Constitutional Law II- Professor Alexander Fall 2015
Substantive Protection of Economic Interests
Concerned with the CONSTITUTIONAL LIMITATIONS on government power, independent of limitations arising out of the distribution of powers within the federal system.
To what extent can the Due Process clause of the 5th and 14th amends be invoked to impose limits on the SUBSTANCE of governmental regulations and other activities, as well as to govern the PROCEDURES by which government affects “life, liberty and property?”
: No personal shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The due process concept under 5th amendment only assured fair legal procedure, and only to federal government.
The 14th amendment: no state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
Specifically prevents any state from depriving any person of life, liberty, or property without due process.
Enumerated rights: legal rights expressly written from constitution and bill of rights that are explicit writ of the law
Un-enumerated rights: legal rights inferred from other legal rights that are officiated in a retrievable form codified by law institution, but are NOT themselves expressly written in law. (Inferred)
Fundamental v. non-fundamental right: “Right to marry/right to abortion”à these are “un-enumerated” or not stated in constitution, BUT BECAME fundamental once the court recognize/accepts it from the holding.
Early Expressions of the Notion that Governmental Authority has Implied Limits
à Calder v. Bull
Court refused to set aside state legislative action that overrode a judicial probate proceeding.
: Case is known best for differing view of Justices Chase and Iredell on “nature & origin” of legislative power.
: legislative actionà limited by social compact that gave the legislature its power (courts can appeal to natural rights in making constitutional decision.
: Argued that constitutional limitation were the only restraint on legislative action. NO reason why the courts should define/apply natural law better than legislature
Justice Chase is the approach generally taken today, partly by applying “due process”
The judge made plain his willingness in an appropriate case to strike down legislation without regard to explicit constitutional limitations.
Vital principle of a Republican government that there are things the fed/state/Leg CANNOT do WITHOUT exceeding their authority.
Basically, the judiciary should/does have the power to STRIKE DOWN legislation that conflict with important but UNENUMERATED principles of American govt. (can appeal to natural right when making constitutional decision.
BEFORE adopting the 14th Amend in 1868, the fed constitution provided little basis for challenging state regulation of economic interests. (BASICALLY before this adoption, a state law could violate an individual vested right yet NOT violate the U.S. Constitution!)
“No person shall be deprived of life, liberty or property WITHOUT due process of law.”
The 14th Amendment
4 main principles:
State and federal CITIZENSHIP for all persons regardless of race (both for those born in the US or naturalized here)
No state would be allowed to abridge the “PRIVILEGES AND IMMUNITIES” of citizens
No person was allowed to be deprived of life, liberty or property without DUE PROCESS OF LAW
No person could be denied “EQUAL PROTECTION” of the laws.
Authorized Congress to enact legislation to “enforce this article” (therefore vested Congress w/ the power to enact legislation like Civil rights and Equal rights legislation, i.e. the 13th Amend)
Because each state had their own specific laws excluding African Americans in certain places, the FED GOVT HAD TO STEP IN AND ENACT PROTECTIONS.
THE FIRST SECTION of the 14th Amend opens with a definition of citizenship- not only citizenship of the U.S. but citizenship of the states. “All persons (this turns over Dred Scott) born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US and of the state wherein they reside.”
Distinction between citizenship of the US and citizenship of a State is clearly recognized and established. A man can be a citizen of the US w/o being a citizen of a state, BUT he must reside in a state to make him a citizen of that state…
Argument is how “privileges and immunities” in the Amend is applied- says to citizens of the US. What about citizens of each state, since those 2 things are NOT the same?? DECISION: The US Constitution only protects citizens of the US, was not meant to cover citizens of each state.
They wanted each state to grant/establish specific rights for citizens of that state. P&Is, however, were meant for citizens of the entire country. The Court did not WANT to censor legislation of the states/the civil rights of their own citizens.
àSlaughterhouse Case
Louisiana law allows monopoly to operate slaughterhouses
A group of excluded butchers claimed that this Louisiana law violated their right to exercise trade without joining the monopoly & pay fee. They Cite 13th amendment, 14th amendment (Civil War amendments) as protection.
