Many liberal commentators and blog commenters are taking the position that Will’s defense of Lochner is obtuse because restoring liberty of contract would take the U.S. back to the labor conditions of a century ago, and allow employers to exploit employees. The underlying understanding of American economic history resembles what I vaguely recall from my fourth grade social studies class: big corporations oppressed helpless workers, until labor unions backed by federal labor legislation stepped in to even the playing field.
Put aside the fact that, as Will points out, the large corporate bakeries actually supported the hours law at issue in Lochner, while it was small, family run bakeries with little economic wherewithal that opposed the law (are you listening, People for the American Way bloggers?). More generally, it’s a fallacy to think that working hours, conditions, and wages improved thanks to federal labor laws. Rather, all of these things improved because Americans got richer, with American workers becoming more and more productive.
Take the baking industry. After Lochner, there were no legal restrictions on how many hours a baker could work. According to the story liberals are telling, this should have meant that bakery employers in New York would now compel workers to work well more than the ten-hour a day limit the law invalidated in Lochner had imposed.
Instead, by 1909, only four years after Lochner, less than nine percent of bakers nationwide worked more than ten hours a day, and that nine percent were concentrated in basement bakeries that were rapidly becoming obsolete. Even New York’s Jewish bakers, considered the worst-off of the city’s bakers, successfully negotiated for a nine-hour day in 1910. By 1919, eighty-seven percent of bakers nationwide worked nine hours a day or less and only three percent of bakers worked more than ten hours a day.
Labor conditions, in short, improved without labor legislation. Labor laws can outlaw some outlier abusive practices, and help some workers in the short run, though usually at the expense of others. But, as rule, they don’t raise productivity and societal wealth, which is what ultimately leads to a better deal for workers.
UPDATE: Media Matters: “Contrary to Will’s mythology, Lochner is in no way a liberal bogeyman.” Except for the fact that the liberal Media Matters starts off the very same post by accusing Will, in his defense of Lochner, of a “crusade to overturn the 20th century.” LOL.