During arguments in Dobbs, Justice Breyer continued his long-standing jeremiad against Lochner. Here, Breyer said that during the Depresion, Lochner became unsustainable because it required “pure laissez faire.”
They said, are you going to sit here in the middle of the Depression and tell me that –that Lochner, with its other cases, and pure, just about pure laissez faire, we can run the country that way.
No, Lochner and related cases did not mandate “pure laissez faire.” Contrary to Justice Holmes’s dissent, the majority did not “decide upon an economic theory which a large part of the country does not entertain,” namely, “laissez faire” capitalism. Remember, Justice Peckham’s majority opinion upheld all aspects of the New York Bakeshop Act but one: the maximum hours provision. Indeed, all nine Justices agreed that the Bakeshop Act’s health and safety regulations were valid exercises of the state’s police power. Both the majority and the dissent upheld the regulations concerning ventilation, ceiling heights, the location of washrooms, and the cleanliness of floors in bakeries. Not even close to “pure laissez faire” capitalism.
Regrettably, Justice Breyer is forever afflicted with Lochnerphobia. But you know what solved Lochner? West Coast Hotel v. Parrish, a case that returned the Court to scrupulous neutrality.
The post Justice Breyer Is Foreover Afflicted With Lochnerphobia appeared first on Reason.com.
Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit https://reason.com
This post has been republished with implied permission from a publicly-available RSS feed found on Reason. The views expressed by the original author(s) do not necessarily reflect the opinions or views of The Libertarian Hub, its owners or administrators. Any images included in the original article belong to and are the sole responsibility of the original author/website. The Libertarian Hub makes no claims of ownership of any imported photos/images and shall not be held liable for any unintended copyright infringement. Submit a DCMA takedown request.