CONSTITUTIONAL LAW SPRING 2008 – PROF. FISCHER
Outline for Class 29: Economic Substantive Due Process II
I.
II.
Central Theme: substantive limits on government provided by
the Due Process Clause in V and XIV Amendments with
respect to economic rights
Post Lochner era: Social and intellectual change resulted in a
change of attitude toward governmental regulation (Great
Depression, American legal realism)
1. Nebbia v. New York (1934) [C p. 539] (beginning of
the end)
2. The Switch in Time That Saved Nine (Part II)- West
Coast Hotel v. Parrish (1937) [C p. 541] (overruled
Adkins and Morehead, abandoned principles of
Lochner)
3. United States v. Carolene Products Co. (1938) [C p.
543] - famous footnote 4: “There may be narrower
scope for operation of the presumption of
constitutionality when legislation appears on its face
to be within a specific prohibition of the Constitution,
such as those of the first ten amendments. . . . It is
unnecessary to consider now whether legislation
which restricts those political processes which can
ordinarily be expected to bring about repeal of
undesirable legislation, is to be subjected to more
exacting judicial scrutiny under the general
prohibitions of the Fourteenth Amendment. . . Nor
need we enquire . . whether prejudice against discrete
and insular minorities may be a special condition,
which tends seriously to curtail the operation of those
political processes ordinarily to be relied upon to
protect minorities, and which may call for a
correspondingly more searching judicial inquiry.”
4. Simultaneous overruling of limits placed on
Congress’s commerce power during Lochner era in
e.g. NLRB v. Jones & Laughlin Steel Corp. (1937) [C
p. 131], United States v. Darby (1941) [C p. 134]
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5. After 1937: no state or federal economic regulation
has been found to violate the liberty of contract
protected by substantive due process in
Amendments V or XIV.
6. Current basis of review of economic regulations that
are alleged to violate liberty of contract: rational
basis review, e.g.
 Williamson v. Lee Optical (1955) [C p.545]
 See also Ferguson v. Skrupa (1963) [C p. 546]
7. Court has been willing, however, to invalidate large
punitive damage awards as economic substantive
due process violations
 BMW of North America, Inc. v. Gore (1996) [C p.
547]
 State Farm Mutual Automobile Ins. Co. v.
Campbell (2003) [C p. 551]
 Philip Morris USA v. Williams (2007) [Supp. p.
83]
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