MR. JUSTICE PECKHAM, delivering the opinion of the court.
MR. JUSTICE HOLMES dissenting.
MR. JUSTICE HARLAN, with whom MR. JUSTICE WHITE and MR. JUSTICE DAY concurred, dissenting
[Harlan begins with a discussion of caselaw precedent.
He then moves in for his key argument.]
While this court has not attempted to mark the precise boundaries of
what is called the police power of the State, the existence of the power has been
uniformly recognized, both by the Federal and state courts.
All the cases agree that this power extends at least to the
protection of the lives, the health and the safety of the public against the injurious
exercise by any citizen of his own rights.
In Patterson v. Kentucky, 97 U.S. 501, after referring to the
general principle that rights given by the Constitution cannot be impaired by state
legislation of any kind, this court said: "It [this court] has, nevertheless, with
marked distinctness and uniformity, recognized the necessity, growing out of the
fundamental conditions of civil society, of upholding state police regulations which were
enacted in good faith, and had appropriate and direct connection with that protection to
life, health, and property which each State owes to her citizen." So in Barbier v.
Connolly, 113 U.S. 27: "But neither the [14th] Amendment -- broad and comprehensive
as it is -- nor any other Amendment was designed to interfere with the power of the State,
sometimes termed its police power, to prescribe regulations to promote the health, peace,
morals, education, and good order of the people."
Speaking generally, the State in the exercise of its powers may not
unduly interfere with the right of the citizen to enter into contracts that may be
necessary and essential in the enjoyment of the inherent rights belonging to every one,
among which rights is the right "to be free in the enjoyment of all his faculties; to
be free to use them in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; to pursue any livelihood or avocation." This was
declared in Allgeyer v. Louisiana, 165 U.S. 578, 589. But in the same case it was conceded
that the right to contract in relation to persons and property or to do business, within a
State, may be "regulated and sometimes prohibited, when the contracts or business
conflict with the policy of the State as contained in its statutes" (p. 591).
So, as said in Holden v. Hardy, 169 U.S. 366, 391: "This right
of contract, however, is itself subject to certain limitations which the State may
lawfully impose in the exercise of its police powers. While this power is inherent in all
governments, it has doubtless been greatly expanded in its application during the past
century, owing to an enormous increase in the number of occupations which are dangerous,
or so far detrimental to the health of the employes as to demand special precautions for
their well-being and protection, or the safety of adjacent property. While this court has
held, notably in the cases of Davidson v. New Orleans, 96 U.S. 97, and Yick Wo v. Hopkins,
118 U.S; 356, that the police power cannot be put forward as an excuse for oppressive and
unjust legislation, it may be lawfully resorted to for the purpose of preserving the
public health, safety or morals, or the abatement of public nuisances, and a large
discretion 'is necessarily vested in the legislature to determine not only what the
interests of the public require, but what measures are necessary for the protection of
such interests.' Lawton v. Steele, 152 U.S. 133, 136." Referring to the limitations
placed by the State upon the hours of workmen, the court in the same case said (p. 395):
"These employments, when too long pursued, the legislature has judged to be
detrimental to the health of the employes, and, so long as there are reasonable grounds
for believing that this is so, its decision upon this subject cannot be reviewed by the
Federal courts."
Subsequently in Gundling v. Chicago, 177 U.S. 183, 188, this court
said: "Regulations respecting the pursuit of a lawful trade or business are of very
frequent occurrence in the various cities of the country, and what such regulations shall
be and to what particular trade, business or occupation they shall apply, are questions
for the State to determine, and their determination comes within the proper exercise of
the police power by the State, and unless the regulations are so utterly unreasonable and
extravagant in their nature and purpose that the property and personal rights of the
citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed
without due process of law, they do not extend beyond the power of the State to pass, and
they form no subject for Federal interference.
"As stated in Crowley v. Christensen, 137 U.S. 86, 'the
possession and enjoyment of all rights are subject to such reasonable conditions as may be
deemed by the governing authority of the country essential to the safety, health, peace,
good order and morals of the Community.'"
In St. Louis, Iron Mountain &c. Ry. v. Paul, 173 U.S. 404, 409,
and in Knoxville Iron Co. v. Harbison, 183 U.S. 13, 21, 22, it was distinctly adjudged
that the right of contract was not "absolute in respect to every matter, but may be
subjected to the restraints demanded by the safety and welfare of the State." Those
cases illustrate the extent to which the State may restrict or interfere with the exercise
of the right of contracting.
The authorities on the same line are so numerous that further
citations are unnecessary.
I take it to be firmly established that what is called the liberty of contract may, within certain limits, be subjected to regulations designed and calculated to promote the general welfare or to guard the public health, the public morals or the public safety. "The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import," this court has recently said, "an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good." Jacobson v. Massachusetts, 197 U.S. 11.
