Substantive Due Process:
The Rise and Demise of Liberty of Contract
Artemus Ward
Dept. of Political Science
Northern Illinois University
aeward@niu.edu
Police Power
• What is the “police power”?
• The inherent authority of the state to act to
protect the health, safety, morals, and
general welfare of the people.
• Examples of the police power are best seen
in criminal law which is enacted by states to
protect its people: murder, motor vehicle
regulation, alcohol and drug laws, etc.
• While the federal government may limit
certain forms of state police power under the
U.S. Constitution, the federal government
does not possess a general police power the
way that states do.
• The federal government’s powers are limited
and defined by the Constitution
• One of the ways that state police power is
limited is through the Constitution’s
guarantee of due process.
Magna Carta
(1215)
• What is due process?
• The concept emanates from the Magna Carta (1215) where the Lords
sought formal legal protection from arbitrary treatment by the King:
• “No free man shall be seized or imprisoned, or stripped of his rights or
possessions, or outlawed or exiled, or deprived of his standing in any
other way, nor will we proceed with force against him, or send others to
do so, except by the lawful judgment of his equals or by the law of the
land.”
• The phrase due process of law first appeared in a statutory rendition of
Magna Carta in 1354 during the reign of Edward III of England, as follows:
“No man of what state or condition he be, shall be put out of his lands or
tenements nor taken, nor disinherited, nor put to death, without he be
brought to answer by due process of law.”
Procedural v. Substantive Due Process
• Both the 5th and the 14th Amendments to the U.S. Constitution
contain a Due Process Clause.
• The 5th states: “nor shall any person…be deprived of life, liberty, or
property, without due process of law.”
• The 14th states: “nor shall any state deprive any person of life,
liberty, or property, without due process of law.”
• What does this mean?
• Procedural Due Process – guarantees individuals a fair and
impartial legal process in criminal and civil matters (e.g., the right
to sufficient notice, the right to an impartial arbiter, the right to give
testimony and admit relevant evidence at hearings, etc.).
• Substantive Due Process – protects individuals
against majoritarian policy enactments which exceed the limits of
governmental authority (i.e., a majority’s enactment is not law, and
cannot be enforced regardless of how fair the process of
enforcement actually is).
Substantive Due Process Origins
• Though courts had discussed the
substantive component of due process
(without using the phrase) prior to the
Civil War, it was Chief Justice Robert
Taney’s opinion in Dred Scott v. Sanford
(1857) that most point to as originating
the concept in American constitutional
law.
• He declared the Missouri Compromise
unconstitutional because “An act of
Congress which deprives a citizen of the
United States of his liberty or property [a
slave], 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.”
The Slaughter-House Cases (1873)
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Following the passage of the 14th Amendment (1868), the Court
decided the Slaughter-House Cases (1873). New Orleans
butchers were dumping animal waste in the city’s water supply
and the state passed a law regulating slaughtering – forcing
butchers to slaughter their animals at a central location away
from water supplies. The butchers argued that the newly
enacted 14th Amendment protected their “liberty” to conduct
their business affairs without state encroachment.
Writing for the 5-4 majority, Justice Samuel Miller took a narrow
view of the 14th Amendment and ruled that it did not restrict the
police powers of the state. With regard to the Due Process
Clause, the Court held: “Under no construction of that provision
that we have ever seen, or any that we deem admissible, can
the restraint imposed by the state of Louisiana upon the
exercise of their trade by butchers of New Orleans be held to be
a deprivation of property within the meaning of that provision.”
Yet the dissenters, led by Justice Stephen J. Field, said that the
14th Amendment protected individual rights such as the “liberty”
or freedom to pursue an economic occupation.
Field’s dissent would become influential over time.
The Rise of Substantive Due Process
• The theory of substantive due process slowly
gained traction.
• Thomas M. Cooley published his influential
treatise Constitutional Limitations (1868), which
elevated the word “liberty” within the due
process clause to the status of an important
constitutional right that would serve as a
mechanism for protecting property rights and for
restricting government regulation. By 1890 it
was in its 6th edition.
• Herbert Spencer was an influential theorist who
promoted social Darwinism—the idea that
government should merely maintain order and
property rights and the “fittest” would survive
and succeed. His book Social Statics (1851) and
other works would prove influential at the end of
the 19th and early 20th centuries.
Munn v. Illinois (1877)
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In Munn, the Court began encouraging substantive due
process arguments. The Court upheld the state regulation—in
this case a state regulatory board to fix maximum rates grain
elevators could charge farmers and merchants—but instead
of foreclosing any substantive due process claims the way the
Court had done in Slaughter-House, the Court said that in
some cases such regulations could be struck down.
Specifically, in his majority opinion Chief Justice Morrison
Waite said it depended on the nature of the regulation: “We
find that when private property is ‘affected with a public
interest it ceases to be [of private right] only.’”
