When I teach Lochner to my students, I use the public choice concept of Baptists and Bootlegers to explain the complimentary factions that supported the New York bakeshop law. As I discuss in my article The Burden of Judging (if you want to understand my judicial philosophy, read this), a coalition of “Baptists” (progressives) partnered with “Bootleggers” (other bakers) to punish the small immigrant bakers who needed to work more than 60 hours a week to make a living.
In the case of the New York maximum hour law, the “Baptists” were the progressives, who exhibited genuine concern for the plight of workers in the industrial age, or perhaps sanitation reform. Laws limiting how many hours an employee could work were viewed as a means to increase the bargaining power of laborers, improve health conditions, make bread healthier, and reduce the risk to society of an overworked proletariat. But not everyone was so benevolently motivated. The protectionist “bootleggers” supporting these laws were the larger, unionized bakeries that sought to punish small, mostly immigrant bakers.305 The large “ bakers were concerned that their improved situation was endangered by competition from small, old-fashioned bakeries” staffed by immigrants that would “dr[i]ve down their wages.”306
Many economic liberty cases presented similar fact patterns. For example, at issue in the Court’s 1948 decision in Goesaert v. Cleary was a law that prohibited women from serving as bartenders, unless they were the wife or daughter of a male bartender. Justice Frankfurter’s opinion upheld the law, finding that the gender-based classification was permissible.
Recently, the Supreme Court Historical Society hosted a re-enactment of Cleary. Justice Ginsburg presided over the arguments. (When I was in law school, I saw RBG preside over a re-enactment of Muller v. Oregon, in which she reaffirmed Lochner as good law).
SCOTUSBlog’s writeup of the hearing highlighted the public choice implications of the bartender law:
Maynard suggested an alternative basis for the Michigan law, one that Judge Patricia Millett of the U.S. Court of Appeals for the District of Columbia Circuit had offered in her introduction to the event. As Millett first explained, an alliance arose in Michigan between “drys,” who even after the repeal of Prohibition still sought to limit the prevalence of alcohol in society, and the Michigan Bartenders Union, an all-male organization that wanted to limit competition from women. Millett noted that during World War II, many women served as bartenders – “Bessie the Bartender joins Rosie the Riveter.” Banning the licensing of female bartenders served the purposes of both groups.
To be precise, it was a Baptist and Bartender coalition.