George Will today reviews how the Constitution, and Court decisions, have been barriers to excessive intrusion by the government. In particularly, he focuses on the Supreme Court’s 1905 decision, Lochner v. New York.

What I found most interesting is Will’s focus on how this decision has protected women and minorities from government rules. He writes:

Bernstein recounts how liberty of contract was invoked – sometimes successfully, usually not – against legislatures that declared women unsuited to practice law or limited women to working fewer hours than men. Labor unions representing male bartenders produced Michigan’s law banning female bartenders.

Other laws favored by progressives defended family men from “destructive” competition with female workers who, by working outside the home, “weakened the race.” A feminist correctly argued, on Lochner’s natural rights grounds, that restricting women’s liberty of contract regarding hours of work “amounts to confiscation of whatever amount would have been earned during the forbidden hours.” In 1926, Georgia’s Supreme Court cited Lochner’s affirmation of liberty of contract to overturn a law prohibiting black barbers from cutting white children’s hair.

This is a tremendously over-looked aspect of big government.

Regulations, deals with unions, and government spending programs tend to favor entrenched interests. We still today have laws on the book (such as the Fair Labor and Standards Act) that make our workplace less flexible and limit the ability of workers to negotiate arrangements that make sense for them.

Women are the big losers in this, since women are more likely to seek flexible work arrangements. When will the so-called champions of women’s economic interests recognize this?