This doctrine came to be known as the business-affectedwith-a-public-interest doctrine (BAPI). The Court used it in
Munn to reason that the grain elevator business played a
crucial role in the distribution of food stuffs to the nation and
was therefore an industry that was affected with the public
interest and subject to regulation.
In dissent, Justice Stephen J. Field railed against the test:
“There is hardly an enterprise or business engaging the
attention and labor of any considerable portion of the
community, in which the public has not an interest in the
sense in which that term is used by the court.”
Mugler v. Kansas (1887)
• The Court considered a state law that prohibited the
manufacture and sale of liquor. Although the majority
upheld the regulation against a substantive due process
challenge, the Court’s opinion, written by Justice John
Marshall Harlan I represented something of a break with
Munn.
• First, it articulated a view that not “every statute enacted
ostensibly for the promotion of [the public interest] is to be
accepted as a legitimate exertion of police powers of the
state.”
• Second, the Court suggested it would carefully scrutinize
state action: “There are…limits beyond which legislation
cannot rightfully go…. If, therefore, a statute purporting to
have been enacted to protect the public health, the public
morals, or the public safety, has no real or substantial
relation to those objects, or is a palpable invasion of rights
secured by the fundamental law, it is the duty of the courts
to so adjudge, and thereby give effect to the Constitution.”
Chicago, Milwaukee & St. Paul Railway
v. Minnesota (1890)
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For the first time, the justices struck down a state regulation on the
ground that it interfered with due process guarantees.
The state established a commission to set railroad rates for transportation
of goods and for warehouse storage. The railroad argued that the
commission had interfered with “its property” without providing due
process of law.
Writing for the majority, Justice Samuel Blatchford held for the railroad on
both procedural and substantive due process grounds. He examined the
law in terms of the reasonableness standard set forth in Mugler: “The
question of the reasonableness of a rate of charge for transportation by a
railroad company…is eminently a question for judicial investigation,
requiring due process of law for its determination.”
He found that the law deprived the company of its property in an unfair
way: “If the company is deprived of the power of charging reasonable
rates…and such deprivation takes place in the absence of an
investigation by judicial machinery, it is deprived of the lawful use of its
property, and thus, in substance and effect, of the property itself, without
due process of law.”
In the 14 years since Slaughter-House, the Court had moved from a
refusal to inject substance into the due process to a near affirmation of
the doctrine of substantive due process.
Allgeyer v. Louisiana (1897)
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With the alleged purpose of preventing fraud, the state enacted a law
that barred its citizens and corporations from doing business with outof-state insurance companies, unless they complied with a specified
set of requirements. Among those requirements were stipulations that
the out-of-state company must establish as place of business in the
state and must have an authorized agent inside the state.
Justice Rufus Peckham, writing for a unanimous Court, held the state
law unconstitutional on substantive due process grounds:
"The 'liberty' mentioned in [the Fourteenth] amendment means not
only the right of the citizen to be free from the mere physical restraint
of his person, as by incarceration, but the term is deemed to embrace
the right of the citizen to be free in the enjoyment of all his faculties, to
be free to use them in all lawful ways, to live and work where he will,
to earn his livelihood by any lawful calling, to pursue any livelihood
or avocation, and for that purpose to enter into all contracts which
may be proper, necessary, and essential to his carrying out to a
successful conclusion the purposes above mentioned.“
In just under 25 years, business interests had pushed the Court
rejecting substantive due process to accepting it and equating it with a
fundamental right to liberty of contract.
Holden v. Hardy (1898)
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The Court examined a Utah law prohibiting companies engaged in the
excavation of mines from working their employees more than 8 hours in a
day, except in emergency situations.
Attorneys challenging the law claimed: “It is…not within the power of the
legislature to prevent persons who are…perfectly competent to contract,
from entering into employment and voluntarily making contracts in
relation thereto merely because the employment…may be considered by
the legislature to be dangerous or injurious to the health of the employee;
and if such right to contract cannot be prevented, it certainly cannot be
restricted by the legislature to suit its own ideas of the ability of the
employee to stand the physical and mental strain incident to the work.”
The state asserted that the challenged statute was a “health regulation”
and within the state’s power because it was aimed at “preserving to a
citizen his ability to work and support himself.”
The Supreme Court, in an opinion by Justice Henry Brown, reiterated its
Mugler position: “The question in each case is whether the legislature
has adopted the statute in exercise of a reasonable discretion or whether
its actions be a mere excuse for an unjust discrimination.” The Court
deemed the regulation “reasonable”; that is it did not impinge on the
liberty of contract because the state had well justified its interest in
protecting miners from their jobs’ unique health problems and dangerous
conditions.
Lochner v. New York (1905)
The Facts
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In New York in the late 1800s, bakers were paid by
the day, not by the hour. $2 per day was a typical
wage.
