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| In general, substantive due process prohibits the government from infringing on fundamental constitutional liberties |
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| By contrast, procedural due process refers to the procedural limitations placed on the manner in which a law is administered, applied, or enforced. Thus, procedural due process prohibits the government from arbitrarily depriving individuals of legally protected interests without first giving them notice and the opportunity to be heard. |
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| a. MUNN v. ILLINOIS (1877) [p. 378 |
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Definition
SCOTUS refused to scrutinize the reasonableness of the rates because, under the police power, the state could regulate industrial use of property for the public good.
i. Facts: IL law regulated the maximum charges which may be imposed for the storage of grain in certain cities within the state
ii. Holding (Waite): Upheld.
1) The police power includes the regulation of individual use of property that had a public interest. The regulation of grain storage fits into this category because storage monopolies, like utilities, could exact monopoly prices. However, the reasonableness of private contracts must be determined judicially. |
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| c. SANTA CLARA COUNTY v. SOUTHERN PACIFIC R.R. (1886) [p. 378] |
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| i. Holding: Corporations are “persons” within the meaning of the 14th Amendment. |
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| a. MUGLER v. KANSAS (1887) [p. 378 |
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SCOTUS announced that it would examine the substantive reasonableness of state legislation.
i. Facts: KS law prohibited alcohol.
ii. Holding (Harlan): Upheld, but SCOTUS announced that it would examine the substantive reasonableness of state legislation.
1) Not “every statute enacted for the promotion” of “the public morals, the public health, or the public safety” would be accepted “as a legitimate exertion of the power powers of the State.” The courts would not be “misled by mere pretenses” as they were obligated “to look at the substance of things.” If a purported exercise of the police power “has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge.”
iii. Notes: SCOTUS hinted that it was more willing to interfere with legislation. |
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| b. ALLGEYER v. LOUISIANA (1897) [p. 378 |
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first time SCOTUS invalidated a state law on substantive due process grounds. Expanded concept of “liberty” from mere physical restraint to enjoyment of property.
i. Facts: LA law prohibited the insuring of LA property by any marine company not in compliance with LA law. Allgeyer insured his property with a NY insurer and was convicted for mailing a letter advising a NY insurance company, not licensed to do business in LA, of the shipment of goods.
ii. Holding (Peckham)(unanimous): Invalid. Violated 14th Amendment by depriving Allgeyer of his liberty (to contract) without due process of law. |
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| 1. LOCHNER v. NEW YORK (1905) [p. 379]: |
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a law that infringes on freedom in the marketplace and freedom of contract is unconstitutional if it doesn’t bear a reasonable relation to a legitimate governmental purpose.
a. Facts: NY labor law prohibited the employment of bakery employees for more than 10 hours a day or 60 hours a week. Lochner was convicted and fined for permitting an employee to work in his bakery in excess of the allowed hours.
b. Issue: Is this a fair, reasonable and appropriate exercise of the police power, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to enter into those contracts as protected by the 14th Amendment?
c. Holding (Peckham)(5-4): Invalid. This is not a health law; rather, it is a law that interferes with the right of contract between employer and employees.
i. The general right to contract in business is part of the individual liberty protected by the 14th Amendment.
ii. Earlier laws restricting the work hours in certain dangerous occupations have been upheld. However, the law here has no bearing on the health, safety, morals, or welfare of the public – and the trade of a baker is not inherently an unhealthy one which would authorize interference with the right to contract.
iii. The state claims an interest in the individual worker’s health, but this goes too far. The individual’s liberty must impose some restraint on the police power. |
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d. Dissent (Harlan): The liberty of contract is subject to reasonable police regulations. “The labor of the bakers is among the hardest and most laborious imaginable,” and such conditions provide a reasonable justification for the NY law. Notably, Congress and nearly all the states had enacted laws concerning the number of hours in a workday.
e. Dissent (Holmes): Many comparably restrictive uses of the police power – e.g., Sunday laws, usury laws, prohibition of lotteries, school laws, etc. – have been upheld by SCOTUS. This case has been decided upon an economy theory and “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Rather, a constitution “is made for people of fundamentally differing views.” |
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| i. ADAIR v. US (1908) [p. 386]: federal law prohibiting “yellow dog” contracts violates due process because it interferes with the right to make contracts. |
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1) Facts: Federal law prohibited interstate railroad employers from requiring that employees agree as a condition of employment not to join, or remain a member of, a labor union (nicknamed “yellow dog” contracts).
2) Holding (Harlan): Invalid. Violates 5th Amendment Due Process Clause.
