Commerce Clause and Substantive Due Process

Commerce Clause and Substantive Due Process

1. Due Process versus Equal Protection

   1. 
      Due Process: 3 forms
      
      1. 
         Procedural: notice; opportunity to be heard
         
      2. 
         Substantive: not textually enumerated (e.g. freedom of contract)
         
      3. 
         Vehicle for incorporation: enumerated rights, but not against particular sovereign (e.g. 14^th Amdt. incorporates against states)
         
   2. 
      Equal Protection: arbitrary distincitons
      

2. Lochner Era: Ebbing of Congressional Power

   1. 
      Attacks on Congress from both sides:
      
      1. 
         Commerce Clause: cases are going both ways → sometimes SCOTUS lets Congress regulate, sometimes it doesn’t
         
         1. 
            States challenging federal power
            
      2. 
         Due Process: Lochner lets individual rights eat into both states and fed.
         
         1. 
            Individuals challenging state and federal power
            
   2. 
      Recurring doctrinal issues:
      
      1. 
         Subject-matter: is the particular subject of Congressional regulation “interstate” as opposed to local activity?
         
      2. 
         Purposes: is Congressional regulation within the purposes for which Congress was delegated interstate commerce power, or is it merely a pretext to do something else?
         
      3. 
         Reservation of powers: regardless of subject-matter and purposes, does a particular instance of Congressional regulation run afoul of 10^th Amdt. reservation of powers to states?
         

1. 
   Commerce Clause Cases
   
   1. 
      Champion [CB 437]: inherently harmful product (lottery tickets)
      
      1. 
         FACTS: Appellants indicted for conspiring to transport lottery tickets across state lines in violation of fed. statute → SCOTUS upholds statute under Commerce Clause
         
      2. 
         Appellants: lottery tickets are not “subjects of commerce” b/c they have no intrinsic value → [more important] even if they are subjects of commerce, Congress only has power to regulate, not to prohibit
         
      3. 
         Are lottery tickets subjects of commerce? → SCOTUS: of course: people buy them for chance to win $
         
         1. 
            Dissent: insurance contracts are like lottery tickets (both have contingent values), and those contracts are not treated as subjects of commerce → Distinction btw the two? Tickets are assignable; insurance policies are not
            
      4. 
         Does Congress have power to prohibit? → SCOTUS: yes: power to regulate includes power to prohibit (like McCulloch); Congressional power to regulate interstate commerce is plenary; if states have power to prohibit noxious lotteries, why can’t Congress keep interstate commerce free of such pollution (esp. when Congress is only body that can occupy the field of interstate commerce)
         
         1. 
            Dissent: 10^th Amdt. leaves police power to the states → here, Congress isn’t exercising its power to regulate commerce, but an alleged police power to suppress lotteries
            
   2. 
      Hammer [CB 441]: important for process/product distinciton
      
      1. 
         FACTS: Father of child millworkers challenges fed. statute imposing a 30-day stop on goods manufactured by minors before they can enter interstate commerce → SCOTUS strikes down law as in excess of Commerce Clause
         
      2. 
         Process v. Product Distinction
         
         1. 
            Hammer says the goods themselves are not harmful → what Congress didn’t like was the process by which goods were manufactured, and Congress doesn’t have power to regulate process
            
            1. 
               Congress is both doing something it was not delegated to do (to regulate process; deter unfair competition), and intruding on 10^th Amdt. reserved police powers
               
            2. 
               Not like in Champion, where the lottery tickets themselves were harmful
               
         2. 
            Hammer has been overruled w/ respect to process/product distinction → although it reemerges in int’l context
            
      3. 
         Prisoner’s dilemma: child labor laws may be optimal, but states have incentive to cheat → regardless, Congress doesn’t have the power to regulate against unfair competition
         
2. 
   Due Process Clause Cases
   
   1. 
      Lochner [CB 417]: important for substantive due process idea of freedom of contract
      
      1. 
         FACTS: Bakers challenge state maximum hours legislation → SCOTUS strikes down based on unenumerated right of “freedom of K”
         
      2. 
         Freedom of K: SCOTUS finds this as part of the liberty guaranteed in 14^th Amdt.
         
      3. 
         Scrutiny: health regulation not a reasonable interference w/ freedom of K
         
         1. 
            Baking isn’t an unsafe trade, and the hours a baker works doesn’t affect public health through quality of bread
            
            1. 
               Fairly stark categorization of which occupations are dangerous and which are not (unlike Harlan’s dissent)
               
         2. 
            Bakers as a class are not in need of state protection
            
         3. 
            Pretext: seems that the real purpose of statute was not to regulate public health, but to regulate relationship btw master and employees
            
      4. 
         Harlan’s dissent:
         
         1. 
            Disagrees that baking is certainly not a dangerous profession → makes an empirical argument that the evidence is at least unclear either way
            
            1. 
               Harlan focuses more on a continuum of dangerousness than majority
               
         2. 
            Limited judicial review: making these decisions is ordinarily in the province of the legislature, not the judiciary → it is enough to say that reasonable men could disagree about need to regulate work hours in this way
            
      5. 
         Holmes’ dissent:
         
         1. 
            Criticizes majority for expounding a certain social economic theory (Social Darwinism), which the 14^th Amdt. does not enact
            
         2. 
            Finding unenumerated rights: concerned w/ counter-majoritarian court striking down statute using an unenumerated right → BUT SCOTUS can find unenumerated rights when a reasonable person would say that the proposed right is deeply rooted in nation’s traditions and history (which is not the case re: freedom of K)
            
   2. 
      Coppage [CB 424]
      
      1. 
         FACTS: statute prohibited “yellow dog” contracts (contracts forbidding employees to join labor unions) → SCOTUS ruled statute unconst. violated freedom to contract
         
      2. 
         Freedom to K: based on liberty and right of private property
         
      3. 
         State interest in regulating freedom of contract: unequal bargaining power is inherent in freedom to contract → not a legitimate state interest to try to remove those inequalities (e.g. by forbidding anti-union contracts)
         
   3. 
      Muller [CB 426]: SCOTUS upheld statute limiting women’s workday → paternalism (women are weak and need to be protected by men), romantic paternalism (women are important for raising children)
      
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