Constitutional
Law Class Notes
There’s
going to be a marathon week this week!
Today we go straight through, and Wednesday we have two separate things.
We’re
only scratching the surface!
The
cases that we’ll talk about today will most define the current thinking about constitutional
law in the
Lochner v.
What’s
this case about?
How
does Lochner assert, and how does the court accept,
that this maximum hour law is a violation of the Due Process Clause when the
claim is that it’s interfering with freedom of contract? The Fourteenth Amendment has a Privileges and
Immunities Clause, but the Slaughterhouse
Cases pretty much shoved this clause aside.
There’s also the Due Process Clause, of course. The Court says that freedom of contract is a kind of liberty. They say the
There
is a separate doctrine in Constitutional
Law called “procedural due process”.
That phrase would be redundant if it weren’t for “substantive due
process”. Is this ridiculous? Why didn’t the Court just admit they were
wrong and turn around and overrule their precedent? There’s stare decisis, but also the Court
doesn’t like to admit that it’s wrong.
Also, is there such a sharp dichotomy between procedural and substantive
due process? It may be hard to draw
lines between substance and procedure!
Smart lawyers, once the Privileges and Immunities Clause was taken away,
did an end run around the Slaughterhouse
Cases by coming up with substantive due process and using “rate-making
proceedings” to attack the procedures first, and then the substance of the
proceedings. They built up 30 years of
precedent to get the Court comfortable enough to issue Lochner. But there was a lot of history that preceded Lochner. They had been doing a “fuzzy” version of substantive
due process for some years before.
Speaking
of the Due Process Clause, we have a separate clause in Article 1, Section 10
of the Constitution which prohibits states from enacting laws that impairs the
obligations of contracts (the “Contracts Clause”). Why didn’t the Court rely on this Clause to
come to their conclusion in Lochner? It turns out
that the actual Contracts Clause only applies to contracts that were previously
entered into. (But, I wonder…how can we
have bankruptcy laws?) In any case, that’s
not what was going on in Lochner
because the prohibition was forward-looking:
you can’t enter into a bargain for 61 hours per week ever. That’s why they couldn’t
use this in Lochner.
What
were
Lochner deals with sweatshops! Some people think that law firms are like
sweatshops. What if the state of
Lochner is going to get repudiated
in its entirety. So why do we still need
to study it today? We need to look at
the method the Court uses in reaching
its decision.
What
other interest did the state of
So
the Court said that the first two purposes were plausible, but the means of
pursuing them were not narrowly tailored enough. With respect to labor law, the Court said
that it was not a legitimate purpose! The
“labor law” goal of trying to level the playing field between employers and employees
was called antithetical to the liberty of contract! The Court says that the labor law
justification fails at the “goal” level.
Holmes was famous for saying that labor laws are per se invalid and that
the Constitution protects capitalism as such.
Holmes though that the economic system was to be determined by the
legislature. Holmes’s dissent was sort
of on a more “philosophical” level.
What
was Williamson all about? The Court upheld an
The
important thing to understand is: you can’t line these cases up, Williamson and Lochner. They are inconsistent in terms of
reasoning. All the arguments that the
Court accepts in Lochner
it then rejects in Williamson in the
1950s. The Court has the opposite judicial attitude, bending over
backwards to sustain a much sillier-looking law than the law in Lochner. If the
The
first thing we read this semester was an article about Justice O’Connor. How come?
She is the swing vote. Constitutional
Law is made by human beings who make mistakes!
The only thing you need to know to explain the shift is the existence of
the Depression and FDR’s New Deal and court-packing plan. FDR thinks that laissez-faire is passé. He wants labor laws! He wants demand-side economics! We want higher paychecks for workers! We want to constrain the supply of labor in
order to increase the price of wages!
The basic point is that the revolution in Constitutional Law under the Commerce
Clause transformed Constitutional Law both with respect to federalism issues,
and with respect to the Due Process Clause.
Lochner
was thrown out the window along with the presumption for liberty of contract! They don’t even talk about “paternalism”! We’ll let democratic legislatures decide what
sort of economic laws we’re going to have without the interference of substantive
due process. Any time that someone comes
into the Court with a law that they claim violates substantive due process, the
Court will say: “We don’t want to hear about it! The government can do it if they want!”