Unsurprisingly, bakers favored shorter work days,
as they assumed that they would continue to
receive their current pay levels whether they
worked 10 hours or they worked 14 hours. They
also believed that long work hours increased their
risk of developing various lung diseases.
A bill, supported by bakers, to reduce the workday
for bakers to 10 hours was narrowly defeated in
the New York Assembly in 1887.
By the mid-1890s, larger bakeries in New York
were unionized and generally adopted 60-hour
work weeks.
The large bakeries, however, faced competition
from smaller bakeries which demanded longer
hours from their employees (the employees often
were required to sleep in or near the bakeries).
Lochner’s Home Bakery
Utica, New York
Lochner v. New York (1905)
The Facts
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While unionized bakers continued to lobby for a ten-hour law,
a muckraking New York Press reporter published stories about
unsanitary conditions in smaller bakeries, including accounts
of finding open sewers and cockroaches on baking utensils.
A state factory inspector's report confirmed that conditions
were unsanitary and led to growing public support for a law
regulating bakeries.
The state legislature passed the Bakeshop Act of 1897. It
included sections regulating sanitary conditions (e.g., no
sleeping in a bake room) and a section strongly supported by
the baker's union, establishing the 60-hour maximum hour
maximum work week for bakers.
Utica bakery owner Joseph Lochner had a longstanding
dispute with the baker's union. Union officials persuaded state
factory inspectors to file a complaint against Lochner for
employing a baker named Aman Schmitter for more than sixty
hours in one week.
In February 1903, Lochner was tried but offered no defense.
He was found guilty of violating the Bakeshop Act and
sentenced to pay a fine of $50.
Joseph Lochner
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The original U.S.
Senate Chamber in
the Capitol became
available when the
Senate moved into its
current chamber in
1861. When the
Senators moved out,
the U.S. Supreme
Court moved in.
The Court met in the
old Senate Chamber
from 1861 until they
received their own
building in 1935.
This photo shows the
old Senate Chamber
converted for the
Supreme Court.
Notice the Ladies
wearing hats in the
gallery as staff
prepare for the
justices, who decided
Lochner, to take the
bench.
Lochner v. New York (1905)
Justice Rufus Peckham delivered the 5-4 majority opinion
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“The statute necessarily interferes with the right of contract between
the employer and employees, concerning the number of hours in
which the latter may labor in the bakery of the employer. The general
right to make a contract in relation to his business is part of the liberty
of the individual protected by the 14th Amendment of the Federal
Constitution. Under that provision no state can deprive any person of
life, liberty, or property without due process of law. The right to
purchase or to sell labor is part of the liberty protected by this
amendment, unless there are circumstances which exclude the right.”
“To the common understanding, the trade of a baker has never been
regarded as an unhealthy one….. “Clean and wholesome bread does
not depend upon whether the baker works but ten hours per day or
only sixty hours a week.”
Peckham explained that under a broad understanding of the police
powers of the state (to protect the health, safety, welfare, and morals
of the people) anything could be regulated: “Not only the hours of
employees, but the hours of employers, could be regulated, and
doctors, lawyers, scientists, all professional men, as well as athletes
and artisans, could be forbidden to fatigue their brains and bodies by
prolonged hours of exercise, lest the fighting strength of the state be
impaired.”
Lochner v. New York (1905)
Justice Oliver Wendell Holmes, Jr.
Dissenting
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“This case is decided upon an economic theory which a large part of the country
does not entertain. If it were a question whether I agreed with that theory, I should
desire to study it further and long before making up my mind. But I do not
conceive that to be my duty, because I strongly believe that my agreement or
disagreement has nothing to do with the right of a majority to embody their
opinions in law. It is settled by various decisions of this court that state
constitutions and state laws may regulate life in many ways which we as
legislators might think as injudicious, or if you like as tyrannical, as this, and
which, equally with this, interfere with the liberty to contract.”
“The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics.”
“Some of these laws embody convictions or prejudices which judges are likely to
share. Some may not. But a Constitution is not intended to embody a
particular economic theory, whether of paternalism and the organic relation of
the citizen to the state or of laissez faire. It is made for people of fundamentally
differing views, and the accident of our finding certain opinions natural and
familiar, or novel, and even shocking, ought not to conclude our judgment upon
the question whether statutes embodying them conflict with the Constitution of the
United States.”
National Consumer’s League
• Calls for improved working conditions for women
and children began to pick up steam around the
nation.
• The organization most responsible for change, and
for the Court again addressing issues of gender, was
the National Consumer’s League (NCL).
• Through the work of its national staff and numerous
affiliates, the NCL secured maximum-hour or other
restrictions on night work for women in 18 states.
