CONSTITUTIONAL LAW
CLASS 28
Economic Substantive Due
Process
March 17, 2008
The Slaughter-House Cases (1873)
[C p. 449, 523]
• Can the Privileges and
Immunities Clause be
interpreted as applying
the BOR to the States?
• Majority opinion by Miller,
joined by Clifford, Strong,
Hunt, Davis
• Dissent by Field, joined
by Chase, Swayne,
Bradley
• Separate dissents by
Bradley and Swayne
Moving toward Lochner
•
•
•
•
Munn v. Illinois (1876) [C p. 523]
Railroad Commission Cases (1886) [C p. 524]
Mugler v. Kansas (1887) [C p. 524]
ALL OF THESE CASES VIEWED THE DUE
PROCESS CLAUSE AS A LIMIT ON THE
GOVERNMENT’S REGULATORY POWER
• None struck down government regulations
Moving toward Lochner
• 1886: Court declares that corporations are
persons under Due Process and Equal
Protection Clauses of A XIV
Allgeyer v. Louisiana (1897) [C p.
524]
• Unanimous
• Opinion of the Court
by Peckham
Lochner v. New York (1905) [C p.
526]
• 5-4
• Majority opinion
written by Peckham,
joined by Fuller,
Brewer, Brown,
McKenna
• Dissent by Holmes
• Dissent by Harlan,
joined by White and
Day
Yellow Dog Contracts: Coppage
v. Kansas (1915)
• Majority by Pitney,
joined by McKenna,
McReynolds,
VanDevanter, Lamar
• Dissent by Holmes
• Dissent by Day;
Hughes concurs in
this dissent
The XIX Amendment
Amendment XIX (ratified 1920)
• The right of citizens of
the United States to
vote shall not be denied
or abridged by the
United States or by any
State on account of sex.
Congress shall have
power to enforce this
article by appropriate
legislation.
• First president elected
after women given right to
vote: Warren Hading
Muller v. Oregon (1908)
• Unanimous
• Opinion of the Court
by Justice Brewer
(Peckham, Harlan,
and Holmes all signed
on)
• See also Bunting v.
Oregon (1917) [C p.
535]
The “Brandeis Brief”
• Louis Brandeis, later
a Supreme Court
justice (1916-1939)
Adkins v. Children’s Hospital
• Majority by:
Sutherland
Joined by: McKenna,
Van Devanter,
McReynolds, Butler
Dissent by: Taft
Joined by: Sanford
Dissent by: Holmes
• Brandeis did not
participate
Weaver v. Palmer Bros. Co. (1926)
[C p. 527] One
• Majority opinion by
Butler
• (joined by the other 3
Horsemen:
Sutherland,
McReynolds, Van
Devanter as well as
Sanford)
• Dissent by Holmes,
joined by Brandeis
and Stone
Justices Born on St. Paddy’s
Day
• Roger Brooke Taney
• Pierce Butler
• Near misses: Ruth Bader Ginsburg (3/15),
Antonin Scalia (3/11), Earl Warren (3/19),
Sandra Day O’Connor (3/26)
Nebbia v. New York (1934) [C p.
539]
Majority by: Roberts
Joined by: Hughes,
Brandeis, Stone,
Cardozo
Dissent by:
McReynolds
Joined by: Van
Devanter, Sutherland,
Butler
(the 4 Horsemen)