty of contract as part of the liberty protected by the due process clause, we have a tendency to think that if you recognize a liberty of contract and that should be inconsistent and trump all health and safety laws, all economic regulations, but that is not the way any constitutional rights were considered before the new deal. all laws had to be reasonable, all laws had to be reasonable. they had to be not irrational and not arbitrary. you could challenge any law that is irrational and arbitrary under this approach. that was the question before the court. under the duke process cloth -- due process clause, was this a rational and arbitrary? these were technical terms and what -- let me say what irrational is. when you take the means and the means are not closely related to the end that you say is why you're doing it we might have reason to doubt that is really

why you are doing it very it if you say want to go to the you end up atbut the dry cleaners, maybe your end was not to go to the grocery store. if you say your end is public health but you have a law that does not have that closer connection to public health you might suspect other motives were responsible. that is an irrational law. and arbitrary it law is the law that treat similar people differently. regulate historians one way and law professors another way even know there is no real reason to distinguish paul doesof job that from the kind of job i do. a law that treated us differently would be considered arbitrary. identifying the liberty of contract only meant that the law would have to be not irrational, not arbitrary in order to survive scrutiny and that is what the court was deciding. host: we learned that the court cases over multiple

days. what was the process of making and are given before the supreme court in 1905, had it standardized itself? >> it was not as long as pre-20th century. it could go days. i do not know that this case was as complicated as some of those other vases like the slaughterhouse cases you covered. host: thinking about the justices who are on the court and the attorneys making their appeals to them is it fair to assume that none of these justices rose from the poverty of the labor class? they all had a predisposition toward what? that is the premise of that question. x that is true of lawyers in that era. i do not think any [indiscernible] at least the ones that were son of holmes was the

an important doctor in boston and the boston- elite. sometimes called the boston brahmans. he writes more than -- like a poet than a lawyer. holland was the son of a slave owner. he ran for governor in kentucky. he is an interesting man because his opinions kind of swing one way or another and people have trouble getting a grip on john holland. peckham was the son of a judge. i would say that is true. another thing we ought to tell readers is liberty of contract

is not found in the constitution. it is an extraconstitutional right. it is created by the courts and it is not created until the slaughterhouse cases. there are arguments that it is in the spirit of the constitution. it is not there. what we end up with is a triumvirate of questions that were asked. one is does this violate due theess, the dew claws of 14th amendment. that is the hook and what right violates the due process clause and that is the contract clause. constitution.e the third thing, what is the police power and by saying that it is the health law that is not necessarily what everybody thought. people thought the police power extended to the general welfare. enforceight to make and -- and enforce contract was in

the civil rights act of 1866. passed by the congress that 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 they 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 who shared johnson's concern that maybe they did not have the power to make and enforce contracts and hold property and to do other things so they passed the 14th amendment to make sure that the rights that were mentioned in the civil rights act would be protected by the court. that wasose rights specifically mentioned was the right to make and enforce contracts so it is not true that the court made up this right to make and enforce contracts in the 20th century. >> when we talk about henry wiseman who was not a lawyer, he did get to argue part of the case.

is -- he is enamored of wiseman's brief to the new york. this is henry wiseman making his case to the supreme court and he compares the bankers to the american housewife. let's listen. artist thatreal gets cake and bread. not to mention the american pie. she must toil and sometimes far into the night and seems never to have occurred to these they'snt legislatures most important of all artists and this most indispensable of trades. appealing to motherhood and apple pie. >> he was the strongest but two of the judges in the new york court of appeals made that same kind of comment. judge o'brien was the first. but he said was the good housewives of new york would be surprised to learn that baking