• The NCL asked Louis Brandeis, the brother-in-law of
one of the organization’s most active members and
already a famous progressive lawyer, to take the
case of Muller v. Oregon (1908).
• Brandeis agreed but under one condition—that he
have sole control over the litigation—Oregon agreed
and allowed the NCL (and Brandeis) to represent the
group in Court.
Louis Brandeis
“Brandeis Brief” (1908)
• Brandeis knew that in order to win the case, he would have to present
information to show that the dangers to women working more than 10
hours a day made them more deserving of state protection than the
bakers in Lochner, and by proving that there was something different
about women that justified an exception to the freedom of contract
doctrine.
• NCL researchers compiled information about the possible detrimental
effects of long work hours on women’s health and morals, as well as on
the health and welfare of their children, including t heir unborn children.
• Brandeis stressed women’s differences from men and the
reasonableness of the state’s legislation (low-level scrutiny).
• In fact, the brief had only 3 pages of legal argument and 110 pages of
sociological data culled largely from European studies of the negative
effects of long hours of work on women’s health and reproductive
capabilities.
• Some examples…
“Brandeis Brief” (1908)
• “The leading countries in Europe in which women are largely
employed in factory or similar work have found it necessary to take
action for the protection of their health and safety and the public
welfare, and have enacted laws limiting the hours of labor for adult
women…”
• “Twenty states of the Union…have enacted laws limiting the hours
of labor for adult women…. In no state has any such law been held
unconstitutional, except in Illinois…”
• Brandeis provided reports such as:
• “Report of Select Committee on Shops Early Closing Bill, British
House of Commons, 1895” where a doctor describes the
deterioration of the health of women who work long hours.
• “Report of the Maine Bureau of Industrial and Labor Statistics, 1888”
where a doctor described the adverse effects of standing for 8-10
hours a day – linking it with infant mortality rates.
• Should judges consider such information?
Muller v. Oregon
(1908)
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What are the facts?
A 1903 Oregon law said “That no female (shall) be employed in any mechanical
establishment, or factory, or laundry in this state more than ten hours during any
one day. The hours of work may be so arranged as to permit the employment of
females at any time so that they shall not work more than ten hours during the
twenty-four hours of any one day.”
A violation of the provision resulted in a misdemeanor subject to a fine of not
less than $10 nor more than $25.
The state brought charges against Curt Muller, a laundry owner, for violating the
statute. A trial resulted in a verdict against the defendant, who was sentenced to
pay a fine of $10. The Supreme Court of the state affirmed the conviction and
Muller challenged the law under liberty of contract.
Justice David Brewer delivered the unanimous opinion.
Does the Court mention the Brandeis Brief?
“It may not be amiss, in the present case, before examining the constitutional
question, to notice the course of legislation, as well as expressions of opinion
from other than judicial sources. In the brief filed by Mr. Louis d. Brandeis for the
defendant…is a very copious collection of all these matters.”
Muller v. Oregon (1908)
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Should the Court consider the kind of sociological and medical data
included in the brief or should it just stick to the law?
Justice Brewer said that the data is not controlling, the law is, but the
Court can consider this information to help understand the facts:
“The legislation and opinions referred to in the margin may not be,
technically speaking, authorities, and in them is little or no discussion
of the constitutional question presented to us for determination, yet
they are significant of a widespread belief that woman’s physical
structure, and the functions she performs in consequence thereof,
justify special legislation restricting or qualifying the conditions under
which she should be permitted to toil. Constitutional questions, it is
true, are not settled by even a consensus of present public opinion, for
it is the peculiar value of a written constitution that places in
unchanging form limitations upon legislative action, and thus gives a
permanence and stability to popular government which otherwise
would be lacking. At the same time, when question of fact is debated
and debatable, and the extent to which a special constitutional
limitation goes in affected by the truth in respect to that fact, a
widespread and long continued belief concerning it is worthy of
consideration. We take judicial cognizance of all matters of general
knowledge.”
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Muller v. Oregon (1908)
What does the Court say about liberty, freedom of contract?
It is not absolute and must be balanced against the police power of the
state: “It is undoubtedly true, as more than once declared by this court, that
the general right to contract in relation to one’s business is part of the liberty
if the individual, protected by the 14th Amendment to the Federal
Constitution; yet it is equally well settled that this liberty in not absolute and
extending to all contracts, and that a state may, without conflicting with the
provisions of the 14th Amendment, restrict in many respects the individual’s
power of contract.”
What does the Court say about women? What is their role in society?
They have special roles as child-bearers and therefore can be protected:
“That woman’s physical structure and the performance of maternal functions
place her at a disadvantage in the struggle for subsistence is obvious. This
is especially true when the burdens of motherhood are upon her. Even
when they are not, by abundant testimony of the medical fraternity
continuance for a long time on her feet at work, repeating this from day to
day, tends to injurious effects upon the body, and, as healthy mothers are
essential to vigorous offspring, the physical well-being of woman becomes
an object of public interest and care in order to preserve the strength and
vigor of the race.”
