It’s hard to believe that earnest bakers working flexible hours making wholesome bread could bring down the power of the state. At least that’s the image George Will paints for his readers this week.
His recent column dives into the debate over whether the controversial 1905 Supreme Court case Lochner v. New York was correctly decided.
Lochner invalidated a New York law, the 1895 Bakeshop Act, that established maximum work hours for bakers.
Will presents no description of the state of bakeries in turn of the century New York except to note that during oral arguments before the Supreme Court, “New York, defending the law, presented no evidence that baking wholesome bread is an especially unhealthful occupation or requires limiting workers’ hours.”
He believes New York’s legislature acted only to benefit union bakeries and his use of the phrase “baking wholesome bread” has historical antecedents.
Justice Rufus Peckham wrote for the Court, “Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. The limitation of the hours of labor does not come within the police power on that ground.”
Later, Justice David Brewer would tell an assembly, “I think I may safely appeal to all of the gentler sex before me, and ask them if making and baking bread is a specially hurtful and unhealthy labor.”
Baking bread is not typically viewed as unhealthy. And the law in question was inconsistent: it did not prevent all types of bakers from working 10 hours. For example, bakers in hotels were exempt as were bakers of pies or the personal bakers of wealthy families. Large union bread shops clearly benefitted from this law.
But beyond the inconsistencies and politics of the matter, Will overlooks important history: Bakeries in turn of the century New York were not necessarily wholesome.
A series of exposes in the New York press in the 1890s disclosed the unsanitary conditions in bakeries including the usual assortment of vermin (rats and cockroaches) and, importantly, squalid living conditions: in many bakeries, the workers were also tenants who state inspectors found sleeping in their work clothes.
Many of the bakers were poor immigrants who were paid by the day, not the hour, and depended on their employer for both wages and shelter. That type of coercive relationship upends the normal process of contractual labor. And the results were often hazardous working conditions that one does not typically associate with baking “wholesome bread.” Bakers worked in shifts and had to be on call 24 hours a day.
Unionized bakeries had substantially improved the lives of the workers health and safety, including the 10-hour workday limit. Will finds in their advocacy for the Bakeshop Act nothing more than an attempt to stifle competition:
“Ostensibly health and safety legislation, it actually was rent-seeking by large, unionized bakeries and their unions. They wanted to crush their small, family-owned, nonunionized competitors that depended on flexible work schedules.”
Note that in this description, housing poor, immigrant workers in unsanitary conditions and forcing them to be on call 24 hours a day is simply “flexible work schedules.”
It’s easy to overlook this history because Lochner himself, despite violating the law, was not accused of unsanitary conditions or of abuse toward his workers.
But that history is there nonetheless and shouldn’t be conveniently ignored when one wants to call into question the constitutional use of state power over private enterprise.