Select Page

Constitutional Law II
University of Iowa School of Law
Bonfield, Arthur E.

·         8/25 Substantive due process: Reg of economy
o       The height of the concept of economic substantive due process
§         At the height of the doctrine, the court was willing to strike down state legislation that impeded on liberty to contract absent compelling state interest. Lochner v. New York (1905) (Court struck down maximum hour law for bakers, finding that the rationale for viewing the regulation as a legitimate use of the police power was weak, but that individuals had the liberty to contract as they so desired; a compelling state interest was needed to limit a fundamental right. Holmes dissent argued that Spenser’s economic theory should not be the basis for judicial decisions. Harlan dissent argues that the means for legislation must be reasonable, and the end legitimate – this legislation was such)
o       Decline of concept of economic substantive due process – the modern view
§         The court now uses rational basis review for economic regulation, and no longer views liberty of contract as a fundamental right. Nebbia v. New York (1934) [503] (Court upholds regulation of milk prices, finding that it is a matter of public interest, and that states are free to adopt economic policy. The court finds that due process in this realm requires only a rational basis in order to stand.); West Coast Hotel Co. v. Parrish (1937) (Reversed Adkins v. Children’s Hospital and upheld a minimum wage for women, finding that due process analysis could not invalidate such regulations, and that there was no fundamental liberty of contract.); United States v. Carolene Products Co. (1938) (Upheld a federal ban on filled milk products against a due process challenge, finding that only a rational basis was required for economic regulation. Footnote four hinted though that discrete and insular minorities could be protected when largely disenfranchised and unable to access the political system {Ely}); Williamson v. Lee Optical Co. (1955)(In a very deferential opinion, the court upheld a state law requiring consultation with eye doctor and bar on advertising visual aids. Found the legislature may have had a rational basis); Ferguson v. Skrupa (1963) (sustain Kansas law barring non-lawyers from being in business of debt adjustment. Legislature must weigh wisdom of such legislation.)
§         TEST: Rational basis for Socio Eco regulations
·         Just need some means and end rational relationship, does not need to be directly related
·         Can deal with small evils as well
·         BoP on one challenging the law
§         So a Sub DP Issue if Leg end. How do we know If a law is legitimate?
o       On its face
o       In the legislative history
o       Attornry’s arguments
o       Court can Hypothesize
·         8/26 Substantive due process: FR-Privacy
·         Substantive Due Process and Non-economic Liberties
o       Rise of Substantive Due Process for non-economic liberties
§         Started with a broad reading of liberty. Meyer v. Nebraska (1923) (McReynolds for the court struck down a ban on teaching foreign languages to children, finding that it violated substantive due process, and was contrary to principles of liberty); Pierce v. Society of Sisters (1925) (Struck down a requirement to attend public schools, finding it interfered with the liberty of parents and guardians, and that there were no sufficient state justifications); Skinner v. Oklahoma (1942) (struck down state compulsory sterilization law for repeat felons committing crimes of moral turpitude – found right to procreate to be fundamental).
o       Substantive Due Process was extended to find a right of privacy
§         Privacy protects the right to access contraception.
o        SOURCES to identify rights: some rights being more imp than the courts simply expressing its own value judgment: ( Lochnerising)—
§         TEXT of the constitution
§         Tradition and history- appeal to well established law and custom–
§         general societal consensus
§          Griswold v. Connecticut (1965) HEIGHTENED SCRUITY from Rb to SS(Invalidated state ban on contraception in the marital context, finding that there was a constitutionally derivative right of privacy that was fundamentally protected. Harlan concurrence argued for finding the right in ordered concepts of liberty that the Constitution inherently protects); Eisenstadt v. Baird (1972) (overturned a ban on distributing contraceptives); Carey v. Population Services International (1977) (strikes down state ban on selling contraceptives to minors under 16)
·         8/31 Substantive due process: Abortion 1
§         Privacy protects the right to obtain abortions. Roe v. Wade (1973)(Court found that the right to privacy protected the ability to make medical decisions, but that it must be balanced with state interests, which in this case, are also compelling. A complete ban except for the life of the mother violates substantive due process. Opinion created trimester framework to guide states in regulating access to abortions. Dissents argued that there was no fundamental right to abortion, and that the matter was a political question.); Doe v. Bolton (1973) (Struck down extra procedural requirements for abortions, finding that physician’s best clinical judgment should suffice)
§         Govt barring funding of abortions does not implicate a FR: Maher v. Roe (1977) [569] (Denied application of strict scrutiny, and upheld exclusion of abortion from state medicaid system finding that funding was not required for the fundamental right); Harris v. McRae (1980) (Found that substantive due process did not require the federal government to fund even medically necessary abortions); Rust v. Sullivan (1991) (Court upheld federal funding restrictions on organizations that promoted, encouraged, or advocated for abortion in providing medical treatment.)
§         so we have a trichotomy.
·         Where a FR is regulated/prohibited-SS
·         Where the govt penalizes a FR[Griswold/roe]-SS
·         Where government just withdraws funding FR: RB applies- abortion cases
·         9/01 Substantive due process: Abortion 2
o       Spousal Consent is not permitted, but some parental notification and consent requirements are: Casey (spousal notification unduly burdensome, plurality says parental consent with bypass is acceptable)
o       Burdensome regulations of medical practices have been struck down: Akron v. Akron Center for Reproductive Health (Akron I) (1983) (invalidated requirement that post first trimester abortions had to happen in hospital, and requirement of biased information to be presented); Thorn

e signals a willingness to be quite deferential on regulations that are solely economic); Massachusetts Bd. of Retirement v. Murgia (1976) [653] (Upheld a mandatory retirement law for state police – though the justice concerns may be grave, when there is no suspect class or fundamental right, there is no constitutional remedy); Vance v. Bradley (1979) (upheld federal law requiring foreign service people to retire at 60); U.S. Railroad Retirement Bd. v. Fritz (1980) (Benefits reclassification for railroad workers was upheld under rational basis inquiry. The court found that there was a rational relation in the recency of the ties to the railroad industry. The dissent argues that the court has abstained from its duties, and has failed to require even a rational basis. The case represents the largely deferential approach on economic matters); Allegheny Pittsburgh Coal v. Webster County (1989) (strikes down a property tax system that bases its assessment on purchase price, thus disadvantaging recent purchasers); Nordlinger v. Hahn (1992) (distinguished Allegheny and upheld an acquisition value based property tax system when the particular goal was the advantages of such a system);
The court became less deferential with non-economic regulations. New York City Transit Auth. V. Beazer (1979) (Though upholding a ban on meth users in transit employment, justices indicated a less than deferential approach in the rational basis inquiry);
But, the Court occasionally found legislation with no rational basis, generally where some sort of animus is at work. U.S. Dept. of Agriculture v. Moreno (1973) (striking down a restriction on food stamp eligibility for households with unrelated individuals living therein – requirement was clearly irrational, and little inquiry was made after finding the restriction was motivated by animus to hippies);
·         Sep 14-EP RACE:
o       Strict Scrutiny
§         Race based distinctions merit strict scrutiny. This means that racial classifications are ordinarily suspect, and require a compelling justification from the state.
·         Justifications for viewing race as a suspect classification
o       It is an immutable characteristic
o       Salience – it is an obvious physical characteristic that makes the discrimination all the more odious.
o       Irrational prejudice based on background
§         Total abridgement of basic rights – i.e. conscious, free speech, intimate life, right to work
§         Dehumanizing
o       Irrelevant to any state purpose
o       Powerless
§         Previously not permitted to vote
§         Even when they get the vote, they are a small minority