How far can the government go in regulating individuals' lives?
The Supreme Court's ruling upholding most provisions of the Affordable Health Care Act, popularly known as "Obamacare," affirmed that Congress can require citizens to purchase health insurance. Chief Justice John Roberts' majority opinion asserted that "it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress's power to tax."
Last month, President Barack Obama predicted that the Supreme Court would not take the "unprecedented, extraordinary step" of overturning the law. "A law like that has not been overturned at least since Lochner.''
Obama's prediction was right. But some of the issues of government authority in Lochner vs. New York, decided in 1905, are still reverberating today.
In 1895, the state Legislature passed a bill to regulate the hours and working conditions of bakery workers. Republican majorities in both houses proposed it, and Democrats went along. It passed unanimously, and Republican Gov. Levi Morton signed it.
Joseph Lochner, a Utica bakery owner, rejected the proposition that New York state could tell him how to run his business. He was fined in 1902 for employing a baker for more hours than the law allowed and appealed to the Court of Appeals.
Chief Judge Alton Parker, a Democrat, wrote the majority opinion upholding the statute in 1904. "The natural right to life, liberty and the pursuit of happiness is not an absolute right," he wrote. "It is within the police power of the Legislature to regulate the conduct of that business [baking] as to best promote and protect the health of the people."
Parker, using his Lochner opinion to burnish his credentials as a reformer, was nominated for president that year, losing to another New Yorker, President Theodore Roosevelt.
Lochner appealed to the Supreme Court, which considered the case early in 1905. New York's newly-elected Attorney General, Republican Julius Mayer, was pressed for time in preparing his case. He submitted a short legal brief that followed Judge Parker's opinion that the law was justified to preserve the health of bakers and the public.
In April 1905, Supreme Court Justice Rufus Peckham, a former Democratic Albany County district attorney and Court of Appeals judge known for espousing limited government, wrote the majority opinion holding the law unconstitutional. Peckham cited a clause of the 14th amendment to the Constitution: "nor shall any State deprive any person of life, liberty, or property, without due process of law."
"Liberty" included the right to contract to work more hours than this law allowed.
"The act is not ... a health law but is an illegal interference with the rights of individuals, both employers and employees, to make contracts," Peckham wrote. "There is no reasonable ground for interfering with the liberty of person or the right of free contract" by restricting bakers' hours.
The decision was controversial. Theodore Roosevelt, gearing up in 1910 for another presidential run, attacked it because the court thought "men must not be deprived of their 'liberty' to work under unhealthy conditions." The Lochner decision was used by the courts for many years to invalidate labor and reform legislation.
In 1936, the Supreme Court struck down a New York minimum wage law, ruling that the right to contract for wages below the legally prescribed level was "part of the liberty protected by the due process clause" of the 14th Amendment.
President Franklin D. Roosevelt feared the court would use its narrow interpretation of the government's constitutional authority to strike down the Social Security Act (passed in 1935) and other New Deal legislation. He threatened legislation to expand the court's membership.
Chief Justice Charles Evans Hughes, a former New York Republican governor, worried that the majority of his fellow justices were taking an overly restrictive view of government's authority. He was also alarmed by FDR's threat to his court.
Hughes worked behind the scenes to get his colleagues to take a more liberal view. In a turnaround 1937 decision, Hughes' majority opinion in West Coast Hotel vs. Parrish validated a state of Washington minimum wage law similar to the New York statute struck down the previous year.
That opinion effectively reversed the Lochner decision and put the court on a new, more liberal trajectory. Later the same year, the court ruled that the Social Security Act was constitutional. Providing unemployment insurance and support for the aged was well within the federal government's powers.
Lochner went into eclipse.
Chief Justice John Roberts said in his 2005 confirmation hearings the majority in the Lochner case were "not interpreting the law, they're making the law ... substituting their judgment on a policy matter for what the Legislature had said."
Roberts' opinion in the Obamacare decision declared that "the Federal government does not have the power to order people to buy health insurance." But he also cited "a general reticence to invalidate the acts of the Nation's elected leaders."
The act is constitutional because it requires most individuals who don't buy insurance to pay a penalty to the IRS.
"Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness," Roberts wrote.
But the fundamental issue — balancing government's authority to regulate for the public good and protecting individual liberty — has been debated by New Yorkers since 1895, when New York enacted the bakery law.
Chief Judge Parker affirmed an expansive view in 1904. Justice Peckham tilted away from it in 1905. Justice Hughes emphasized the government's power to regulate in 1937.
Now, Justice Roberts has more or less lined up with Parker and Hughes in affirming the federal health care law.
Bruce W. Dearstyne, Ph.D., of Guilderland, was a professor and now is an adjunct professor at the University of Maryland. He previously was a program director at the New York State Archives.