Substantive Due Process Clause (Part 1 - Lochner & First Retreat) Flashcards
ACTUAL Basic Attack - SDP
1) Party asserts an unenumerated right under 14A
2) Court determines if it’s a fundamental right using the selective incorporation test
…1) deeply rooted OR (maybe AND after Dobbs)
…2) implicit in ordered liberty
Fundamental Rights get SS
Not a fundamental right at all? Get RB
Basics of the Substantive Due Process Clause
Under Substantive Due Process, the government must demonstrate a sufficient justification to deprive individuals of certain rights. The 5A protects from Feds and 14A protects from States.
Includes both fundamental and non-fundamental rights.
What is a fundamental right?
A fundamental right is one that is implicit in the concept of ordered liberty, or a right that is so important that liberty and justice would not exist without it. There is no clear test for this.
Standard of Review: normal Strict Scrutiny
Fundamental rights include both those expressly enumerated in the BoR and implied rights (privacy, personal autonomy, ex: right to marry, right to use contraception, right to raise your kids the way you want to, etc).
What was the Lochner era?
Lochnerizing means using an aggressive sense of judicial review to strike down democratically elected legislation: “Persuade us as if we’re legislators.”
SoR: “Somewhere in intermediate land.” They didn’t use modern language of SoRs but they are closest to what we would now call intermediate scrutiny.
The Lochner Era was a period ranging from 1897-1937ish when the Supreme Court struck down a bunch of economic regulations on SDP grounds by looking at detailed facts of disputes (like in a Brandeis brief, where Brandeis tried to re-legislate the law before the court). They made these decisions based on their own reasonableness sensibilities.
Allgeyer, a case from 1897, was the first time the court relied on SDP to strike down a state law.
Lochner Era and Lochner Retreat Standards of Review
At the start of the Lochner Era, the court used something akin to intermediate scrutiny to analyze SDP claims, but not with our modern language. It was NOT deferential.
During its retreat, it became much more deferential and used rational basis (up until Ferguson, where SDP was arguably dead).
Lochner v. NY (1905)
Bakers wanted to work long hours. Gov limited them. Court struck down the restriction on the bakers under SDP (because freedom to contract exists under SDP). This is a change from Slaughterhouse (1872) where the court said Art 4 PNI gave you rights to do what you want in general and Allgeyer (where SDP first used). Lochner continued Allgeyer.
Court said that “This is not a question of substituting the judgment of the court for that of the legislature.” But that’s exactly what they did and that’s what the Lochner era was about.
Neither the majority nor dissent tried to say there was no such thing as SDP.
Theory 1: Standard Theory
The standard theory is that the Court was just very committed to laissez faire principles during the Lochner Era. Justice Holmes accused the Court of this.
Theory 2: Revisionist Theory
There are a lot of laws that the Court upheld during this period; it didn’t just strike down everything. This makes the Standard Theory not fully accurate. The court wants to be legislators and they want to make those judgment calls on whether they like the law themselves. That’s the second theory.
Theory 3: Whim
This isn’t really a theory but rather just the jaded perception that the Court did whatever it felt like during the Lochner Era.
Retreat from Lochner
The court around 1937 sets itself on a trajectory to be much more deferential to legislation, almost to the point of not really having SDP. Seven cases illustrate this shift:
Meyer v. Nebraska
Pierce v. Society of Sisters
Bartels v. Iowa
West Coast Hotel v. Parrish
Carolene and Footnote 4
Williamson v. Lee Optical
Ferguson
Meyer v. Nebraska
Part of the Lochner Era. A state law criminalizing teaching kids foreign languages violates the 14A SDP.
Pierce v. Society of Sisters
Also Lochner Era. State law criminalizing failure to enroll kids in public school violated the right of parents to direct their childrens’ upbringing.
Bartels v. Iowa
Also Lochner Era. Law requiring all schoolchildren to be taught English. Struck down for same SDP reasons as Meyer.
West Coast Hotel v. Parrish
Break from Lochner. Much more deferential tone.
Court upholds minimum wage law (that’s the first sign of shift away from Lochner) as consistent with the SDP - “regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process”.
Carolene and Footnote 4
Carolene:
Court upheld fed law prohibit interstate commerce with “filled” milk (unhealthy). Court begins writing rules for how to handle SDP claims. They say if there are any facts that could justify the law, then we presume there’s a rational basis. Strong deference breaks from Lochner and weakens SDP.
Footnote 4:
The Court is saying that even though they preach strong deference here in Carolene with the filled milk, there may be other situations where people claim individual rights invoking SDP and the Court will go back to being aggressive. For example, with enumerated rights, something more than strong deference is appropriate.
Footnote 4 is famous because the court says that it will be less deferential in situations where someone is being shut out of the political process, especially a “discrete and insular minority”. That means a group that isn’t powerful enough to be relevant on their own, so it would be hard to form political affiliations to get stuff they want.
Equal Protection Clause later shows this influence.