Muller v. Oregon (1908)
• What does the Court say about the differences between
men and women? Is there justification for special
legislation that targets women but not men?
• “History discloses the fact that woman has always been
dependent upon man. He established his control at the
outset by superior physical strength… (which) has
continued to the present…. It is impossible to close one’s
eyes to the fact that she still looks to her brother and
depends on him…. The two sexes differ in structure of
body, in the functions to be performed by each, in the
amount of physical strength, in the capacity for long
continued labor, particularly when done standing, the
influence of vigorous health upon the future well-being of
the race, the self-reliance which enables one to assert full
rights, and in the capacity to maintain the struggle for
subsistence. This difference justifies a difference in
legislation, and upholds that which is designed to
compensate for some of the burdens which rest upon
her.”
Muller v. Oregon (1908)
• Does the Court mention the fact that women cannot
vote in Oregon?
• Yes, but it doesn’t matter: “We have not referred in this
discussion to the denial of elective franchise in the
state of Oregon, for while that may disclose a lack of
political equality in all things with her brother, that is not
of itself decisive. The reason runs deeper, and rests in
the inherent difference between the two sexes, and in
the different functions in life which they perform.”
• Do they overturn Lochner?
• No. They distinguish it: “For these reasons, and without
questioning in any respect the decision in Lochner v.
New York, we are of the opinion that it cannot be
adjudged that the act in question is in conflict with the
Federal Constitution, so far as it respects the work of a
female in a laundry, and the judgment of the Supreme
Court of Oregon is affirmed.”
Muller’s
Progeny
• Muller had an immediate effect. State courts began to hold other forms of
protective legislation for women constitutional, whether or not they
involved the kind of 10-hour maximums at issue in Muller.
• Thus, 8-hour maximum work laws in a variety of professions, outright
bans on night work for women, and minimum-wage laws for women were
routinely upheld under the Muller rationale.
• Much of this Court-sanctioned governmental protection, however, worked
to keep women out of high-paying evening jobs or positions that they
desperately needed to support their families.
Triangle Shirtwaist Factory Fire (1911)
Youtube clip: PBS, New York – 4 (36 min.)
Power to the People @ 1:07:56 – 1:44:08
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Women began attending college in higher numbers and entering the workforce
out of necessity.
Young women, especially immigrants, were confined to low-paying jobs in
substandard conditions.
The Triangle Shirtwaist Factory Fire in New York City put the issue on the
national agenda.
In its wake, New Yorkers demanded and the legislature passed laws protecting
workers from dangerous working conditions.
Suffragists Parade Down Fifth Avenue (1917).
Advocates march in October 1917, displaying placards containing the signatures of
over one million New York women demanding to vote.
Stettler v. O’Hara (1917):
Brandeis Joins the Court
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The NCL’s efforts to protect women from unscrupulous
employers were victorious in the Supreme Court in
several additional cases, but then ran into trouble in the
early 1920s.
In Stettler v. O’Hara (1917) a lower court decision
upholding Oregon’s minimum-wage law for women was
appealed to the Supreme Court.
Conservatives argued that freedom of contract and
Lochner were controlling.
Brandeis was again hired and he filed another brief
explaining how a living wage was essential to the health,
welfare, and morals of women.
But before the Supreme Court could decide the case,
Brandeis was appointed to it!
The case was reargued and the justices split 4-4 with
Brandeis not participating, thus sustaining the lower court
decision.
Louis Brandeis
Bunting v. Oregon (1917)
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The next NCL sponsored case, Bunting v. Oregon (1917)
attracted significant attention.
Brandeis’ hand-picked successor as counsel for the NCL,
Felix Frankfurter, used the same kinds of arguments
Brandeis had used in Muller and Stettler.
The state law said that “no person shall be employed in
any mill, factory, or manufacturing establishment in this
state more than 10 hours in any one day.”
In a 5-3 decision, again with Brandeis not participating,
the Court extended Muller to uphold the law.
Writing for the majority, Justice Joseph McKenna did not
even mention Lochner and explained: although Bunting
contended that “the law…is not either necessary or useful
‘for the preservation of the health of employees’,” no
evidence was provided to support that contention.
Moreover, the judgment of the Oregon legislature and
supreme court was that “‘It cannot be held, as a matter of
law, that the legislative requirement is unreasonable or
arbitrary.” McKenna concluded, therefore, that no further
discussion was “necessary” and upheld the law.
th
19
Amendment (1920)
• Although the NCL was
victorious in Muller and Bunting,
it did not anticipate the effect
that the controversy within the
suffrage movement would have
on pending litigation.
