Stay-at-home-orders Amicus Brief (Part IV)

III. Denying Rights

Rational Basis Scrutiny

The assault on working rights was accomplished using rational basis scrutiny in a few important cases Nebbia v. New York 291 U.S. 502 (1934) and United States v. Carolene Products 304 U.S. 144 (1938). In Nebbia, SCOTUS held a New York law prohibiting the sale of a quart of milk for under nine cents was lawful.

The rational basis test introduced in Nebbia has been used by courts to decide cases up to the present time. Rational basis places the burden of proof on those fighting government regulation. In Nebbia, SCOTUS reasoned it was rational for states to create laws that were thought to be in good faith to protect its citizens during an economic crisis (the Great Depression). Courts using a rational basis test very rarely strike down any law or statute, even if they are unconstitutional.

Carolene Products was another blow to working and contract rights using rational basis scrutiny. In this case, SCOTUS upheld the Filled Milk Act, which prohibited Carolene Products from shipping its product via interstate commerce. Since filled milk cost three cents less per quart than milk, the milk lobby stopped a reputable company from pursuing its right to a lawful occupation and it denied customers the right to contract with Nebbia or Carolene Products to purchase their products.

Carolene Products is more famous for Justice Stone’s footnote four than its misguided decision. In footnote four, Justice Stone listed a few instances in which a state law may come under stricter scrutiny when determining its constitutionality. For instance, if any rights in the Bill of Rights are abridged then stricter scrutiny is needed to evaluate the state law. In addition, if a minority is disenfranchised then the law would face stricter scrutiny. Both Nebbia and Carolene Products proved that economic minorities did not matter since SCOTUS held that a mom and pop shop and a single company competing against the national dairy lobby held no minority status. What’s worse, footnote four protects only those rights found in the Bill of Rights, not those rights outlined by Justice McReynolds or Rufus Peckham opinions in Meyer or Allgeyer respectively. For instance, both McReynolds and Peckham argue there is a fundamental right to work a lawful occupation or to enter into contracts, but Justice Stone’s opinion holds the right to a lawful occupation or the right of contract can be abridged using a rational basis test because they are not in the Bill of Rights. Justice Stone created what Edward Keynes called a double standard of rights.

During the great depression in Wickard v. Filburn 319 U.S. 111 (1942) SCOTUS upheld the Agriculture Adjustment Act (AAA) of 1938 denying a citizen to grow wheat in excess of what was allotted by the AAA even if it was to feed to his livestock and family. In Wickard, the Commerce Clause was given more priority than a man’s right to happiness, family, and work. In Williamson v. Lee Optical 348 U.S. 483 (1955), SCOTUS upheld an Oklahoma law prohibiting Lee Optical from doing what Lens Crafters does today using the rational basis test originating from Nebbia and Carolene Products.

National Crisis

One of the first cases involving a dispute over public health and citizen’s rights was the Slaughterhouse Cases 83 U.S. 36 (1873). In this case, both sides had legitimate narratives. The government wanted to protect citizens from cholera and other diseases from improper disposal of waste from butcher stores that was contaminating drinking water. To solve the problem the government created a butcher shop monopoly. Obviously, the majority of butcher shop owners objected because they lost their right to work a lawful job. SCOTUS incorrectly sided with the government because they lost sight of one key question: Was the government’s solution the least evasive in the face of a deadly cholera crisis? The answer was categorically no because the government could have protected the health and safety of citizens without denying citizens the right to work a lawful profession. For example, protecting public health could have been accomplished by making laws for butcher business to follow when disposing of animal byproducts.

Most disputes between government and citizens civil liberties arise from national emergencies such as Covid 19, war, and the great depression. In most disputes in times of national crisis it is common for government to restrict the fundamental rights of some citizens to protect the fundamental rights of welfare, health, and safety of other citizens. First Amendment rights were restricted in the Alien and Seditions Act of 1798 when the country faced potential war with France. Similarly, in Schenck v. United States 49 U.S. 47 (1919) First Amendment rights were restricted during World War I. In Schenck, SCOTUS upheld the Espionage Act of 1917 holding citizens could not oppose the military draft during a national crisis. In Korematsu v. United States 323 U.S. 214 (1944), SCOTUS denied interned Japanese-Americans the right to due process during World War II. In Buck v. Bell 274 U.S. 200 (1927), SCOTUS maintained that mandatory sterilization was legal. Buck was a drastic measure to protect the welfare and safety of “normal” citizens from “undesirable” citizens such as those diseased, deformed, or intellectually challenged.