Fundamental rights Rise and demise of Lochner

Fundamental rights

Rise and demise of Lochner

1. 
   History of court’s doctrine in fundamental rights jurisprudence
   
   1. 
      Important: philosophical distinction between liberty and equality rights
      
   2. 
      First, used due process to create economic liberty rights
      
      1. 
         No longer exists (repudiated in the 1930s)
         
   3. 
      Newer category of rights: privacy rights
      
      1. 
         Sex, marriage, death--domestic, not market sphere rights
         
   4. 
      Express/enumerated rights v. implied, unwritten constitutional rights
      
   5. 
      Should court be free to make up rights beyond those expressly stated in the constitution, like right to choice to get an abortion?
      
      1. 
         In contrast to freedom of speech, in text of constitution
         
      2. 
         Interpreting abstract clauses like free speech requires just as much additional content as finding constitutional right to privacy or abortion
         
2. 
   Calder v. Bull
   
   1. 
      A probate court decreed a will invalid in favor of plaintiffs in error, who stood to obtain property through inheritance. However, the state legislature passed a law enabling defendants in error to obtain a new hearing on the probate court's decree, which resulted in the will being validated in favor of defendants in error, who stood to take under the will. The Court rejected the contention made by plaintiffs in error that the law authorizing the rehearing was an unconstitutional ex post facto law because there was previously no right to a rehearing. The Court defined the ex post facto laws prohibited by the U.S. Constitution to include only those related to crimes, which (1) made an innocent action done before the passing of the law, criminal; (2) aggravated a crime or made it greater than it was when committed; (3) inflicted a greater punishment than the law annexed to the crime when committed; (4) altered the legal rules of evidence, and received less, or different, testimony than the law required at the time of the commission of the offence to convict the offender. Thus, the Court held that the state law at issue did not fall within the constitutional prohibition.
      
   2. 
      Issue: Should courts be able to strike down statutes based on natural law?
      
   3. 
      Justice Chase: Cannot uphold laws that take from A to give to B
      
      1. 
         Unwritten Constitution just as enforceable against the states as anything found in the written constitution
         
      2. 
         Wealth distribution on par with punishing innocent
         
   4. 
      Justice Iredell: Because there is a written constitution, that is it, and that means courts can't call upon principles of natural justice
      
      1. 
         Ideas of natural justice regulated by no fixed standard
         
      2. 
         Legislature possessed of equal right inconsistent with abstract principles of justice
         
3. 
   Munn v. Illinois
   
   1. 
      Holding: Illinois statute fixing max charges for grain storage did not violate due process
      
   2. 
      Test: is the private property affected with a public interest?
      
4. 
   Slaughterhouse Cases
   
   1. 
      Who knows what the privileges and immunities of natural citizenship might be?
      
   2. 
      Free pursuit of livelihood as butcher, not spelled out in constitution, but government interfering with it
      
   3. 
      Privileges and immunities clause open-ended interpretation to enforce rights that belong to citizens of all free governments
      
   4. 
      But every law inhibits people's freedom to pursue happiness
      
5. 
   Railroad Commission Cases: court sustained state regulation of railroad rates, emphasizing limit of judicial deference
   
6. 
   Santa Clara County: corporations = person within 14th amendment due process
   
7. 
   Minnesota rate case: invalidated statute setting unreviewable railroad rates
   
8. 
   Allegeyer v. Louisiana: invalidated statute that prohibited any person from issuing insurance on property in the state with companies that had not been admitted for do business in the state
   
9. 
   Lochner v. New York
   
   1. 
      Facts: statute made it illegal for a baker to work more than 60 hours a week
      
   2. 
      Holding: the due process clauses of the fifth and fourteenth amendments protect liberty of contract and private property against unwarranted government interference
      
   3. 
      Rationale: statute interferes with the right of contract between the employer and employees
      
      1. 
         General right to make a contract in business protected by 14th amendment
         
      2. 
         Police powers that relate to the safety, health, morals, and general welfare of the public are those which may impose on property and liberty of citizens
         
      3. 
         Question to ask: is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?
         
      4. 
         In this case, the law has nothing to do with public welfare/safety
         
      5. 
         Not all economic regulation is unconstitutional: regulations that have a direct relation to general welfare of public, exercise of police powers, safety are permissible.
         