1. “The right of a person to sell his labor upon such terms as he deems proper [is] the same as the right of the purchaser of labor to prescribe the conditions. [The] employer and the employé have equality of right, and any legislation that disturbs that equality is an arbitrary interference.”
3) Dissent (Holmes): There is nothing in the Constitution prohibiting this law.
4) Note: Justice Harlan was a dissenter in LOCHNER. |
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| ii. COPPAGE v. KANSAS (1915) [p. 386]: state law prohibiting “yellow dog” contracts violates due process because it interferes with the right to make contracts |
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1) Facts: KS prohibited “yellow dog” contracts under a law similar to that in ADAIR.
2) Holding (Pitney): Invalid. Violates 5th Amendment Due Process Clause. There always are inequalities in the bargaining process.
3) Dissent (Holmes): There is nothing in the Constitution to prevent a reasonable man from joining a union so he can secure a fair contract. |
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| i. MULLER v. OREGON (1908) [p. 387]: state interest in healthy women in reasonable enough for a law limiting the number of hours in a workday for women |
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1) Facts: OR law provided that no female shall be employed in any factory or laundry for more than 10 hours per day.
2) Holding (Brewer): Upheld.
1. Women are physically fragile and healthy mothers are “essential” for “vigorous offspring.” Thus, there is a public interest in maintaining healthy women. |
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ii. BUNTING v. OREGON (1917) [p. 387]: extends MULLER and scales back LOCHNER
1) Facts: OR law established a maximum 10-hour work day for factory workers (male and female)
2) Holding: Upheld. |
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| i. ADKINS v. CHILDREN’S HOSP. (1923) [p. 387]: overruled by WEST COAST HOTEL. |
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i. ADKINS v. CHILDREN’S HOSP. (1923) [p. 387]: overruled by WEST COAST HOTEL.
1) Facts: DC law prescribed minimum wages for women.
2) Holding (Southerland): Invalid. Violates due process.
1. The 19th Amendment gave women the right to vote. The civil inferiority of women was almost gone.
3) Dissent (Holmes): How can SCOTUS uphold the power to fix a maximum number of hours of work for women, but not uphold the power to fix a minimum for the wages of women. The bargaining process is equally affected no matter which aspect is regulated. “[It] will need more than the 19th Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account.”
3. The modern era – decline of judicial intervention in economic regulations: by the New Deal, SCOTUS backed away from LOCHNER and ultimately overruled ADKINS. |
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| a. NEBBIA v. NEW YORK (1934) [p. 388]: |
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price controls that are nondiscriminatory and bear a reasonable relation to a proper legislative purpose are constitutional.
i. Facts: NY law established min and max milk retail prices to aid the diary industry (because the prices farmers received for milk were below production costs). Nebbia, a retail grocer, was convicted for selling milk below the min price.
ii. Issue: May a state control the selling price of milk, even if such control inhibits the use of private property and the making of contracts?
iii. Holding (Roberts) (5-4): Valid. If a law has a reasonable relation to a proper legislative purpose, and are nondiscriminatory and are not arbitrary, then the requirements of due process are met.
1) Noted that property rights and contract rights are not absolute; otherwise, a citizen could use his property to the detriment of his fellows or exercise his freedom of contract to cause them harm. Thus, “equally fundamental” with the private right is the public right to regulate it for the common interest.
iv. Dissent (McReynolds): The law interferes with the rights of the small business owner (“little grocer”) to conduct his business according to established standards and deprives consumers of their liberty to buy “a necessity of life in an [open market].” |
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| d. US v. CAROLENE PRODS. CO. (1938) [p. 391]: introduced the minimum “rational basis” standard that continues to the present to govern due process review of economic legislation – courts defer to legislation even if there is no clear indication of what justified this legislation. |
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i. Holding (Stone): Rejected a due process challenge to a federal ban on the interstate shipment of adulterated “filled milk.” Challenging the “rational basis” underlying economic legislation would be difficult. The statute was clearly within the commerce power and was reasonable and not reviewable.
ii. Justice Stone’s Famous Footnote 4: distinguished cases warranting deference from those requiring heightened judicial scrutiny.
