Due Process, Substantive

Due Process, Substantive The constitutional doctrine of substantive due process can be traced back to the English idea of a fundamental but unwritten constitution and flows forward to modern constitutional guarantees of privacy. Though its antecedents include basic notions of republican government and individual civil rights, our modern notions of substantive due process are founded upon Justice Stephen J. Field's dissent in the Slaughterhouse Cases (1873). Behind the spare language of the Due Process Clause of the Fourteenth Amendment that barred Louisiana's statutory conferring of a monopoly upon a single slaughterhouse, Field discerned inalienable individual liberties:

Clearly among these must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons. … The equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life, throughout the whole country, is the distinguishing privilege of citizens of the United States. (pp. 97, 109–110)

Free‐Labor Ideology

Field brought to his dissent the powerful free‐labor ideology of the victorious Republican Party. Before the Civil War, he had been a leading Republican jurist and judge; after the war he transformed this notion of equality into constitutional opinions. In his dissent in the Slaughterhouse Cases and in Munn v. Illinois (1877), Field clung to his own personal version of this free‐labor ideology. He admitted that states had the right to regulate the economic activity of public enterprises, like the grain elevator companies in Munn, when that regulation was evenhanded and served a genuine public need. But regulation of public businesses and private enterprises had no natural stopping place; it might, Field wrote in Munn, “justify an intermeddling with the business of every man in the community, so soon, at least, as his business became generally useful” (p. 141).

Though not a major theme in substantive due process scholarship, which instead focuses on the doctrine as a defense of property, it is apparent that Field's concern was the protection of free‐labor ideology. Ironically, Field's antebellum Republican views better fit the Gilded Age than they did the Reconstruction era. His view of the Due Process Clause gained ground in the almost entirely reconstituted Court of the late 1880s and 1890s. Field was never as comfortable with giant corporations as newer members of the Court, such as Justices David Brewer and Rufus Peckham, but his ideal of liberty of enterprise became the orthodoxy of the Court in the late nineteenth century. Field's concurrence in Butcher's Union Co. v. Crescent Co. (1884), a direct descendent of the Slaughterhouse Cases, expressed this vision: the “liberty of the individual to pursue a lawful trade or employment” was a “common right,” one of the “certain principles of morality … without which society would be impossible, … [one of the] certain inherent rights [that] lie at the foundation of all action.” “[U]pon them alone,” Field wrote, “can free institutions be maintained” (p. 756).

For the Court, substantive due process was the wedge by which states were barred from abridging freedom of contract and liberty of enterprise. Substantive due process would take on a life of its own, but at its heart it remained a vision not of constitutional law but of a good society whose free marketplaces were managed by a benevolent, invisible hand. Equality of opportunity would be undermined by class legislation. Too much state intervention would pervert and destroy the natural relationships by which the United States had become an economic giant. One may say with much truth that freedom of contract theory was as responsible for the formulation and continuing vitality of substantive due process as substantive due process was for the legitimation of freedom of contract.

The Court expanded its jurisdiction by holding the states to a substantive due process standard (see Judicial Power and Jurisdiction). Potentially, every state regulatory statute had to pass muster as a valid exercise of health, welfare, morals, or police power. Most went untouched, but whenever a statute was found unconstitutional under substantive due process review a furor invariably ensued. In Allgeyer v. Louisiana (1897), the Court overturned a Louisiana law requiring all corporations doing business with Louisiana residents to pay fees to the state. In Lochner v. New York (1905), the Court found a maximum‐hours statute unconstitutional. In Adair v. U.S. (1908) the Court voided a federal law barring dismissals of interstate common carrier workers because they were members of unions. In Coppage v. Kansas (1915) the Court invalidated a state law barring yellow dog contracts. In Adkins v. Children's Hospital (1923) the Court struck down the minimum‐wage‐setting powers of a District of Columbia employment commission. The Court relied on substantive due process grounds to void price regulation in nonpublic industries and licensing of nonpublic enterprises, and the prevention of German‐language teachers and parochial school teachers from earning a living at their trade (see First Amendment).

The Reasonableness Standard

Throughout these cases, the Court asked itself whether the state economic regulations were reasonable—that is, did they fit the legitimate objectives of state intervention in the economy. The public/private enterprise distinction Chief Justice Morrison Waite employed in Munn was one attempt to elucidate a standard of reasonableness, as was the Court's weighing of evidence on the health of bakers in Lochner. The alternative—simple and uniform deference to the popularly elected representatives in state legislatures and Congress—was unpalatable to the majority in these substantive due process cases. The search for an appropriate and supple test of reasonableness—a rule of reason—in substantive due process cases nevertheless bedeviled the Court.

