Laboring in the “Poisonous Gases”: Consumption, Public Health, and the Lochner Court
More than a liberty of contract or an hours of labor case, Lochner v. New York was a public health case. The bakers’ agitation for the underlying Bakeshop Act focused heavily on public health issues, particularly on the contention that bakery work created an unacceptable risk of disease, especially consumption, to themselves and to consumers. Associate Justice Rufus Peckham, author of the majority opinion in Lochner, admitted that “[t]he law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker.” Most of the statute directly concerned bakeshop sanitation issues, and the bakers argued strongly that the hours provision was an occupational health measure as well. Yet Justice Peckham dismissed their concerns by citing to a mortality table and relying on “the common understanding [that] the trade of a baker has never been regarded as an unhealthy one.” He further introduced a slippery slope argument that allowing the Bakeshop Act to stand would mean that all work places and occupations could be subjected to health regulation. While Peckham’s third argument proved unusually prescient, the other two were ideologically-driven and specious distortions running contrary to accepted medical wisdom, then and now. Though it may be possible to argue, as David Bernstein does, that Lochner was “based on what were then mainstream (and longstanding) jurisprudential ideas,” it is also true that the decision was based on a misunderstanding of contemporary medical knowledge.
