Constitutional Law II Outline

CONSTITUTIONAL LAW II SENG FALL 2017
 
SECTION 1. SUBSTANTIVE DUE PROCESS                                       
 
IN GENERAL
Two Different Types of Due Process:
Procedural
Government cannot take life, liberty or property without due process of law
Applies to both State and Federal governments
Government agents from the Executive, Legislative, and Judicial branches must follow proper procedures
Also applies to administrative agencies
Has always been part of our country, though the procedures due have changed throughout the times
Substantive
Uses the same words as procedural due process
But the Court has held that Due Process protects certain basic substantive liberties
Regardless of a fair trial
Regardless of proper notice
If the government interferes with certain liberties, it is said that the government violates basic liberties protected by Due Process, regardless of procedure
Origins of Substantive Due Process
Dred Scott
There, the constitutionality of the Missouri Compromise was questioned. Under the Missouri Compromise, if slave owners took their slaves to free states, the slaves were automatically freed. Justice Taney, writing for the Court, held that the    Compromise was unconstitutional because slaves were property, and the law deprived a slave owner of their property without Due Process under the 5th Amendment.
Post-Civil War
In the Slaughterhouse Cases, State Law prohibited slaughterhouses from operating while giving one owner a monopoly. Two arguments under the 14th Amendment were made:
One was based on the Privileges & Immunities Clause, but was shot down
The other was based on Due Process
Plaintiffs argued that the State was interfering with property owners’ rights to operate their businesses
But the Court rejected the argument because it didn’t recognize Due Process as providing any substantive rights
3.     1870s – early 1900s
Attempts to Extend Due Process to Economic Liberties
 
RULE: States may use their police power to regulate anything that touches the public good.
Munn v. Illinois (1877)
Facts: Illinois law regulated public warehouses, and the inspection and handling of grain, including the amount grain elevators could charge to store the grain. At that time, railroads had a monopoly and charged high fees. Thus, Illinois was engaging in price control. The railroads argued that the law infringed their 14th Amendment Due Process rights because it took their liberty and property.
Court: Held that States had police power to regulate private businesses without violating Due Process if those businesses served a public interest, such as a utility company.
Recognizing Substantive Limits of Due Process
RULE: The word “liberty” in the 14th Amendment grants a person the fundamental right to earn a living and to enter into contracts.
Allgeyer v. Louisiana (1897)
Louisiana passed a law that restricted persons or corporations from contracting with insurance companies that did not comply with the law. The plaintiffs argued that their 14th Amendment rights were being violated because liberty in the Due Process Clause entitled them to be free from arbitrary restrictions.
The Court held, for the first time ever, that the word liberty in the 14th Amendment means not only the right of the citizen to be free from the mere physical restraint of his person, such as 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.
 
ECONOMIC REGULATION
The Early Approach – The Lochner Precedent
RULE: States may not pass laws that are unreasonable, unnecessary, and arbitrarily interfere with the right of the individual to his personal liberty, such as one’s right to contract. Economic legislation will be presumed unconstitutional, and the burden is on the State to show why the law is fair, reasonable, and appropriate.
Lochner v. New York (1905)
Facts: A New York law made it illegal for a baker to work more than 10 hours per day or 60 hours per week. Lochner, a business owner, allowed his employees to work more than 60 hours, so he was indicted and fined.
 
Precedent: The Court had upheld a similar law in Holden v. Hardy (1898), where a Utah law that regulated the number of hours miners could work was found constitutional.
Court: Held the New York law infringed an employer’s right to contract employment terms with his workers. The Court found that the right to contract, or make personal arrangements, was a liberty protected by Due Process, and restrictions on the right to contract were constitutional violations. Also, the Court seemed to believe that New York was really interested in regulating labor, not the health of workers.
New Test: Since McCulloch v. Maryland, when the constitutionality of a law or regulation was challenged, the burden was always on the challenger to show it was unreasonable. But Lochner changed that by shifting the burden to the State.  Thus, the Court conceded that not every law that touches on the right to contract will be found unconstitutional. Rather, laws that are unreasonable, unnecessary, and arbitrarily interfere with one’s liberty are unconstitutional. The burden is on the state to show the law is fair, reasonable and necessary. This was a major shift.
Holmes’ Dissent: Argues there are already many restrictions on liberties, such as Sunday laws, Vaccination laws, and usury laws. Further, there is no particular economic theory in the Constitution. So here, the Court is acting as a super legislature.
Effects of Lochner
The right to contract is a liberty protected by Due Process
The State cannot pass laws that unreasonably, unnecessarily, and arbitrarily interfere with one’s right to contract.
The burden is on the State to show the law is a fair, reasonable, and necessary exercise of its police power
Holden was different from Lochner in that Holden involved coal miners, which is a much more dangerous job than being a baker, so the State could regulate that occupation
Lochner was the prevailing theory for thirty years, but there were very inconsistent holdings during that time.
Sometimes the Court found a law necessary and appropriate, other times it found a law meddlesome.
An Exception to Lochner
Muller v. Oregon (1908)
Justice Brandeis was still a practicing attorney at the time and filed what was known as a “Brandeis Brief,” which is one that does not cite law, but instead cites economic and social data. Brandeis was arguing that the number of hours women worked in factories should be limited, which was almost exactly the facts of Lochner. Yet, Brandeis persuasively showed that women were fragile and more delicate than men, so the Court held they could be regulated by the State, notwithstanding Lochner’s precedent.
 
The Modern Approach – Returning Deference to the Legislature
RULE: States may regulate a business in any of its aspects.  Due Process is satisfied where the laws passed have a reasonable relation to a proper legislative purpose and are neither arbitrary nor discriminatory.
Nebbia v. New York (1934)
Facts: The State of New York passed laws regulating the price of milk. This was during the Depression, and milk sellers were selling their milk at too low of a price. The price fixing was a way for New York to help the supply. Milk sellers argued that this infringed their right to contract and they should be allowed to sell milk at whatever price they want.
Court: Held that a State’s police power reaches anything for the public good and that State Legislatures are to judge what is reasonable, not the Court. This was the beginning of a trend in which the Court gave States great deference and backed away from being a super legislature. The Court was not to question the wisdom of the law, which was to be presumed constitutional. Economic legislation would be found unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the legislature’s policy.
RULE: Even without evidence supporting the reason for enacting economic legislation, legislative judgment is to be presumed and the law will not be unconstitutional unless it is shown not to rest on any rational basis.
United States v. Carol