What Does Lochner Have to Do with “Here Comes Honey Boo Boo”?

Nothing, though maybe Honey Boo Boo likes to read the old U.S. Reports in her spare time. Frank Pasquale at Balkinization begs to differ, but his point seems to be that public morality should overcome the right of people to embarrass themselves in public, especially because he thinks that such people are not true free moral agents when they are members of “marginalized groups.” Even if we accept this pop sociology, given that the Lochner Court had a rather robust conception of the states’ police power to regulate morals, going so far as to allow bans on options trading as a form of gambling, I still don’t see what this has to do with Lochner.

UPDATE: I understand that Pasquale was also making a general point about how, as a commenter puts it, “the justification of ‘consent’ obscures questions about power and about why people’s options are sufficiently limited that they ‘consent’ to being exploited in the first place.” But if that, and not the idea that “Honey Boo Boo,” like his dwarf-tossing example, should be banned, is the point of his allusion to Lochner, I’m still not getting the allusion to Lochner. You won’t find any of the Justices in 1905 (or before, or after), arguing that consent prohibits the government from regulating contracts in the interest of health, safety, and morality (otherwise known as the “police power”).

The power of the state to regulate on behalf of worker and public safety was acknowledged several times in the Lochner opinion itself. The Court ultimately concluded that the law was invalid, not because of “consent,” but because it found that there was “no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health or the health of the individuals who are following the trade of a baker.” A law with only a tangential (at best) relationship to health doesn’t become a health law just because the state says it is. One can criticize the Court, as Harlan’s dissent for three Justices did, for substituting its own judgment for the judgment of the legislature, but not for arguing that “consent” overrides the police power.

The Court followed the rule allowing “police power” regulations for health and safety even when the safety rationale could easily be seen as pretextual and invented to protect the interest of the labor unions for which the Court had little fondness. Thus the Court upheld railroad “full crew” law unanimously in St. Louis, Iron Mountain & S. Ry. v. Arkansas, 240 U.S. 518, 520-21 (1916); Chicago, Rock Island & Pac. Ry. v. Arkansas, 219 U.S. 453, 466 (1911). (See my brief discussion on page 239 of this article).

Nor will one find any examples of ANY Justice on the Supreme Court voting to invalidate, say, laws requiring factories to have fire exits, banning “contracts” for prostitution, and so on, in the name of “consent.” I can think of one example of a Justice making a rather egregious argument that consent to a contract allows the imposition of even the most egregious conditions (involuntary servitude for breach) on that contract–but that was Justice Holmes, author of a famous dissent in Lochner, defending peonage in his lone dissent Bailey v. Alabama.

Of course, Pasquale may believe that allowing people to contract for employment or otherwise, especially when the contracting parties are not equal socioeconomically, is inherently exploitative,
and thus should be viewed with great suspicion, if it’s allowed at all. But if that’s the problem, it goes to the foundations of our entire legal and economic system, not to “Lochner.”