is an unhealthy business. i think the attorney general of new york had a better case in the but he had a bit of an image problem with respect to this case. that quote goes to is the alleged arbitrariness of the law which would limit baker's but would not them and other employees who were also engaged in occupations that we today where -- with think are very unhealthy. much of what people did was unhealthy which is why unions were formed and why you have health and safety measures. but why single out the bakers and why not all the others? that was considered to be arbitrary. thatiners, the case had -- had been upheld could be distinguished because of mining is really an unusually dangerous occupation. i am old enough and you're probably old enough to remember when there were mining disasters in the united states on a pretty frequent basis like airline crashes were happening on a

frequent basis. they could say if you are down in a mine shaft for longer than a certain amount of hours, you present a health and race -- safety risk to yourself and your fellow minors. it was insubstantial evidence to show the same could be said of acres. and many other trades who would not be subjected to a maximum hours lab so that would make the law arbitrary under the traditional standard of how the thatrocess of law requires it not be irrational and not be arbitrary. how long did it take for the court to return its opinion? >> i have no idea. it did not take as long. there is no question about that. howe talked earlier about they started out as a dissent. and he wasnference chosen to write the majority opinion. 5-4's a little bit of the

decision that justice peckham wrote. there is no reasonable ground for interfering with the liberty of persons or the right of free contract by determining the hours of labor in the occupation of a baker. there is no contention that baker's as a class are not equal in intelligence and capacity to men in other trades or manual occupations or they are not able to assert their rights and care for themselves without the protecting arm of the state interfering with their independence of judgment and of action. what is he appealing to there? >> he is appealing to the standard of arbitrariness. there is no reason to single out the bakers as opposed to other occupations he also lists in his opinion and that was the historic standard of due process. once the due process clause is included in the 14th amendment as applied to state law area that is what he is appealing to. he could distinguish minors for the reasons i said before. there is a -- a reason to single

out minors. >> here is a little bit of the dissent. he wrote a constitution is not intended to embody a particular economic theory whether of paternalism and the organic relationship of the citizen to the state or laissez-faire. what is he saying? >> he is attacking the notion of liberty of contract. he believes it is not part of the constitution. what it is is a representation .f laissez-faire economics he says they are taking laissez-faire economic theory and applying it to constitutional law. >> which i think he was wrong about. the traditional do process

clause standard and applying it here and suspecting some thing else was going on besides the health and safety law. i want to agree with paul with what he said a minute ago which police the nature of the power, the scope of the police power was being contested. and so this is what the debate ought to be about. it is not about whether there is liberty of contract because in general, you are free to enter into contracts, where all free as long as we are not harming another person. the question is, what is the scope of police power to regulate us or prohibit us. that is what the argument was about. didn't include more than health and safety of the public and at that point, the court was saying, that is as far as it goes. the other thing i would want to say about justice holmes's statement, is later he takes a different approach and says there is a theory of free speech and the constitution, that ideas need to survive in the

marketplace. he says that is the theory of art constitution. he was capable of finding theories in the constitution when he cared to do so. susan: let's go to a question. >> did evening. to answer your previous question, the lochner case was argued for two days. it was decided less than two months later on april 17. i have a few questions. one addresses the main point of liberty of contract. where did this come from? bear with me and little bit. after the civil war and the passage of the 13th amendment, slavery was outlawed. however, many in the south tried to keep de facto slavery intact. many were known as friedman and wanted theirand

only land. they went down south to help them. what was happening is the freed men were going to work on the plantations all over again. the slaveowners preferred they would do it for free, but they could not do that. they came up with this concept of having people, the slave owners sign a contract whereby they would guarantee the freed men wages. the contracts were not free in the sense that most of them were one year contracts where the freed men could not leave the plantation. if there is a bad crop, the wages would get talked. but at least it was some ring freedmen could hang

their hats on. susan: with apologies, our time is short. bring this to a question. >> that is why the provision that became the 18th amendment, my question is how did the enforcement of the liberty of contract which was formulated as a shield to protect employers -- employees from employees taking advantage of them, how did it become a sword against employees? that is my first question. susan: i'm going to have to stop you there. thank you for your question. prof. barnett: i am a contracts professor as well as a constitutional lawyer. there are two sides. he picks up an important point. in the south, there were all kinds of ways in which southerners were trying to reimpose the subordination of

