Lochner v. New York

Finally, Lochner changed attorneys. His new lawyer, Henry Weismann, was an unlikely advocate. Ten years earlier he had been a lobbyist for the Journeyman Bakers Union and editor of the union's newsletter, the Bakers' Journal. He had urged his comrades to agitate for the eight-hour bakeshop law.

Resigning from the Bakers' Journal in 1897, Weismann opened two bakeries of his own. He joined forces with the Retail Bakers' Association to dilute the impact of the Bakeshop Act. As he told the New York Times, "The truth . . . is that I have never been in sympathy with the radicals in the labor movement."

Weissman, who had not passed the bar, asked attorney Frank Harvey Field to join him. The key argument of the new team was that the Bakeshop law violated a doctrine called "liberty of contract"--meaning the right to operate a business, or contract one's labor, so long as this did not interfere with the equal rights of others. State courts embraced this doctrine during the late nineteenth century. (One example was an 1886 Pennsylvania Supreme Court decision to overrule a law that required coal miners to be paid in cash, not goods.)

However, critics argued that the state already placed restrictions on contracts, such as prohibiting the practice of medicine without a license. They claimed the "liberty of contract" doctrine protected the exploitation of workers, who were the weaker parties in labor contracts.

At the time, the U.S. Supreme Court had only once used "liberty of contract" to overrule a state law (in Allgeyer v. Louisiana [1897]). Mostly, the Court preferred to leave state laws intact. So Field and Weismann faced an uphill battle when they argued that the Bakeshop Act had violated the liberty of contract of the workers and employers of New York State. Baking was not a dangerous profession, they said, and the Bakeshop Act, as it concerned hours, was never intended to protect the health of employees. Instead it was a prohibitive labor law, an illegitimate use of the police power of the state, because it deprived bakers of their due process rights.