• In 1920, the movement was
successful in overturning Minor
v. Happersett (1875) by passing
the 19th Amendment granting
women the right to vote—50
years after the 15th Amendment
guaranteed voting rights to
African-American males.
The National Woman’s Party and
an Equal Rights Amendment
• Once the 19th was ratified, attempts were
made to secure other rights for women.
• Women in the more radical branch of the
suffrage movement, represented by the
National Woman’s Party (NWP), proposed
the addition of an equal rights amendment to
the Constitution.
• Progressives and those in the NCL were
horrified because they believed that an equal
rights amendment would immediately
overturn Muller and Bunting and invalidate
all the protective legislation they had lobbied
so hard to enact.
Alice Paul: Co-founder NWP
Adkins v. Children’s Hospital (1923)
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When Adkins came to the Court, the NCL was ready.
Adkins involved the constitutionality of a Washington, DC minimum
wage law for women.
The NWP filed an amicus brief urging the Court to rule that, in light of
the 19th Amendment, women should be viewed on a truly equal footing
with men. The division among women between equal rights and
protective legislation was now exposed to public view and was a debate
resurrected again and again both in the Court and in public discourse—
and continues to this day.
Many thought the Court had essentially overruled Lochner in the
Bunting decision, which upheld limits on factory and mill workers.
Yet in Adkins, the Court seemed to resurrect Lochner, ruling 5-4 that
minimum wage laws for women were an unconstitutional violation of
liberty of contract.
But the Court did not overturn Muller and Bunting, choosing instead to
distinguish them. In dissent, Justice Oliver Wendell Holmes, Jr. noted
that the term “due process of law” had now evolved into the “dogma,
Liberty of Contract.”
It was obvious to many that the Court had been influenced by the
passage of the 19th Amendment and the pro-equality arguments of the
NWP. But the Court has also been transformed by a number Republican
appointments that turned the tide solidly in favor of liberty of contract.
Meyer v. Nebraska (1923)
Pierce v. Society of Sisters (1925)
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The Court also applied the doctrine of substantive due process to regulations
outside of business. In Meyer, the justices considered a state law, enacted after
WWI, that forbade schools to teach German and other foreign languages to
students below 8th grade.
In an opinion by Justice James McReynolds, the Court struck down the law
reasoning that the word “liberty” in the 14th Amendment covers “the right of the
individual…to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those
privileges long recognized at common law as essential to the orderly pursuit of
happiness by free men.”
According to the Court, government cannot interfere with these liberties, “under
the guise of protecting the public interest, by legislative action which is arbitrary or
without reasonable relation to some purpose within the competency of the State to
that effect.”
In Pierce, the Court again invoked substantive due process to strike down a state
law that mandated public education for children, including those who had been
attending religious schools. Writing for the majority, Justice James McReynolds
reasoned that parents have the primary responsibility for their children’s education
and therefore have the “liberty” to choose where and how to obtain it.
The Four Horsemen of the Apocalypse
•
Four conservative justices (l-r George Sutherland, Willis Van Devanter, James
McReynolds, and Pierce Butler - the so-called "Four Horseman of the
Apocalypse") insisted that the Constitution protected the "liberty of contract.“ They
were in the majority in Adkins and helped to strike down numerous pieces of
economic legislation (including minimum wage laws and FDR's "New Deal"
programs such as the National Industrial Recovery Act) in the 1920s and early
1930s.
Nebbia v. New York (1934)
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•
•
In Nebbia, the New York legislature created the Milk Control Board with the power
to fix minimum and maximum prices stores could charge consumers for milk.
Nebbia was a store owner who claimed the 14th Amendment’s Due Process
Clause protected his right to conduct his business as he saw fit. New York
countered with an extensive study showing that milk was essential to public health
and could therefore be regulated.
The Court upheld the law 5-4. Justice Owen Roberts said: “The due process
clause makes no mention of sales or of prices any more than it speaks of
business or contracts or buildings or other incidents of property.” He noted the
problems associated with leaving milk to market competition: prices are lowered
and the dairy farmer cannot survive, thereby jeopardizing the availability of milk
for consumers.
In dissent, Justice James McReynolds noted that the Court had never allowed
price controls and that this case would allow states to fix prices for farm products,
groceries, shoes, clothing, and all necessities of modern civilization, as well as
labor: “Not only does the statute interfere arbitrarily with the rights of the little
grocer to conduct his business according to standards long accepted—complete
destruction may follow; but it takes away the liberty of 12,000,000 consumers to
buy a necessity of life in an open market….To him with less than 9 cents it says:
You cannot procure a quart of milk from the grocer although he is anxious to
accept what you can pay and the demands of your household are urgent!”
Morehead v. New York ex rel. Tipaldo (1936)
•
•
•
Was liberty of contract dead? In Morehead, the Court
considered a 1933 minimum wage law that “declared it
to be against public policy for any employer to employ
any woman at an oppressive and unreasonable wage.”