blacks and get around the 13th amendment. alabama did it by criminalizing breach of contract, if somebody signed a long-term contract and gave them a $15 fee to deposit in advance, 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 label for doing their jobs and it was a way of keeping blacks under control of what their former slave masters were. that law was struck down by the lochner air accord. you know who dissented in that case? justice oliver wendell holmes. he thought that law was perfectly constitutional. even though the lochner court thought it violated the 13th amendment. susan: we have a lot to discuss. let me ask you to compress 35

years of history. you said this initiated the so-called lochner era. what happened then? prof. kens: this is a battle over franklin delano roosevelt's deal with the depression through government action. the flaunting of those attempts by the supreme court up until 1937. what happens in 1937, the story of roosevelt in the court. susan: that let's listen to franklin roosevelt in 1937 complaining about the supreme court in a fireside chat. president roosevelt: as

improperly the court has said itself up as a third house of congress. a super legislature as one of the justices has called it will stop reading into the constitution words and applications which are not there and which were never intended to be there. we have, therefore, we reached the point of a nation where we much take action to save the constitution from the court. and the court from itself. susan: and what was that action? >> he tried to ask the court. he tried to pass a statute where the numbers would be increased and he could appoint justices until the justices retired. the had a huge majority. he could've gotten a constitutional amendment to the new deal said.

but he chose not to do that. did this instead. there were leaving chairs and committees who were not friendly to this court-packing scheme. susan: a viewer said the so-called lochner era came to an end in the court itself. but in 1937, what happened with hotel versus parish? prof. kens: it rejects the notion of liberty of contract. it talks about the kinds of rejections in society. reject the laissez-faire economics saying that substandard wages turnout to be a subsidy on the people in favor of businesses. so, it turns the idea of lochner

around. the one thing it does not do, and i'm sure randy will rebut, it gets rid of the notion of substantive due process. people don't talk about it in those terms anymore, but substantive due process has not died. prof. barnett: the term substantive due process was never used during the lochner era. that term was made up by progressives to criticize what the court was doing because they held that by protecting a substantive right it was going beyond the scope of the due process law. it was only embraced as late as the 1960's and 1970's, prior to

that they did not use the term because it was considered to be a contradiction, a criticism. it was never the doctrine of the court. i want to disagree what i'll said about the so-called lochner era. lochner did not get any traction until teddy roosevelt was running as a progressive and he started making the bakeshop an issue in the campaign. secondly, paul was right. there were two issues at this time. one was process cases about the irrationality and improbability of the laws. lochner is a due process case. if we were arguing the affordable care act for two years, as i was involved with, people kept accusing us of bring the lochner case. we were not doing a due process case. lochner had nothing to do with the challenge to the affordable care act. this is a confusion maybe this program can rectify. prof. kens: it is not a confusion. prof. barnett: the confusion is to label it lochner.

that somehow lochner is a case had anything whatsoever to do with the limits on federal power. susan: even recently, as one of our viewers says, he refers to the lochner case 16 times in his dissent. what is your view? let's listen to what the chief justice had to say about the same-sex case and lochner. >> only one interprets this. lochner v. new york. that case, and decided in 1905, it struck down the hours for bakeshop employees. the court did so based on its own conception of loyalty, particularly that it protects the general right of an individual to be free in his own person.