Meanwhile, progressive critics of substantive due process, notably James Thayer, Louis D. Brandeis, Roscoe Pound, and Theodore Roosevelt, accused the Court of setting itself up as a “super legislature” (see Progressivism). The same criticisms were voiced even more stridently by a new generation of reformers in support of New Deal programs. Recognizing that the line between public enterprises and private business and labor had become blurred in an administrative state and conceding that the legislatures had far greater ability to find and weigh facts than did the courts, Progressives on the Supreme Court, including Chief Justice Charles Evans Hughes and Justices Owen J. Roberts, Harlan Fiske Stone, and Benjamin N. Cardozo, began to lead the Court away from the freedom of contract version of substantive due process.

In Nebbia v. New York (1934), the Court, speaking through Roberts, found that a New York statute establishing a commission to fix milk prices was a reasonable health and welfare measure. The Court could only ask that state regulation not be unreasonable or arbitrary and that the regulation have a real relation to the object of the legislation. Free market forces had failed to accommodate themselves to the needs of the community. There was nothing sacred about commodity prices that would prevent their regulation in the public interest.

The Court tackled minimum wage laws, the second major object of the Court's scrutiny under the regime of substantive due process, in West Coast Hotel Co. v. Parrish (1937). A much‐divided Court, with the majority clinging to a strict version of substantive due process, validated a Washington State minimum wage law for women. Chief Justice Hughes wrote that the “Constitution does not speak of freedom of contract” (p. 391). Hughes signaled that Field's logic of free labor, which laissez‐faire advocates had gilded with their own ideal of free markets, no longer influenced the majority of the Court. He did not strike at the doctrine of substantive due process per se, but at the freedom of contract faith hidden within the older economic version of substantive due process. As Hughes wrote, “The liberty safeguarded [by the Due Process Clause] is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people” (p. 391). The state could protect the liberty of a class of workers who were in an unequal bargaining position and were relatively defenseless against inadequate wages. The state could insure liberty as well as curtail it, a conception quite opposite Field's and one more appropriate to the New Deal than the antebellum free‐labor ideology. After West Coast Hotel, economic due process review went into an eclipse from which it has not emerged.

If economic due process cases no longer absorbed a major portion of the Court's energies, substantive due process challenges to state and municipal regulations thrived in a new setting. Though recent Courts have generally observed a deferential policy toward state economic regulations, it has exempted from that approach state laws that discriminated against groups unable to gain the ear of the legislature, groups discriminated against by reason of race, gender, or other suspect categorization, and groups whose private lives were unduly invaded by the state (see Suspect Classification).

Challenges to Segregation

In particular, the deferential approach to state economic regulations was not extended to state restrictions on the right to vote in primary elections or state‐sponsored or state‐condoned segregation of education, public facilities, or employment (see Segregation, De Jure). These decisions remade private worlds as well as public places, ending widespread patterns of segregation. Critics of Brown v. Board of Education (1954) claimed that its sweeping language had no textual basis in the Constitution and, like economic due process, it merely rested upon the external, private social and philosophical beliefs of the justices. Given the great differences in the regional, political, and educational background of the justices on the Brown Court, their unanimity could not have arisen from a consensus of personal values, but the critics are right in one respect: Brown and its sister cases do reflect deeply felt aspirations that reach behind the text of the Constitution.

Privacy

Beginning in the 1960s, a new class of “social” substantive due process suits issues arrived on the Court's docket. These tracked our society's heightened concern for expressive individualism and the right to practice distinct family and personal lifestyles. The “new” social substantive due process rested on the recently articulated freedom of personal choice and privacy that the justices found in the “penumbras” of the Bill of Rights in Griswold v. Connecticut (1965), and imposed upon the states through the Due Process Clause of the Fourteenth Amendment. The right to exercise those choices in the private spaces of one's life sustained the legality of abortion in Roe v. Wade (1973) but did not protect homosexuals or adulterers from prosecution (see Homosexuality), permit policemen to violate departmental personal‐appearance regulations, deny states the right to collect and store information on drug prescriptions, or prevent state and local governments from releasing employees without explanation. In this group of cases the deferential policy of the Court proved that the freedom of contract doctrine is alive and well, for the government employer and the dismissed employee were hardly equal in bargaining power, particularly when the employee could not force the employer to divulge the reasons for the dismissal.

Despite the Court's retreat, under Chief Justice William H. Rehnquist, from earlier social due process decisions, substantive due process retains its protean ability to adapt constitutional law to changing social mores. In tandem with claims based on the Equal Protection Clause, due process challenges to state laws restricting individual choice will continue to make their way to the Supreme Court.

See also Capitalism; Fundamental Rights.

Bibliography

Lawrence Friedman , The Republic of Choice, Law, Authority, and Culture (1990).
Herbert Hovenkamp , The Political Economy of Substantive Due Process, Stanford Law Review 40 (1988): 379–447.
William E. Nelson , The Fourteenth Amendment (1988).
Michael J. Phillips , Another Look at Economic Substantive Due Process, Wisconsin Law Review (1987): 265–324.

Peter Charles Hoffer