Granting then that there is a liberty of contract which cannot be
violated even under the sanction of direct legislative enactment, but assuming, as
according to settled law we may assume, that such liberty of contract is subject to such
regulations as the State may reasonably prescribe for the common good and the well-being
of society, what are the conditions under which the judiciary may declare such regulations
to be in excess of legislative authority and void? Upon this point there is no room for
dispute; for, the rule is universal that a legislative enactment, Federal or state, is
never to be disregarded or held invalid unless it be, beyond question, plainly and
palpably in excess of legislative power. In Jacobson v. Massachusetts, supra, we said that
the power of the courts to review legislative action in respect of a matter affecting the
general welfare exists only "when that which the legislature has done comes within
the rule that if a statute purporting to have been enacted to protect the public health,
the public morals or the public safety, has no real or substantial relation to those
objects, or is, beyond all question, a plain, palpable invasion of rights secured by the
fundamental law" -- citing Mugler v. Kansas, 123 U.S. 623, 661; Minnesota v. Barber,
136 U.S. 313, 320: Atkin v. Kansas, 191 U.S. 207, 223. If there be doubt as to the
validity of the statute, that doubt must therefore be resolved in favor of its validity,
and the courts must keep their hands off, leaving the legislature to meet the
responsibility for unwise legislation. If the end which the legislature seeks to
accomplish be one to which is power extends, and if the means employed to that end,
although not the wisest or best, are yet not plainly and palpably unauthorized by law,
then the court cannot interfere. In other words, when the validity of a statute is
questioned, the burden of proof, so to speak, is upon those who assert it to be
unconstitutional. McCulloch v. Maryland, 4 Wheat. 316, 421.
Let these principles be applied to the present case. By the statute
in question it is provided that, "No employe shall be required or permitted to work
in a biscuit, bread or cake bakery or confectionery establishment more than sixty hours in
any one week, or more than ten hours in any one day, unless for the purpose of making a
shorter work day on the last day of the week; nor more hours in any one week than will
make an average of ten hours per day for the number of days during such week in which such
employe shall work."
It is plain that this statute was
enacted in order to protect the physical well-being of those who work in bakery and
confectionery establishments. It may be that the statute had its origin, in part, in the
belief that employers and employes in such establishments were not upon an equal footing,
and that the necessities of the latter often compelled them to submit to such exactions as
unduly taxed their strength. Be this as it may, the statute must be taken as expressing
the belief of the people of New York that, as a general rule, and in the case of the
average man, labor in excess of sixty hours during a week in such establishments may
endanger the health of those who thus labor. Whether or not this be wise legislation it is
not the province of the court to inquire. Under our systems of government the courts are
not concerned with the wisdom or policy of legislation. So that in determining the
question of power to interfere with liberty of contract, the court may inquire whether the
means devised by the State are germane to an end which may be lawfully accomplished and
have a real or substantial relation to the protection of health, as involved in the daily
work of the persons, male and female, engaged in bakery and confectionery establishments.
But when this inquiry is entered upon I find it impossible, in view of common experience,
to say that there is here no real or substantial relation between the means employed by
the State and the end sought to be accomplished by its legislation. Mugler v. Kansas,
supra. Nor can I say that the statute has no appropriate or direct connection with that
protection to health which each State owes to her citizens, Patterson v. Kentucky, supra;
or that it is not promotive of the health of the employes in question, Holden v. Hardy,
Lawton v. Steele, supra; or that the regulation prescribed by the State is utterly
unreasonable and extravagant or wholly arbitrary, Gundling v. Chicago, supra. Still less
can I say that the statute is, beyond question, a plain, palpable invasion of rights
secured by the fundamental law. Jacobson v. Massachusetts, supra. Therefore I submit that
this court will transcend its functions if it assumes to annul the statute of New York. It
must be remembered that this statute does not apply to all kinds of business. It applies
only to work in bakery and confectionery establishments, in which, as all know, the air
constantly breathed by workmen is not as pure and healthful as that to be found in some
other establishments or out of doors. [The Justice then goes on to
discuss reports about the working conditions of bakers, before continuing with his theoretical argument.]
Professor Hirt in his treatise on the "Diseases of the
Workers" has said: "The labor of the bakers is among the hardest and most
laborious imaginable, because it has to be performed under conditions injurious to the
health of those engaged in it. It is hard, very hard work, not only because it requires a
great deal of physical exertion in an overheated workshop and during unreasonably long
hours, but more so because of the erratic demands of the public, compelling the baker to
perform the greater part of his work at night thus depriving him of an opportunity to
enjoy the necessary rest and sleep, a fact which is highly injurious to his health."
Another writer says: "The constant inhaling of flour dust causes inflammation of the
lungs and of the bronchial tubes. The eyes also suffer through this dust, which is
responsible for the many cases of running eyes among the bakers. The long hours of toil to
which all bakers are subjected produce rheumatism, cramps and swollen legs. The intense
heat in the workshops induces the workers to resort to cooling drinks, which together with
their habit of exposing the greater part of their bodies to the change in the atmosphere,
is another source of a number of diseases of various organs. Nearly all bakers are
pale-faced and of more delicate health than the workers of other crafts, which is chiefly
due to their hard work and their irregular and unnatural mode of living, whereby the power
of resistance against disease is greatly diminished. The average age of a baker is below
that of other workmen; they seldom live over their fiftieth year, most of them dying
between the ages of forty and fifty. During periods of epidemic diseases the bakers are
generally the first to succumb to the disease, and the number swept away during such
periods far exceeds the number of other crafts in comparison to the men employed in the
respective industries. When, in 1720, the plague visited the city of Marseilles, France,
every baker in the city succumbed to the epidemic, which caused considerable excitement in
the neighboring cities and resulted in measures for the sanitary protection of the
bakers."