in the years after lochner, the court struck down nearly 200 similar laws that the court says interfered with the rights of an individual. lochner is now considered to be one of the most unprincipled times in the court's history. such an unrestrained enterprise had no basis in the constitution. susan: what should we understand about this? >> i hope your viewers notice that what chief justice roberts said sounds exactly the same as what franklin delano roosevelt said. they are -- they are articulating the exact same position. many simply imported the roosevelt new deal jurisprudence and made that part of that

conservative politics. it was the progressive restraint, criticism of lochner that gets imported into modern political conservative argument. it is the left on the court as early as the 1940's that started abandoning the activist role. we have done a flip here. now it is conservatives who are unreconstructed jurisprudes. all are operating in a post new deal mode. susan: we have several major citations of the lochner case. 1923, adkins v. children's hospital of washington, d.c.. the right to privacy in 1965. and row -- roe v. wade in 1973.

the last three cases are liberals and they were citing the dissent. >> as the court flipped, i think the liberals, being in favor of judicial activism, which dick nixon ran on the idea he is going to appoint judges who will follow the constitution. it was liberals who were the activist. i think that was the anomaly. i think by and large conservatives have been the activist overtime. the conservative side of the docket, i think your term was a post new deal mentality, i think that is turning around a little bit now. i don't know whether i hope it is or not. i think it is turning around a little bit so that you have it at the same time. chief justice roberts complaining about the liberals, and justice ginsburg talking in

a national federation about the conservatives uprising. there are talking about the two different elements of lochner. one is talking about traditional activism, that is robert. and one is talking about the court interjecting itself into decisions about economic policy, and that would begins berg -- would be ginsberg. susan: charles in new jersey, on the air. charles: my uncle joe, that was what my father called him. my father's uncle. i don't know too much about the case itself, but uncle joe ran that bakery. from what my father told me, he used to employee a of german immigrants.

they would come over and they would have a place to work. susan: charles, it in your family is joe lochner well-known for his place in history? charles: yes. my sister is in attorney and my nephew is also an attorney and my niece is an attorney in washington where you guys are. we are all kind of legal. >> does the family say anything about the relationship of uncle joe with the employee who was trying to work more hours than he could under the statute? we got some sense they were close to each other. or is some indication this was a set of case between the two to try to challenge the law. is there anything in your family history about that? charles: i do not know too much except there was a sense this was almost like a clan. you know? people would come to work and they would have a place to work.

he fulfilled a need to four people coming over from germany. susan: thanks. joe lochner, the son who gave his name to this case and brought it to the supreme court. let me take a call from floyd in fort campbell, kentucky. floyd: can you hear me? my question comes from an historical background. i have an education in history, i am looking to go to law school next year. this is fascinating. the press that prof. kens stayed in on -- stated that the unions and employers of bakeries having a definite interest that not being involved in the outcome of legislation to create this law that caused lochner v. new york. my concern is, how can you -- or should you be leery because

there is any public record in your studies or analysis or research, no studies of them being involved. there could have been something behind the scenes, especially if it would have benefited them to stymie this other business in corruption or bribery at the legislative or judicial level. >> that is a good question. but i have more than not finding anything. the unions were not powerful enough to get this passed. the bakeries were completely different. the powerful bakeries were the cracker bakeries. they had no interest in this bill. i think that is a good point of view, but i feel -- prof. barnett: they had no interest in the hours? prof. kens: not the bakeries that were actually -- >> did the bakeshop union have --

>> absolutely, but it did not have the same power. >> but it was a union initiative. >> yes, it was a union initiative. susan: hi, ken. ken: i was originally going to ask how much this was reflected in upton sinclair's, -- found that" and i was published a year later. at the time, many foothold -- unions got a foothold. it was an important part of our history, just those few years and i wonder how much this effective the courts at the

time. they must have been aware of all this. prof. barnett: at this time, unions were mostly white. there were mostly white, some blacks. mostly male. they were also pro-white male to the disadvantage of blacks who were resentful of some of the randy: they were also pro-white male, to the disadvantage of lacks. you always have to keep that in mind. we think of unions differently. the progressives like unions. the court was aware of union agitation. which is why the court in lochner refers to other motives. like the rest of the bill, we might suspect other motives were responsible for the passage of it. this was pro-union as opposed to management legislation. the