Making Sense of Substantive Due Process (Part III)

Substantive due process principles took a serious hit in a few landmark cases during the 1870s. In the Slaughter House cases of 1873 the Court held a New Orleans law to monopolize the butcher business and deny the natural right to work a lawful job for many butchers was constitutional. What was worse, the Court decision basically wrote the privileges and immunities clause out of the Fourteenth Amendment. Because of the Slaughter House cases, later Courts would rely on the due process clause of the Fourteenth Amendment to elevate substantive due process rights. Also, in Bradwell v. Illinois (1873) the Court denied a woman the right to practice law. Even in United States v. Cruikshank (1877) the Court held that the lawful constitutional rights to bear arms and to peacefully assemble only applied to the federal government and states could deny these fundamental rights.

The most controversial substantive due process decision (other than Roe and Dred Scott) was Lochner v. New York (1905, sometimes referred to as the Bakeshop Case). In Lochner the Court upheld most of a New York law to improve bakery work conditions and sanitation issues. The one provision of the law the Court struck down was a provision to limit employee work hours to 10 hours per day and 60 hours per week. The Court held via substantive due process that a work contract between employer and employee was a natural right and government could not interfere to restrict that liberty. Lochner, today, is viewed as a terrible decision by both the right and left. I am in the minority to see it as a good decision. Some laws may have good intentions and may benefit some workers, but they could also be devastating to workers needing money to support their families. Bakery work hour limits could also be devastating to mom and pop bakery shops who are having a tough time competing against larger bakery corporations because they cannot afford to employ more workers. Besides, the New York law was arbitrary in the sense it only placed restriction on bakers and no other types of professions. By the time the Court decided Nebbia v. New York (1934) and West Coast Hotel v. Parrish (1937) during the New Deal, the Court had overturned Lochner era “right to contract” doctrine. The New Deal Court upheld any and every state and federal legislative effort to interfere with individual liberty over economic issues. Individuals no longer had an option to work the hours they wanted or decide if a union was in their best interest. Individuals could no longer make critical decisions over their own welfare. In fact, in Williamson v. Lee Optical (1955) the Court held that an Oklahoma law preventing a person from working a lawful occupation (that Lens Crafters does today) was Constitutional. The Court found the law was “rational” even if it did not entirely make sense.

The progressive era did much damage to the Constitution and individual rights. Justices such as Oliver Wendell Holmes and Louis Brandies trampled on people’s right: From Mueller v. Oregon (1905, denying women the right to work), Bailey v. Alabama (1916, enslaving Blacks in prison for violating work contracts), Buck v. Bell (1927, compulsory sterilization), Schenck v. United States (1917, placing people in prison for publishing anti-draft pamphlets) to Kormatsu v. United States (1943, interning Asian Americans). Justice Holmes would have gone further if he could. In his Abrams v. United States dissent Holmes wrote “persecution for the expression of opinions seems perfectly logical.” What’s even worse, in his dissent in Kawananakoa v. Polybank Holmes wrote that citizens had no right to sue the federal government.

Substantive due process has been pivotal in protecting many individual rights throughout our history: Meyer v. Nebraska (1923, the right to learn a foreign language among other things including marriage, the right to a legal profession, and the right to contract to name a few), Pierce v. Society Sisters (1925, the right to educate children in private schools), Skinner v. Oklahoma (1942, the right to procreate), Rochin v. California (1952, the right for individuals to be free from any government action that may “shock the conscience” and violate individual rights), O’Connor v. Donaldson (1975, right of non-dangerous mentally ill to avoid confinement), Griswold v. Connecticut (1965, the right to privacy – although it was not very well defined since the right is not absolute), Moore v. East Cleveland (1977, the right for a grandmother to live with their grandchildren), BMW v. Gore (1996, the freedom from excessive punitive damages), Troxel v. Granville (2000, the right for parents to make decisions for their children), Lawrence v. Texas (2003, the right to private consensual sexual behavior), and McDonald v. Chicago (2012, the right to self-defense) to name a few of many examples where substantive due process was necessary to prevent any government restrictions on individual natural rights that were not enumerated in our Constitution or Bill of Rights. In fact, none of the above cases are controversial in any regard because they make perfect sense to prevent intrusive and unnecessary government restraint. In fact, cases such as Gideon v. Wainwright (1963) where the Court held the Sixth Amendment applied to the states was a pivotal case for individual rights. Gideon was the first of many cases where the Court applied the Bill of Rights to the states despite earlier precedent holding the Bill of Rights only applied to the federal government. This was not officially substantive due process because the Court was merely applying rights to individuals already outlined in the Bill of Rights of the Constitution, but Gideon was just as important to recognize that individual rights are protected both at the state and federal levels as any substantive due process decision. The goal and entire purpose of the Constitution is to protect individual rights first and foremost. And without any compelling government interest to violate individual rights, then the law should be voided. It is that simple.