   4. 
      Holmes's dissent:
      
      1. 
         Majority has the right to embody their opinions in law without interference from the court
         
      2. 
         Court's shouldn't be imposing their own views
         
      3. 
         Laissez-faire should be applied by court to the legislative process
         
      4. 
         Liberty of politics takes priority over liberty of economics
         
      5. 
         View that ultimately prevails in rationality review--successful groups entitled to keep fruits of political victories
         
   5. 
      Legacy
      
      1. 
         If court thought a statute simply there to readjust the market in favor of one party, more likely to hold regulation invalid
         
   6. 
      Contrast:
      
      1. 
         Holder v. Hardy, where the court upholds a maximum hours law for miners: designed to protect workers in a very dangerous setting from getting hurt.
         
      2. 
         Muller v. Oregon: court upholds max hour law for women working in industrial labor
         
10. 
    Court later renounces the Lochner view
    
    1. 
       After the New Deal, the court gives into the change in law: not just to unlimited federal power under commerce clause, but to virtually unlimited power of government in general, including state and local governments to regulate the economy with respect to economic liberty rights
       
    2. 
       What caused the New Deal change?
       
       1. 
          Economic, political, social factors outside of court
          
          1. 
             Roosevelt's popular mandate
             
          2. 
             Threats to pack court
             
          3. 
             Great depression undermined faith in free market economy
             
          4. 
             Need for gov't intervention in econ; when need became great, court couldn't stand in way
             
       2. 
          Internal reasons distinctive to Lochner
          
          1. 
             Idea that there is such a thing as a free market is a crazy idea
             
          2. 
             The law is the thing that allows you to have property
             
          3. 
             Gov't always involved in markets
             
       3. 
          Pre-New Deal, gov't took a laissez-faire view towards economy
          
          1. 
             All of a sudden, FDR, massive attempt at regulation, changing distribution of entitlements, market power, wealth
             
          2. 
             Before gov't pervasively involved in the economy, in New Deal, some measure of common law regulation replaced by statutes and admin regulation, but not more gov't, just changed form of gov't
             
       4. 
          Realist view challenges the idea of Lochner court that there is something suspicious about taking from A and giving to B
          
          1. 
             Once you get the idea that gov't played an important role in giving thing to A in first place, fact that giving to be no less problematic than gov't letting A have it
             
    3. 
       Court has not struck down a law under economic liberty since the New Deal
       
    4. 
       Nebbia v. New York
       
       1. 
          Court sustains price controls for milk prices
          
       2. 
          Private rights must yield to public need sometimes
          
       3. 
          So far as due process is concerned, can adopt anything to promote public welfare
          
    5. 
       West Coast Hotel v. Parrish
       
       1. 
          Upholds law
          
    6. 
       Link to Carolene Products:
       
       1. 
          Substantive due process
          
          1. 
             Rationality review for most types of economic and social legislation
             
          2. 
             Heightened scrutiny for statues that infringe on a limited, fundamental set of rights
             
       2. 
          Low-level rationality form of due process scrutiny
          
          1. 
             Same test as in equal protection
             
          2. 
             Challenged laws, so long as no fundamental right involved, must only be rationally related to a legitimate state interest, court happy to make up public-regarding purpose, or conceivable set of facts to fit classification or the law
             
    7. 
       What was so wrong with it?
       
       1. 
          Courts making up value judgments and using them to second guess what legislatures were deciding
          
       2. 
          In the wake of Lochner, the court really should bring back some component of what it was doing there, naked preferences for some interest groups, without any public-regarding justification or public interested reason behind him
          
       3. 
          Lesson that the court took form Lochner= Holmes lesson; courts' value judgments ungrounded in the constitution should be trumped by democratic value judgments
          
       4. 
          Used to think majorities would extract wealth from the wealthy, but that hasn't happened
          
       5. 
          We live in majoritarian system, would think the minority with disproportionate wealth would be who went wrong, but why don't majorities redistribute?
          
       6. 
          But courts don't order the redistribution of wealth: no constitutionally grounded power to do that