What is Substantive Due Process?
Constitutional law recognizes fundamental principles which are ordained by our Creator. There was a time, however, in the early 1900s when the U.S. Supreme Court only applied the Bill of Rights to state & municipal governments in order to restrict the Progressive agenda.
Constitutional Law during the Lochner era. From 1897 through 1937, the U.S. Supreme Court ruled on a number of cases involving economic issues where the court struck down state regulations that restricted business owners. Child labor laws and minimum wage laws, for example, were held to violate the freedom of contract, a liberty interest under the 14th Amendment. The 14th Amendment guarantees life, liberty and property and requires due process under the law before state governments can invade such interests. At one time, the Court consistently held that the 14th Amendment only guaranteed fundamentally fair procedural safeguards. But the Lochner era cases found that freedom of contract was a substantive liberty interest under the U.S.Constitution
However, even before FDR was president, the Court began invalidating minimum wage laws, federal child labor laws, regulations on banking, insurance and transportation industries and unions. These years are often called Lochner era because the Court began a process of discovering substantive legal rights that were often characterized as freedom of contract; i.e., court created liberty interests protected by the 14th Amendment.
The Supreme Court played an activist role during the Lochner era. The Court sometimes invalidated state and federal legislation that inhibited business or restricted free enterprise. In the 1930s, the Court invalidated labor and market regulations such as laws attempting to abolish Yellow Dog contracts. Employees signed Yellow Dog contracts promising not to join labor unions as a condition of employment. The pro-business Supreme Court agenda ran head on into FDR’s New Deal laws. FDR threatened to add several new justices to the court in order to prevent the court from striking down laws enacted by the New Deal Congress.
In a case that came to the court from Washington state, West Coast Hotel Co. v. Parrish, some of the Conservative justices unexpectedly sided with Roosevelt administration’s position that minimum wage laws are permitted by the United States Constitution.
In the West Coast Hotel case, Chief Justice Hughes stated the following:
“ The principle which must control our decision is not in doubt. The constitutional provision invoked is the due process clause of the Fourteenth Amendment governing the states, as the due process clause invoked in the Adkins Case governed Congress. In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty.
West Coast Hotel Co. v. Parrish
Congress rejected the Roosevelt proposal to pack the court and it is often assumed that the Supreme Court was bowing to political pressure after President Roosevelt’s proposal to enlarge the Court. Justice Owen Roberts, who had previously voted to strike down similar legislation, joined the wing more sympathetic to the New Deal and upheld the Washington state law setting a minimum wage for women.
Thus, Lochner era judges invented novel economic “rights” — most notably “substantive due process” and “liberty of contract” — and then injected their own Conservative pro-business values upon the Due Process Clause of the Fourteenth Amendment. It is hard to deny that the Court was actively abrogating the authority of state legislatures and Congress by finding unrestricted liberty interests that were not specifically enumerated in the U.S. Constitution.
Between 1899 and 1937, the Supreme Court held 159 statutes unconstitutional and another 25 were struck down in reference to the due process clause coupled with some other provision. When the Fourteenth Amendment was adopted in 1868, 27 out of 37 state constitutions had provisions which typically said: “All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring and possessing and protecting property: and pursuing and obtaining safety and happiness.”
Nevertheless, finding that such provisions guarantee the right of a child to contract for long hours performing factory work requires stretching the text to find rights that are not enumerated in the Constitution. The authority to make laws remains with state legislatures except where the Constitution specifically provides otherwise.
Two early substantive due process cases, Pierce v. Society of Sisters and Meyer v. Nebraska, were decided during the Lochner era. These two cases helped legitimize the modern substantive due process decisions involving the constitutional “right to privacy’ which opened the door to the Court’s prohibition on most state and federal laws restricting abortion. The so-called right to privacy is not enumerated in the Constitution and also is the basis for the Court striking down state laws against consensual sodomy, thus fueling the same sex marriage agenda and many other issues that have divided our society and ignited the Culture wars.
In Lochner v. New York (1905), the Court struck down a New York State law limiting the number of hours bakers could work on the grounds that it violated the bakers’ “right to contract”.
The following Supreme Court decisions are typical cases from the Lochner era:
• Allgeyer v. Louisiana (1897), striking down state legislation prohibiting foreign corporations from doing business in the state
• Lochner v. New York (1905), striking down state legislation limiting weekly working hours
• Adair v. United States (1908), striking down federal legislation prohibiting railroad companies from demanding that a worker not join a labor union as a condition for employment (“yellow-dog contract”)
• Coppage v. Kansas (1915), striking down state legislation prohibiting yellow-dog contracts
• Adams v. Tanner (1917), striking down state legislation preventing privately owned employment agencies from assessing fees for their services
• Hammer v. Dagenhart (1918), striking down federal regulation of child labor
• Duplex Printing Press Co. v. Deering (1921), construing federal legislation not to exempt labor unions from antitrust lawsuits
• Bailey v. Drexel Furniture Co. (1922), invalidating a federal tax on interstate commerce by employers hiring children
• Adkins v. Children’s Hospital (1923), striking down federal legislation mandating a minimum wage level for women and children in the District of Columbia
• Nichols v. Coolidge, 274 U. S. 531 (1927)
• Railroad Retirement Board v. Alton Rr., 295 U. S. 330 (1935)
• Louisville Joint Stock Land Bank v. Radford, 55 Sup. Ct. 869 (1935)
• United States v. Butler (1936), construing congressional taxing power to invalidate the Agricultural Adjustment Act
• Carter v. Carter Coal Company (1936), striking down federal legislation regulating the coal industry