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Introduction
With its 1905
decision in
the case of Lochner v. New York, the Supreme Court embarked
upon
one of the most controversial courses in its history. Over the
next
three decades, the Court would strike down numerous attempts by state
governments
to improve working conditions or protect consumers, all under the guise
of a liberty found in the Due Process Clause of the Fourteenth
Amendment,
the "liberty of contract." The term "substantive due process" is
often used to describe the approach first used in Lochner--the
finding
of liberties not explicitly protected by the text of the Constitution
to
be impliedly protected by the liberty clause of the Fourteenth
Amendment.
In the 1960s, long after the Court repudiated its Lochner line
of
cases, substantive due process became the basis for protecting personal
rights such as the right of privacy, the right to maintain intimate
family
relationships, etc.
Beginning in
the 1930s,
the Court backed away from substantive due process in the context of
economic
regulation in cases such as Nebbia v. New York. The trend
toward increasing deference to state regulation of economic matters
continued,
until by the time of Williamson v. Lee Optical in 1955, the
Court
had essentially given up entirely the task of reviewing economic
regulation
under the Due Process Clause.
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Caskets Anyone?
A shopper in a Chicago Costco reads information
about the retailer's six models of caskets. (Photo: Nam Y.
Huh (AP))
Although challenges to state economic regulation have
had
little success at the Supreme Court level since Williamson, better luck is
sometimes had in the lower federal courts. For example, in Craigmiles v Giles, 312 F 3rd 220
(2002), the Sixth Circuit struck down a Tennessee law, pushed by that
state's funeral directors, that prohibited anyone not having a state
funeral director's license from selling caskets to state customers at
"the time of need." The Court saw the law as economic
protectionism (designed to limit price competition from national
discount chains such as Costco) that failed to meet even the
deferential rational basis test. On the other hand, a
nearly identical Okalahoma law was upheld by the Tenth Circuit in
Powers v Harris
(8/23/2004). The Tenth Circuit concluded the law was "rationally
related to the legitimate state interest of intrastate industry
protection."
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THE FOUR HORSEMEN OF THE
APOCALYPSE
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Pierce
Butler
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James
McReynolds
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George
Sutherland
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Willis
Van Devanter
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Four conservative justices
(the so-called "Four Horseman of the Apocalypse") insisted that the
Constitution protected the "liberty of contract" and helped to strike
down numerous pieces of economic legislation (including minimum wage
laws and FDR's "New Deal" programs) in the 1920s and early 1930s.
All four justices dissented in Nebbia
v New York (1934), when the tide turned in favor of upholding
economic legislation.
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The Due
Process Clause:
Joseph Lochner
Questions
1. Would the Lochner
Court likely have recognized a constitutional right to contract to sell
drugs or sexual services? Why not? What result if a state had
attempted
to limit the hours that coal miners could work underground?
2. Do you find it
surprising
that three years after Lochner a unanimous Court upheld an
Oregon
law setting a maximum number of hours that female employees might work?
3. Look closely at
Justice
Holmes dissent in Lochner. Why might Judge Richard Posner
have characterized the Holmes dissent as "the best Supreme Court
opinion
ever written"?
4.. What
factors might
have contributed to the Court's backing away from the Lochner
line
of cases in the 1930s?
5. Some have
argued
that by the time of Williamson the Court had gone too far in
the
direction of deference to state judgments about economic matters.
Do you agree? Should the Court insist that the justifications
offered
in litigation to support economic legislation at least plausibly be the
justifications that motivated legislators to enact the law in question?
6. Is protecting the economic interests of a state industry (such
as the interest of funeral directors in having a monopoly on the sale
of "time-of-need" caskets) a legitimate state interest?
Oliver Wendell Holmes
--From the dissent of
Oliver Wendell Holmes in Lochner v
New York (1905)
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