What’s
the status of the substantive due process doctrine today? We’ll talk about it in terms of Griswold and Roe v. Wade, but what about in an economic sense? So far, the Court hasn’t found the equivalent
of Lopez that has reawakened Lochner the way
that Lopez reawakened the old-style Commerce
Clause thinking. There have been some
hints over the last decade, but nothing like Lopez. The most important “hint”
has been in the area of punitive damages.
In two cases, the Court has invalidated very large punitive damages
awards as excessive: BMW v. Gore and another one
(State Farm?). The Court said that as a matter of the Fourteenth
Amendment, they were going to impose a ceiling on punitive damages. That sort of looks like Lochner coming
back to life. Is the problem of
excessive punitive damages a substantive problem or a procedural due process
problem of poorly-instructed juries?
That’s part of the debate, but we don’t need to worry about it for our
purposes.
Over
the next decade, these cases may be paving the way for a new case in the next
ten years that repudiates the Williamson
approach and says that contractual freedom is important and that certain laws
are too extreme. Foley thinks that there
aren’t five votes in the Court yet.
People really hate Lochner. They really,
really hate it. The New Deal has been
changing in Commerce Clause law, but it hasn’t been changing as much in substantive
due process.
Now,
let’s turn to some more modern issues.
Griswold v.
What
is this about? What are the facts and
what is the constitutional question?
There is a law in
The
Court adopts the “penumbra” concept.
Penumbra means “shadow”. The
Court finds a right lurking the shadows of the Bill of Rights. The right of marital privacy is in the shadow
of all the amendments collectively. But
how does that have anything to do with this
But
how does this affect
This
is a very, very, very, very important
point here. When James Madison sent the Bill
of Rights to the states, he sent 12 provisions, only 10 of which were
adopted. The First Amendment was
actually number three on the list.
Number two on James Madison’s list was adopted about 200 years later:
the one about the compensation of congressmen.
James Madison’s number one amendment was a provision that said no state
shall interfere with the freedom of speech and some other rights among the Bill
of Rights. The states said that the Federal
Constitution shouldn’t tell states what they can and can’t do. They felt that those rights should be
protected by the state constitutions.
The structure of what got adopted in 1791 was a list of rights that Congress
and the federal government can’t violate.
Whatever else the Ninth Amendment means, it only
says that Congress can’t violate unenumerated rights.
So where else can we look to force the states to not do stuff?
This
is the next key important point: the Bill of Rights doesn’t touch the states by
its own force. Nor does the Ninth Amendment touch the states
by its own force. But the Fourteenth Amendment incorporates the Bill
of Rights! The Fourteenth Amendment was
designed to constrain and subjugate states!
The point is that the doctrine of substantive due process is used to
take all the important rights of the Bill of Rights and funnel them into the Fourteenth
Amendment to make them applicable against the states. Some of the rights of the Bill of Rights are procedural rights. But freedom of speech or freedom of religion
are not procedural rights. So maybe “penumbra”
parts of the Bill of Rights are incorporated through substantive due process
too! But this is substantive due process! The only reason we can analyze this
How
does the Court decide what rights are “living in the shadows” of the Bill of
Rights? That’s the big big question that we’ll spend our
next two weeks on. What rights are
worthy of protection? The repudiation of
Lochner
meant that the Court was wrong in
thinking that the right of contract was especially important. The received wisdom has been that the Court
fundamentally made a huge mistake in that respect. The Court “found a right in the shadows”, and
it turned out it was wrong. If the Court
is going to be finding new rights in
the shadows, we need to find out if the rights they find are the “right rights”.
What
is the scope of Griswold? What does the right of marital privacy
entail? What does it mean? We’re not going to have police bust into
someone’s bedroom and search for contraceptives. But wouldn’t that also be covered under the Fourth
Amendment?
If
the government learns that there is LSD in a married couple’s bedroom, that’s
an illegal drug that’s not constitutionally protected. If the police have a warrant to search that
home for heroin or LSD or ecstasy, they can do that. Griswold
isn’t about the permissibility of a warrant.
It’s about what married couples can do in their bedroom that cannot be made a crime. Some things can be made a crime even when
they occur in a bedroom, but other things cannot
be made a crime (like using condoms).
How do we reason out, in the absence of any constitutional text, what
things the government can make a
crime versus those things that they cannot
make a crime?
Tomorrow,
we’ll think about the relationship between Griswold
and the abortion cases. Consider the “morning-after
pill”. What’s abortion and what is
contraception?