Due Process intro + Economic DP

Question 1

Slaughterhouse Cases (1873) J. Miller

Answer 1

Issue: Does the 14th amendment privileges/immunities clause mean to apply the Bill of Rights to the states?

Facts: LA legislature gave monopoly in livestock/slaughterhouse business. Several butchers challenged the monopoly, saying the law violated their right to practice their trade

Holding: Narrow interpretation of 14th A: DP, equal protection, and privileges/immunities clauses used to sustain law

13th and 14th amendments were solely to protect former slaves

Can’t restrain state to exercise their trade

Implications: Privileges/immunities clause remains nullity, while restrictive interpretations of DP and EP clauses have been overruled

Immunities clause: Court said all of the rights this clause meant to protect already existed before the clause was adopted, thus it was rendered a nullity, and has been ever since

Dissent: shouldn’t render clause a nullity

Question 2

Emergence of DP

Answer 2

Post-Slaughterhouse: Bill of Rights couldn’t apply to states through privileges/immunities clause → Court used DP clause as the alternative approach

Views:

Total Incorporationists: all of the Bill of Rights should be included in DP clause

Selective Incorporationists: only some of Bill of Rights were sufficiently fundamental to apply to state gov’ts

Question 3

DP DEBATE ISSUES + COURT OPINION

Answer 3

Three issues frame this debate:

• Framers intent
• Federalism concerns
• What is the proper judicial role

Currently: Court has never endorsed total incorporationist approach, but practically, Court has found almost all of the provisions to be incorporated

Question 4

Substantive Due Process Criticisms

Answer 4

1. DP clause only refers to procedures, not substantive rights – wrong provision
2. Court is protecting rights that aren’t expressly enumerated in Constitution
3. Criticisms of how Court has used the doctrine (Lochner, Roe)

Question 5

Substantive Due Process Defense

Answer 5

1. Due process of law includes substantive limits
2. Must protect rights that aren’t expressly stated (non-originalism)

Question 6

Lochner v. New York (1905) J. Peckham

Answer 6

DP clause was used to ensure that laws served adequate purpose, otherwise, gov’t can’t interfere.

3 principles:

Freedom of K is a basic right protected as liberty under DP clause

Gov’t could interfere w/ freedom of K only to serve a valid police purpose: protect public safety, public health, or public morals

It was judicial role to carefully scrutinize legislation interfering w/ freedom of K to make sure it served valid police purpose

Holding: Court declared a NY law that set max hours that bakers could work was unconstitutional as violating DP clause – interfered w/ freedom of contract and did not serve valid police purpose

Question 7

Nebbia v. NY (1934) J. Roberts

Answer 7

shift to judicial deference

Holding: Court upheld a NY law that set prices for milk.

Asserted that property rights and contract rights are not absolute – power to promote general welfare is inherent in gov’t

Need to have judicial deference for legislative choices - “evils in the market” wouldn’t right themselves through ordinary supply and demand

Question 8

West Coast Hotel v. Parrish (1937) J. Hughes

Answer 8

key abandonment of Lochner

Holding: Court upheld state law that required minimum wage for women employees and expressly overruled previous cases

Abandoned Lochner principles: Constitution speaks of liberty and prohibits deprivation of liberty w/o DP, sometimes regulations adapted in the interests of the community is DP

Exploitation of a class of workers who have unequal bargaining power is detrimental to their well-being and gov’t can interfere

Question 9

Levels of Scrutiny

Answer 9

​Source: United States v. Carolene Products Co. (1938) Footnote 4

1. Rational Basis
2. Intermediate Scrutiny
3. Strict Scrutiny

Question 10

Rational Basis