4. Minimum rationality review of economic legislation: CAROLENE PRODUCTS helped to introduce the minimum “rational basis” standard that governs due process review of economic regulation. |
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| a. WILLIAMSON v. LEE OPTICAL CO. (1955) [p. 392]: “rational basis” standard – as long as there is some possibility of a legitimate standard, the law will be upheld. States are free to regulate business conditions unless there is no conceivable justification for the legislation. |
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i. Facts: OK law prohibited persons who were not licensed optometrists or licensed ophthalmologists from (1) fitting lenses to a face or duplicating/replacing lenses or other optical appliances without a written prescription from a licensed optometrist or ophthalmologist and (2) advertising the sale of eyeglass frames.
ii. Issues: Does the 14th Amendment prohibit state economic regulation that is not essential and directly related to the harm it intends to cure?
iii. Holding: No. The Court will not strike down state laws regulating business and industrial conditions, merely because they “may be unwise, improvident, or out of harmony with a particular school of [thought].”
iv. Notes: exemplifies an extremely deferential judicial stance both to the legislature’s selection of ends and its choice of means to those ends. |
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| b. FERGUSON v. SKRUPA (1963) [p. 394] |
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i. Facts: KS law prohibited anyone from engaging “in the business of debt adjusting” except as an incident to “the lawful practice of law.”
ii. Holding (Black): Upheld. KS is free to determine appropriate legislation for the business of debt adjusting. The Court “refuse[s] to sit as a ‘super legislature to weigh the wisdom of legislation.’”
iii. Concurrence (Harlan): KS law bears a rational relation to a constitutionally-permissible objective re: LEE OPTICAL. |
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| a. BMW OF NORTH AM., INC. v. GORE (1996) [p. 394] |
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i. Facts: $2 million punitive damages award for the concealed paint touch-up of a new car, compensatory damages for which were assessed at only $4,000.
ii. Holding (Stevens): Found the award “grossly excessive” partly on notions of procedural due process – i.e., the requirement of fair notice to the defendant of potential legal liability.
iii. Concurrence (Breyer, O’Connor & Souter): notions of procedural due process – assures uniform general treatment of similarly situated persons.
iv. Dissent (Scalia & Thomas): The 14th Amendment’s Due Process Clause does not guard against “unfairness” of an excessive civil compensatory award nor the “unfairness” of an “unreasonable” punitive award.
v. Dissent (Ginsburg & Rehnquist) |
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Roe argued the broadest basis possible, using Griswold as precedent to argue that the right of privacy can be found in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
The State of Texas argued that there was no constitutional text that guaranteed the right of privacy.
Writing for the Court, Justice Blackmun stated that the right of privacy is grounded in the liberty clause of the due process clause of the Fourteenth Amendment.
The Fourteenth Amendment's concept of "personhood" is not sufficiently concrete. Justice Goldberg, concurring in Griswold, argued for the relevance of the Ninth Amendment as a source for personal privacy. |
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The State, defending the statute, would argue that the lowest tier, rational basis should apply.
Roe, challenging the statute, would argue that the highest tier, strict scrutiny, should apply.
While the Court agreed with Roe regarding the standard, the Court found that the analysis under the standard changed as the pregnancy progressed.
Recall that intermediate scrutiny is not a standard in due process doctrine. |
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Roe argued that because there was no agreement, the woman's constitutional privacy interests should prevail.
The State argued that "life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception." Roe, 410 U.S. at 159.
The Court stated that the "compelling point" of the State's interest is at viability because "the fetus then presumably has the capability of meaningful life outside the mother's womb." Id. at 163. While the Court agreed that there was a "wide divergence of thinking on the issue of when life begins," it did not hold that common law should be determinative. |
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Second, the dissent by Justice Rehnquist expresses some of the continuing critiques of Roe v. Wade.
Rehnquist highlights the issue of the correct standard to be applied, noting that "the restrictions on abortions for at least a century is a strong indication," that the "asserted right to an abortion is not 'so rooted in the traditions and conscience of our people as to be ranked fundamental.'" Id. at 174 (Rehnquist, J., dissenting). Instead, he argues, the correct standard for "social and economic legislation" is "whether or not a law such as that challenged has a rational relationship to a valid state objective." Id. at 173. Rehnquist notes that if the statute "were to prohibit an abortion even where the mother's life is in jeopardy," id., it would fail the rational basis test. But otherwise, the state legislation should be held constitutional.
Rehnquist also makes the following points:
abortion does not implicate privacy at all, but is a "transaction resulting in an operation," id. at 174;
the Court is replicating the mistake of Lochner v. New York;
the drafters of the Fourteenth Amendment did not intend to prohibit abortion;
the Court's holding resembles judicial legislation. |
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Third, and related to Justice Rehnquist's last criticism, the holding of Roe v. Wade is very specific.
The Court states:
To summarize and to repeat:
(1) A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
(2) The State may define the term 'physician,' as it has been employed in . . . this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.
Roe, 410 U.S. at 164-165. |
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