It defined as unreasonable a wage that was “both less
than the fair and reasonable value of the services
rendered and less than sufficient to meet the minimum
cost of living necessary for health.” Women could file
complaints with a state board. Tipaldo owned a laundry
and paid his employees $7-$10 per week even though
the board had set $12.40 as a minimum wage.
The radical NWP supported Tipaldo and argued that
the New York law was unconstitutional on Equal
Protection grounds because it treated the sexes
differently. However, the moderate NCL defended the
law.
This time, Justice Own Roberts sided with the four
conservatives and they struck down the law 5-4. Writing
for the majority, Justice Pierce Butler was emphatic:
“Freedom of contract is the general rule and restraint is
the exception.”
Migrant Mother With Children, California - 1936. Resettlement Administration.
FDR’s Court Packing Plan
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•
•
Morehead was widely criticized by
both liberals and conservatives who
sympathized with the plight of women
and children workers. Even the
Republican Party’s 1936 platform
included support for minimum wage
and maximum hour statutes.
Roosevelt increased pressure on the
justices by proposing to enlarge the
size of the Court and thus, through
his new appointees, win more
favorable decisions.
Both Republicans and Democrats
were outraged by this attack on the
court's independence and forced
Roosevelt to withdraw his proposal.
No president since has attempted to
directly undermine the court's
constitutional autonomy, and the size
of the court has remained fixed (since
1869) at nine justices. This cartoon
by Elderman appeared in the
February 6, 1937, Washington Post.
West Coast Hotel v. Parrish (1937)
•
•
•
The Court abandoned the liberty of contract doctrine, explicitly
overruled Adkins, and upheld a minimum-wage law for women.
Chief Justice Charles Evans Hughes explained that the entire
area of the law should be re-examined because of the
“economic conditions which have supervened”:
“There is an additional and compelling consideration which
recent economic experience has brought into a strong light.
The exploitation of a class of workers who are in an unequal
position with respect to bargaining power and are thus
relatively defenceless against the denial of a living wage in not
only detrimental to their health and well being but casts a direct
burden for their support upon the community. What these
workers lose in wages the taxpayers are called upon to pay.
The bare cost of living must be met. We may take judicial
notice of the unparalleled demands for relief which arose
during the recent period of depression and still continue to an
alarming extent….The community is not bound to provide what
is in effect a subsidy for unconscionable employers. The
community may direct its law-makinig power to correct the
abuse which springs from their selfish disregard of the public
interest.”
West Coast Hotel v. Parrish (1937)
• In dissent, Justice George Sutherland reiterated
the liberty of contract doctrine and accused the
majority of judicial activism:
• “The meaning of the Constitution does not change
with the ebb and flow of economic events.”
• “The judicial function is that of interpretation; it
does not include the power of amendment under
the guise of interpretation.”
• “If the Constitution, intelligently and reasonably
construed in the light of these principles, stands in
the way of desirable legislation, the blame must
rest upon that instrument, and not upon the Court
for enforcing it according to its terms. The remedy
in that situation—and the only true remedy—is to
amend the Constitution.”
• After this case, the Court never again invoked
“liberty of contract” to strike down a government
economic regulation.
Where FDR’s Court-packing bill
failed, legislation making
retirement more attractive
succeeded. The 1937 Retirement
Act allowed Supreme Court
justices to retire in “senior status”
and sit on lower federal courts
when designated by the Chief
Justice of the United States. Van
Devanter was the first justice to
take advantage of this provision.
Finally “Packing” the Court
•
•
•
•
•
•
•
•
•
•
•
In subsequent terms, all of Van
Devanter’s colleagues (except for
Owen Roberts) departed under FDR.
In the end, President Roosevelt
appointed nine Justices to Court,
more than any other President except
George Washington, who appointed
eleven. By 1941, eight of the nine
Justices were Roosevelt appointees.
Hugo Black – 1937
Stanley F. Reed – 1938
Felix Frankfurter – 1939
William O. Douglas – 1939
Frank Murphy – 1940
Harlan Fiske Stone (Chief Justice) –
1941
James F. Byrnes – 1941
Robert H. Jackson – 1941
Wiley Rutledge – 1943
•
•
•
•
Aftermath
By United States v. Darby Lumber (1941) the Court unequivocally upheld
Congress’s authority to pass the federal Fair Labor Standards Act, which
regulated maximum hours and minimum wages for ALL workers and is
still in effect today.
By Williamson v. Lee Optical (1955) the Court was unanimously
upholding state regulations of economic matters under the rational basis
test. In Williamson, a state law regulated optical care by allowing
ophthalmologists and optometrists to examine eyes, write prescriptions,
and fit glasses but not opticians who could only grind lenses and fill
prescriptions.