In the Eighteenth Annual Report by the New York Bureau of Statistics
of Labor it is stated that among the occupations involving exposure to conditions that
interfere with nutrition is that of a baker (p. 52). In that Report it is also stated that
"from a social point of view, production will be increased by any change in
industrial organization which diminishes the number of idlers, paupers and criminals.
Shorter hours of work, by allowing higher standards of comfort and purer family life,
promise to enhance the industrial efficiency of the wage-working class -- improved health,
longer life, more content and greater intelligence and inventiveness" (p. 82).
Statistics show that the average daily working time among workingmen
in different countries is, in Australia, 8 hours; in Great Britain, 9; in the United
States, 9 3/4; in Denmark, 9 3/4; in Norway, 10; Sweden, France and Switzerland, 10 1/2;
Germany, 10 1/4; Belgium, Italy and Austria, 11; and in Russia, 12 hours.
We judicially know that the question of the number of hours during
which a workman should continuously labor has been, for a long period, and is yet, a
subject of serious consideration among civilized peoples, and by those having special
knowledge of the laws of health. Suppose the statute prohibited labor in bakery and
confectionery establishments in excess of eighteen hours each day. No one, I take it,
could dispute the power of the State to enact such a statute. But the statute before us
does not embrace extreme or exceptional cases. It may be said to occupy a middle ground in
respect of the hours of labor. What is the true ground for the State to take between
legitimate protection, by legislation, of the public health and liberty of contract is not
a question easily solved, nor one in respect of which there is or can be absolute
certainty. There are very few, if any, questions in political economy about which entire
certainty may be predicated. One writer on relation of the State to labor has well said:
"The manner, occasion, and degree in which the State may interfere with the
industrial freedom of its citizens is one of the most debatable and difficult questions of
social science." Jevons, 33.
We also judicially know that the number of hours that should
constitute a day's labor in particular occupations involving the physical strength and
safety of workmen has been the subject of enactments by Congress and by nearly all of the
States. Many, if not most, of those enactments fix eight hours as the proper basis of a
day's labor.
I do not stop to consider whether any
particular view of this economic question presents the sounder theory. What the precise
facts are it may be difficult to say. It is enough for the determination of this case, and
it is enough for this court to know, that the question is one about which there is room
for debate and for an honest difference of opinion. There are many reasons of a weighty,
substantial character, based upon the experience of mankind, in support of the theory
that, all things considered, more than ten hours' steady work each day, from week to week,
in a bakery or confectionery establishment, may endanger the health, and shorten the lives
of the workmen, thereby diminishing their physical and mental capacity to serve the State,
and to provide for those dependent upon them.
If such reasons exist that ought to be the end of this case, for the
State is not amenable to the judiciary, in respect of its legislative enactments, unless
such enactments are plainly, palpably, beyond all question, inconsistent with the
Constitution of the United States. We are not to presume that the State of New York has
acted in bad faith. Nor can we assume that its legislature acted without due deliberation,
or that it did not determine this question upon the fullest attainable information, and
for the common good. We cannot say that the State has acted without reason nor ought we to
proceed upon the theory that its action is a mere sham. Our duty, I submit, is to sustain
the statute as not being in conflict with the Federal Constitution, for the reason -- and
such is an all-sufficient reason -- it is not shown to be plainly and palpably
inconsistent with that instrument. Let the State alone in the management of its purely
domestic affairs, so long as it does not appear beyond all question that it has violated
the Federal Constitution. This view necessarily results from the principle that the health
and safety of the people of a State are primarily for the State to guard and protect.
I take leave to say that the New York statute, in the particulars
here involved, cannot be held to be in conflict with the Fourteenth Amendment, without
enlarging the scope of the Amendment far beyond its original purpose and without bringing
under the supervision of this court matters which have been supposed to belong exclusively
to the legislative departments of the several States when exerting their conceded power to
guard the health and safety of their citizens by such regulations as they in their wisdom
deem best. Health laws of every description constitute, said Chief Justice Marshall, a
part of that mass of legislation which "embraces everything within the territory of a
State, not surrendered to the General Government; all which can be most advantageously
exercised by the States themselves." Gibbons v. Ogden, 9 Wheat. 1, 203. A decision
that the New York statute is void under the Fourteenth Amendment will, in my opinion,
involve consequences of a far-reaching and mischievous character; for such a decision
would seriously cripple the inherent power of the States to care for the lives, health and
well-being of their citizens. Those are matters which can be best controlled by the
States. The preservation of the just powers of the States is quite as vital as the
preservation of the powers of the General Government.