Book Review

Citation(2012) 24 SAcLJ 314
Date01 December 2012
Published date01 December 2012

1 Bakeries in New York before the turn of the 20th century operated under poorly ventilated conditions and employees worked 12 to 14 hours a day, six to seven days a week. Almost 88% of bakers chose to locate their bakeries in the basements of tenement-houses. The basement in New York (then) provided a passage under the house and was the location of the drain and sewer. Sewers were encased in wood and used as benches by the bakers. The floors generally made of wood or concrete – and even just dirt – were often damp and saturated. The ceilings were no higher than three metres and some were no higher than two and a half metres. There were often insufficient heating and no outlets to channel dust and fumes. The bakers found a champion in Henry Weismann, a German immigrant who, when he was living in California, campaigned against Chinese immigration to the US. He became the editor of the “Bakers' Journal” after he moved to New York.A flamboyant and articulate man, Weismann campaigned actively for a workday ceiling for bakers. He told the press in an interview, “the bakers had been robbed of daylight, robbed of everything that makes life sweet and desirable, and left to work almost incessantly, day and night”.1 On 2 May 1895, the Bakeshop Act was passed, and with that, Weismann proclaimed:2“The second of May, 1895, will forever stand forth as one of the most memorable days in the history of the great struggle of American bakers for better and more humane conditions.”

2 About six years later, in April 1901, Joseph Lochner, who owned a small bakery in New York, was charged for violating the Bakeshop Act. The Act had set the minimum standards for sanitation and hygiene for employees in bakeries, and, more importantly to the story, provided that employees cannot work more than ten hours a day or 60 hours a week. Lochner was fined $50. Lochner transformed a story that would not even have made it to the press into a Supreme Court case that continues to be discussed academically into the 21st century. He had much to

thank his counsel, Henry Weismann, for that. Weismann appeared with Frank Harvey Field in Lochner v New York3 (“Lochner”). It was the same Henry Weismann who agitated for the Bakeshop Act, but he had since gone to study law (“on the side”) while he was operating two bakeries. Although he was not qualified to appear before the Supreme Court, he managed to obtain “special leave” to appear. The case was decided in Lochner's favour with Justice Rufus Peckham, joined by Chief Justice Melville Fuller, Justices David Brewer, Henry Brown, and Joseph McKenna, holding the majority judgment that the Bakeshop Act was unconstitutional. Justices John M Harlan and Oliver Wendell Holmes Jr delivered separate dissenting judgments. They were supported by Justices William Day and Edward White. The decision of the majority was founded on the due process clause in the 14th Amendment to the Constitution, the relevant portion of which reads:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

Lochner was to become a controversial decision that generated scholarly debates for more...

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