Writing for the Court Justice William O. Douglas explained that the Court
should not use the Due Process Clause of the 14th Amendment to strike
down state laws, regulatory of business and industrial conditions,
because they may be unwise. He said: “The law need not be in every
respect logically consistent with its aims to be constitutional. It is enough
that there is an evil at hand for correction, and that it might be thought
that the particular legislative measure was a rational way to correct it.”
Finally, he said that if the people don’t like the laws that are passed, they
can resort to the polls.
For a time, it appeared that substantive due process was dead. Yet, in the
1960s, however, the liberal justices who had agreed that economic
substantive due process (liberty of contract) was no longer good law
divided over another aspect of substantive due process: personal privacy.
Griswold v. Connecticut (1965)
•
•
•
•
In Griswold, the Court was asked to strike down a state law that
banned the distribution of contraceptives on the ground that the statute
violated the right to privacy. Yet there is no provision of the Constitution
that explicitly guarantees a right of privacy. The Court struck down the
law and declared that the Constitution did indeed protect privacy rights,
but the justices did not agree on which section of the Constitution
required that conclusion.
Writing for the majority, Justice Douglas said that various specific
provisions gave rise to zones of privacy.
Some argued that privacy rights are embedded in the Due Process
Clause of the 14th Amendment. Justice John Marshall Harlan II
asserted this substantive due process approach to privacy in his
concurring opinion: “In my view, the proper constitutional inquiry in this
case is whether this Connecticut statute infringes the Due Process
Clause of the Fourteenth Amendment because the enactment violates
basic values ‘implicit in the concept of ordered liberty.’…The Due
Process Clause of the Fourteenth Amendment stands, in my opinion,
on its own bottom.”
Justice Hugo Black thought Harlan and the other justices in the majority
had gone too far and wrote in dissent: “I like my privacy as well as the
next one, but I am nevertheless compelled to admit that government
has a right to invade it unless prohibited by some specific constitutional
provision.”
From Privacy to Liberty
•
•
•
•
In the years after Griswold, the Court used the due process
approach to privacy to expand a number of liberties. Most
notable was Roe v. Wade (1973) that established the right
to abortion. Writing for the majority, Justice Harry Blackmun
said: “[The] right of privacy, whether it be founded in the
Fourteenth Amendment’s concept of personal liberty and
restrictions upon state action, as we feel it is, or [another
clause]…is broad enough to encompass a woman’s
decision whether or not to terminate her pregnancy.”
The Court has reached similar conclusions in other areas of
privacy but has dropped using the controversial “right to
privacy” language in favor of the phrase “liberty interest”:
In Cruzan v. Dir. Missouri Dept. of Health (1990) the justices
held that “the principle that a competent person has a
constitutionally protected liberty interest in refusing
unwanted medical treatment may be inferred from our prior
decisions.”
In Lawrence v. Texas (2003) the Court concluded that laws
criminalizing consensual sodomy were barred by the
“liberty” provision of the 14th Amendment’s Due Process
Clause.
The Essential Fairness of the Judicial System
•
•
•
•
Beyond privacy, the Court has also used substantive due process for the issues of
excessive monetary damages awarded by juries and for problems associated with
judicial conflicts of interest.
Can jury awards for litigants who have been unlawfully harmed become so large
as to constitute an unreasonable denial of essential fairness and a deprivation of
property without due process of law?
In BMW v. Gore (1996) the purchaser of a new automobile found out that the car
he bought as new had been slightly damaged and repainted during transport to
the dealership. BMW policy allowed new cars with very minor damage to be fixed
and sold as new without disclosure to the dealer or purchaser. The purchaser
sued and was awarded $4,000 in compensatory damages and $4 million in
punitive damages. The state supreme court reduced it to $2 million and the U.S.
Supreme Court said 5-4 that even that was “grossly excessive.” The Court has
reduced jury awards in subsequent cases.
In Caperton v. A.T. Massey Coal Co. the justices considered whether judges who
are elected could be so beholden to the interests of campaign contributors that
they may not be able to fair to litigants when a conflict of interest may be present.
The Court ruled 5-4 that the Due Process clause of the 14th Amendment requires
a judge to recuse himself not only when actual bias has been demonstrated or
when the judge has an economic interest in the outcome of the case, but also
when "extreme facts" create a "probability of bias."
Conclusion
• The Court has on occasion relied on the due process
clause to protect rights not explicitly mentioned in the
Constitution—both rights favored by conservatives
(liberty of contract) and rights favored by liberals
(privacy, abortion).
• Critics suggest that substantive due process allows
judges to act as legislators – to decide on their own what
laws are so unreasonable as to violate due process.
• They suggest that the people should make those
decisions rather than unelected, unaccountable
Supreme Court justices.
• Are they right?