Constitutional Law Class Notes 4/5/04


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 United States today.  These are the cases that define the big issues.  These are big deal cases and they can be analyzed on many different levels.


Lochner v. United States


What’s this case about?  New York had a law that said that bakers couldn’t work more than 10 hours a day or 60 hours a week.  Why does that law present a constitutional question?  The Supreme Court said that this law violated the Due Process Clause of the Fourteenth Amendment.  But how does the regulation of the amount of hours that a bakery worker works raise an issue of due process?  The question is whether the state is allowed to interfere with the freedom of contract.  Who asserts the freedom of contract?  It seems that the right was asserted by the owner of the bakery.  The employer wants freedom of contract to hire his employees for more than 60 hours a week or more than 10 hours a day.  Does the Due Process Clause of the Fourteenth Amendment say anything about the freedom of contract?  No way!


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 New York law limits the liberty of contract.  But does it take away the liberty of contract without due process of law?  Lochner was charged with and convicted of a crime.  This case is being appealed from the Court of Appeals of New York.  He violated a criminal law, and he went through a trial!  Foley suggests…isn’t that due process?  That’s procedural due process.  But that may not be substantive due process.  It’s like the process itself is irrelevant!  We basically read it as: “No state shall deprive a person of liberty…period!”  The notion is that you can’t take away certain liberties or certain people’s liberties.  This is substantive!


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 New York’s reasons for enacting this law in the first place?  How can we argue that the law shouldn’t be unconstitutional in the first place?  New York made a public health argument: they argued that they needed to limit bakers’ working hours to protect bread consumers from unhealthy bread.  We want to look at every argument put forth by both sides!  Parse out all the asserted reasons the government gives that the law should survive constitutional scrutiny.  The second health reason was the health of the baker themselves.  They put forth evidence to suggest that the dust from the flour causes lung disease and other ailments of the workers themselves.  Why did the Court reject that argument?  The Court said that in the case of mine workers, it makes sense that coal dust and other dangers constitute serious, pressing, and obvious safety concerns for the workers.  In that case, the Court would let the government interfere with liberty of contract under a strict scrutiny analysis.  But the Court finds a bakery too “run of the mill” to be interfered with.  The Court finds that the New York law is too “paternalistic”.


Lochner deals with sweatshops!  Some people think that law firms are like sweatshops.  What if the state of Ohio passed a law that capped the number of hours that a law firm could hire an associate for?  People could disagree about whether that’s good policy.  Should the Court get involved with this policy debate?  Holmes argued that this is exactly what the Court was doing and that they shouldn’t get involved in the legislative process.


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 New York assert to justify the law?  This is an early labor law.  This is an era of industrialization and big corporations of the time had a lot of clout and power.  Teddy Roosevelt came into office as a “trust-buster”.  This was also an era of unionization among workers, especially in unskilled occupations.  The state of New York said that working in a bakery is an industry with a disparity of bargaining power such that the employer has much more bargaining power than the employee.  Thus, they argued, the freedom of bargaining power was somewhat illusory.  They basically believed that Adam Smith didn’t apply to the modern industrial economy.  So they attempted to justify the law as a labor law enhancing the economic bargaining power of the workers.


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 Oklahoma law that said opticians cannot fit lenses.  In the old days, you might want to have your glasses fixed by putting old lenses in a new frame.  You had to get a new prescription to put old lenses in a new frame.  You had to go to the ophthalmologist or optometrist, not the optician.  The optician could have done it just as well, though.  This is an interference with the liberty of contract too!  What was the claim under the Due Process Clause?  Is this substantive due process or procedural due process?  The optician isn’t complaining about a lack of notice, for example.  They’re complaining that you shouldn’t be able to keep them from putting old lenses in new frames, period.


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 New York law gets rejected even as a consumer health measure, this one should be rejected too because the consumer health and safety explanation is very slim.  The Court uses the standard of being “rationally related to a legitimate purpose”.  The judicial mindset is totally different with Williamson than with Lochner.  In reality, the ophthalmologists and optometrists had better lobbyists than the opticians!  This was a way to line the pockets of the ophthalmologists!  The Lochner Court would have definitely struck this down.


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. Connecticut


What is this about?  What are the facts and what is the constitutional question?  There is a law in Connecticut saying that you’re not allowed to use birth control.  Griswold is Exective Director of Planned Parenthood in Connecticut and helps couples with birth control.  The Connecticut law may be bad, but why is it a problem under the Constitution?  Is there a marital privacy clause in the Constitution?  No way!  It doesn’t exist!  At best, the right to privacy is implied.  But where?  It’s not in the Commerce Clause.


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 Connecticut law?  Does the First Amendment apply to the state of Connecticut?  No!  Only to Congress.  The Third Amendment doesn’t apply to Connecticut either.  None of the provisions of the Bill of Rights actually directly apply to the state of Connecticut.   So if we accept the penumbra theory as a theory of the Bill of Rights, it would make sense to say that Congress has no power to pass a law that outlaws birth control.  Did they even have birth control in 1787?  James Madison would have felt that Congress had no business getting involved in such things.  Madison would think it was a state issue.  We can imagine that the Bill of Rights identifies some specific subjects that we’re “reminding” Congress that they’re not allowed to do.  Maybe marital privacy was something that Madison just forgot to include because he could never conceive of Congress interfering in that area.


But how does this affect Connecticut?  The Bill of Rights only applies to the federal government!  What about the Due Process Clause of the Fourteenth Amendment?


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 Connecticut law against contraception is because of the substantive due process doctrine.  There is no specific provision of the Constitution that applies.  It’s a penumbra!  There also was no “freedom of contract” in the Due Process Clause, but Lochner incorporated that as a “liberty”.  Liberty of contraception may be different than the liberty of contract, but it seems to be a similar form of reasoning in this case as in Lochner!


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?  Connecticut has made having birth control a crime.  Suppose that Connecticut found out somehow that a particular married couple is in possession of condoms, for example.  They fill out a warrant saying that they have probable cause to believe that a crime was being committed, namely, the possession of contraceptives.  So they get the warrant.  Would the execution of that warrant be an unreasonable search and seizure in violation of the Fourth Amendment?  Is the Court saying that this is a per se violation of the Fourth Amendment?  They wouldn’t need to rely on the penumbra theory if the Fourth Amendment covered this situation.  But the Fourth Amendment doesn’t apply.  What if the married couple didn’t have birth control, but rather LSD.  They claimed that LSD improved their sex life.  Does the Griswold privacy right protect the use of LSD in the privacy of the marital bedroom?  How do we know whether LSD is in the “penumbra” along with condoms?  Condoms are in the penumbra.  What about Viagra?  LSD doesn’t seem to be in the penumbra, though.  This is what we must think about.  Since the actual Constitution doesn’t tell us any of this, we need to reason it out to figure out what’s going on.


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?


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