§13th amendment challenge – involuntary servitude
§14th amendment challenge – abridges the privileges and immunities of citizens of the United States, and denying them of their property without due process of law
Held: Supreme Court said Louisiana law did not violate the 14th amendment.
The Privileges and Immunities clause only applied to rights guaranteed by the United States not the rights guaranteed by the states. Constitution does not control the power of the state Gov. over the rights of their own citizen except “equal protection” of citizens throughout US. Thus, no P & I that was infringed by the state law.
Key: cannot rely on P&I clause for economic right for states anymore. P & I ineffective in protecting individual rights against invasion by state Gov. Instead, Courts look to Due Process and Equal Protection
The Lochner Era
If a law supposedly enacted pursuant to the police powers of the state has no real or substantial relation to the state’s police powers, or is a clear invasion of rights secured by the fundamental law, it is the COURT’S DUTY to judge that!
During Lochner Era, Court apply the following concept
End or Purposes: The Court examined the purposes of the legislation, asking if the objective was legitimate, appropriate, and/or necessary. If the law promote in some way the health, safety, welfare/moral of people.
: If the means use to accomplish the legislation purpose were reasonable and appropriate. If there was a real and substantial relationship between the means used and the legitimate end
: effect of law on the liberty and property of the parties involved. If effect was too drasticà violate due process
à Lochner v. New York
Lochner convicted of permitting employee to work for him more than statutory maximum of 60 hours per week. Lochner appealedà claim the law violated his freedom to contract under 14th amendment (due process)
An NY statute was held to be in violation and invalid. — The statute forbade employment in a bakery for more than 60 hours a week or 10 hours a day. State may not prohibit private a
ited class labeled “business affected w/ a public interest.”)
The Abandonment/Decline of ‘Lochner’
DECLINE OF LOCHNERISM—“reasonableness”
àNebbia v. New York
NY passed a law establishing min/max retail prices for milk. To aid the dairy industry, since $ received by farmer for milk were below the cost of production. A retail grocer, Nebbia, sold milk below min $ à violating statute. She challenged on violating due process
: State may control retail $, even if the control inhibit use of private property/making contract. So long as rational basis exists and discrimination does not. à Sustained a NY regulatory scheme for fixing milk prices
The Court didn’t explicitly reject the Lochner philosophy. However, the majority noted that Due Process ONLY REQUIRED that “the law shall not be unreasonable or arbitrary, and the means selected shall have a real and substantial relation to the object sought to be attained.
A state was free “to adopt whatever economic policy may reasonably be deemed to promote the public welfare, and to enforce that policy by legislation adapted to its purpose.”
Nebbia’s requirement of a substantial means-end relationship was essentially the Lochner test. But the Nebbia court was clearly determined NOT to impose on legislatures its own views about correct economic policy, as the Lochner court did.
à West Coast Hotel v. Parrish
Court overruled several prior decisions and held that state could, consistent with due process, impose a minimum wage on employer/employee contracts
Overruled Adkins v. Children Hospital & other cases that talks about minimum wage
Overruled Adair v. US (regulation of wages)
à US v. Carolene Products Co.
SC upheld the constitutionality of the Filled Milk Act, which Congress passed to regulate certain dairy products. Here, the Court drew a distinction between legislation that regulates ordinary economic activities (like here) and legislation that curtails important personal liberties.
Courts must pay great deference to legislation that is principally aimed at economic affairs, the Court continued, and judges should refrain from questioning the wisdom or policy judgments underlying such legislation. Although some commercial laws may seem undesirable or unnecessary to a particular judge, the Court cautioned, the judicial branch may not overturn them unless they fail to serve a rational or legitimate purpose.
In footnote 4 the Supreme Court indicated that this presumption of constitutionality might not apply to certain categories of noneconomic legislation. Legislation that restricts political processes, discriminates against minorities, or contravenes a specifically enumerated constitutional liberty, the Court said, may be subject to “more searching judicial scrutiny.”
BASICALLY, the Court returned to the original constitutional proposition that courts do NOT substitute their social and economic beliefs for the judgment of legislative bodies, which are elected to pass laws.
