CONSTITUTIONAL LAW SPRING 2008 – PROF. FISCHER
Outline for Class 28: Substantive Due Process
I.
Central Theme: substantive limits on government provided by
the Due Process Clause in V and XIV Amendments with
respect to economic rights
II.
Substantive Due Process
a. Text: V and XIV Amendments provide that neither the
United States nor state governments shall deprive any
person of “life, liberty or property without due process of
law.”
b. This clause has been interpreted to impose two different
types of limits on governmental power: PROCEDURAL
DUE PROCESS and SUBSTANTIVE DUE PROCESS
c. PROCEDURAL DUE PROCESS requires the government
to follow certain procedures, such as providing notice and a
hearing, before depriving a person of life, liberty, or
property.
d. SUBSTANTIVE DUE PROCESS requires the government
to have a sufficient reason for depriving a person of life,
liberty or property.
 There are two basic standards Court usually uses to
decide whether a law violates substantive due process:
strict scrutiny (law struck down unless it is shown to be
the least burdensome means of achieving a compelling
governmental interest) or rational basis (law will be
upheld if there is any legitimate goal that a rational
legislature might have thought the measure would
further) Note – in some cases, such as abortion, Court
may employ a variation of the strict scrutiny test.
 Substantive due process is a more controversial doctrine
than procedural due process. One reason it is
controversial is that the Court has used it to protect
rights that are not expressly stated in the Constitution
(e.g. freedom of contract, abortion)
III. Economic substantive due process and the applicable standard of
review: focus on issue of when the government is justified in taking
away a person’s economic rights
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A. Note shifts in Court’s approach to the use of the Due Process
Clause to protect economic rights from government interference.
B. Pre-Lochner era:
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C.
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In Slaughter-House Cases [C p. 522] (narrow reading of
privileges and immunities clause; LA law did not violate
substantive due process)
 Significance of natural law philosophy viewing property
ownership as a natural right
 Influence of philosophy of Social Darwinism
 Cases moving toward Lochner in articulating a philosophy
of economic substantive due process, e.g. Munn v. Illinois
(1876)[C p. 523], Railroad Commission Cases (1886) [C p.
524, Mugler v. Kansas (1887) [C p. 524],
Lochner era – end of 19th c. to 1937
Allgeyer v. Louisiana (1897) [C p. 524] (be careful not to
confuse liberty of contract with the Contracts Clause in Art. I §
10): Court strikes down a state law as interfering with liberty
to contract
Lochner v. New York (1905) [C p. 526]:
i. protection of freedom of contract as a basic
liberty/property right under the Due Process Clause
ii. limits on state police powers
iii. judicial role
During Lochner era hundreds of regulations struck down, such
as:
i. minimum wage regulations in Adkins v. Childrens
Hospital (1923) [C p. 526]; Morehead v. New York (1936) [C p.
537]
ii. laws protecting unionizing in Adair v. United States
(1908) and Coppage v. Kansas (1915) [C p. 531]
iii. consumer protection legislationin Weaver v. Palmer
Bros. (1926) [C p. 537]
During Lochner era many other governmental regulations
sustained, such as maximum hours regulations in Muller v.
Oregon (1908) [C p. 524] (effect of Brandeis brief?), Bunting v.
Oregon (1917) [C p. 535]
 The Beginning of the End of the Lochner era: Nebbia v. New
York (1934) [C p. 535]
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i. upheld a NY law that set prices for milk
ii. Justice Owen Roberts stated: But neither property
rights nor contract rights are absolute; for government cannot
exist if the citizen may at will use his property to the detriment
of his fellows, or exercise his freedom of contract to work them
harm. . .
iii. emphasized need for judicial deference to legislature
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