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!
cases that we’ll talk about today will most define the current thinking about constitutional
law in the
this case about?
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.
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.
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.
was Williamson all about? The Court upheld an
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.
is this about? What are the facts and
what is the constitutional question?
There is a law in
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
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?
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”.
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
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?