The Rise of “Substantive Due Process”
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Dred Scott Case (Scott v Sandford), 1857
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Blacks (not just slaves) are NOT citizens of the U.S., thus have no
standing in U.S. courts
Congress’s attempt to outlaw slavery in the territories (an essential
feature of the Missouri Compromise of 1820) was unconstitutional
because an “act of Congress which deprives a citizen of the U.S. of
his liberty or property, merely because he came himself or brought
his property into a particular [Territory], could hardly be dignified
with the name of due process of law.”
W/o using the term, the Court was articulating a doctrine of
“substantive due process,” e.g., government is prevented from
exercising its power by a substantive right of citizens, in this case
the right to own and dispose of property which is not inherently
illegal to possess.
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The Slaughter-House Cases (1873)
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Louisiana passed a law granting to a single private
company a monopoly over the slaughtering business in
New Orleans, with prices charged set by statute
Five separate legal questions raised
State action depriving non-favored butchers of their
means of livelihood does NOT constitute a denial of
“liberty or property w/o due process of law” by any “past
or possibly admissible interpretation” of that phrase
How does this ruling and opinion relate to that in the
Dred Scott case?
Just as quickly as it had appeared in 1857, the substantive
component of d.p. disappeared in this case
Munn v Illinois (1876)
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Facts:
Question:
Holding/Ruling:
Opinion of Court:
Dissenting Opinion:
Evaluation:
A Twin Constitutional Revolution:
Nationalizing or Incorporating the Bill of Rights and
Reviving Substantive Due Process
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Chicago, Burlington, & Quincy RR v Chicago, 1897
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The Supreme Court backed away from both Munn v Illinois
and Hurtado v. CA (1884) and opened the door to the
application of the Bill of Rights to the states by holding that
states cannot establish just any procedure in the law and call it
“due process;” states can not take private property w/o just
compensation, making the “takings” clause of the 5th Am. the
first provision of the Bill of Rights to be applied to the states.
1.
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5.
Amendment V
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a
presentment or indictment of a grand jury . . . ;
nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be
a witness against himself,
nor be deprived of life, liberty, or property,
without due process of law;
nor shall private property be taken for public use,
without just compensation.
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Chicago, Burlington, & Quincy RR v Chicago, 1897
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The 5th Amendment prohibits the U.S. gov’t. from such action;
now the “due process” clause of the 14th Am. was deemed to
prevent states from doing it either.
The door was opened to applying the protections of the Bill of
Rights to the states as components of the “liberty” which can
not be denied w/o due process
Court also began to [re-]interpret “due process” to mean more
than mere “procedural formality” but included a “rational
basis” as well, i.e., there must be sufficient justification for the
state action depriving a person of liberty or property, and the
courts would decide if there was or not; this was the basis of
“substantive due process”
The Golden Age of Substantive D.P.
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Lochner v New York (1905)
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State’s police power exercised to regulate hours of
work of bakery workers
Challenged as a violation of “liberty” under the due
process clause
 Limiting hours a worker could “contract” to work
[thus limiting amount of wages which could be
earned] infringed “liberty” protected by due process
clause, e.g., “liberty of contract”
 Court substituted its judgment for that of the state
legislature concerning the health hazards facing
bakers, thus concluded there was no rational basis
for allowing the exercise of the state’s police power
The Reappearance/Golden Age of Substantive D.P.
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Lochner v New York (1905)
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This case represented the high water mark of
substantive due process jurisprudence and became
one of the most reviled cases in Court history for what
was viewed as judicial arrogance
The Court would continue to apply this doctrine to
strike down state exercises of police powers to limit
“property rights” over the “public interest” until the
1930s.
The End of Economic Substantive Due Process and
the Triumph of State Police Powers
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NLRB v. J&L Steel Corp. (1937)
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Important Facts: Congress passed the NLRA (aka the
Wagner Act) in 1935 to protect Labor’s right to
organize and to compel Management to accept
collective bargaining procedures to prevent the
disruptive economic impact of strikes and lockouts
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Art. I, Sec. 8, § 3 (commerce clause)
Established NLRB to receive complaints, investigate, and
issue orders against “unfair labor practices” by Management
NLRB sought court enforcement of its orders against J & L
for firing workers involved in union activities
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J & L’s argument: Statute is unconstitutional
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violation of commerce clause powers in that it regulates
“labor relations in production,” not “commerce”
violation of Art. III, Sec 2 in that it vests judicial powers in
an executive branch agency
violation the DP clause of 5th Amend. because it interferes
with the freedom of contract
violation of the 10th Amend. in that it invades powers
reserved to the States, i.e., regulation of intra-state economic
activity
Rulings:
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Scope of act clearly within Congress’s power and not
violation of either Art. I commerce power or 10th Amend
since it regulates only economic activities which “burden or
obstruct” interstate commerce
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Whether or not any given economic activity, in fact, burdens or
obstructs interstate commerce must be decided on a case-bycase basis; clearly strikes and lockouts in major industrial
concerns engaging in interstate commerce qualifies
To separate the act of production (and all the activities
associated with it, such as Labor-Management relations) from
“commerce” is artificial and would require the Court “to shut
our eyes to the plainest facts of our national life.”
Fundamental cause of Labor-Management conflict (with its
potential for halting production and constricting commerce) has
been Management refusal to deal with unions.
To violate the 5th Amend. DP clause, restrictions on “liberty
and property” must be “arbitrary and capricious;” NOT the case
here since owner’s rights must be balanced by the employees’
“correlative right to organize” for the purpose of improving
their conditions of employment.
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West Coast Hotel v. Parrish (1937)
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Important Facts: state passed minimum wage law
for women and minors; Parrish sued her employer
for violating the act
Employer’s argument: Statute is unconstitutional
violation of DP clause of 14th Amend. because it
interferes with the freedom of contract
Ruling: Constitution doesn’t speak of “freedom of
contract, so if it exists, it must be found in the
“liberty” protected by DP
BUT, the DP clause doesn’t protect people from
the legitimate exercise of the state’s police powers
The End of Substantive Due Process
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West Coast Hotel v. Parrish (1937)
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Laws which are “reasonable” in relation to their
subject and adopted in “the interest of the
community” are valid exercises of police power
and do not violate DP (which is clearly understood
to have a substantive component only when the
standard of “reason” has been breached)
Exploitation of a class of workers who have
unequal bargaining power with their employers is
detrimental to the workers’ health and burdens the
public who will be taxed to support these workers
under the welfare system
The End of Substantive Due Process
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West Coast Hotel v. Parrish (1937)
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Four dissenters have an easy case: the Court had
just struck down a minimum wage law in 1923 on
the very grounds that the employer asserts today.
So much for the principle of stare decisis
Historical note: this case (and its companion
NLRB v J&L Steel) involved the “switch in time
which saved nine.” Justice Owen Roberts
switched from his previous opposition to New
Deal legislation to avert the pending Constitutional
crisis many were predicting and which had
inspired FDR’s “court packing” scheme
The End of Economic Substantive Due Process
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West Coast Hotel v. Parrish (1937)
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Further historical notes: without using the
language of substantive DP, the Court has
resurrected the doctrine in the realm of civil
liberties law. The “right of privacy” is now on the
same level as “freedom of contract” previously
was as a constitutional doctrine.
The Rhenquist Court made efforts to salvage some
protection for “property rights” by use of the
“takings” clause of the 5th Amend.
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Nollan v Calf. Coastal Commission (1987)
Dolan v City of Tigard (1994)
BUT Kelo v City of New London (2005)