Hello. Sorry for the writing layoff, but non-COVID illnesses haven’t gone away, and I unfortunately managed to come down with an “interesting” gastrointestinal one two weekends ago, followed by a common cold immediately thereafter (which still isn’t completely gone), then followed by a hernia (because I failed to take my physical age into account; it’s not true that “you’re only as old as you feel”). Three-plus weeks of no writing was the result, which was sad because I didn’t write during the end of the Supreme Court term, a fascinating time about which there still is a lot to write. But I’m sure most of you have similar illness stories in your past, because these are the old standby viruses that masking and remote contact seemed to prevent, and these are also the old standby physical injuries that recur when you return to activity after being less active. It’s a challenge for our long-isolated immune systems and physical bodies to be put to the test again.
I’ll leave the rest of the details of my illnesses to either your memory or your imagination.
SCOTUS wraps up
Although there are a number of things that I want to write about, ranging from Paul McCartney turning 80 to the Saudi-backed LIV Tour in golf to the re-alignment of U.S. college football to the continuing death match in the Russo-Ukrainian War (unfortunately, the current posture of this war is: “The only thing better than a dead Russian soldier is two dead Russian soldiers”), I’m going to dedicate this entire return to the first half of the conclusion of the write-up about unenumerated constitutional rights, which became a real issue in the just-completed (as of 30 June) 2021-2022 Supreme Court term. From the standpoint of an originalist/textualist, this 2021-22 Supreme Court term was one of the best since the execrable Roger Taney became Chief Justice all the way back in 1836. And yet virtually none of that is covered in the popular press, which has infuriated me since even before I became a lawyer.
I daresay that, based on the way the mainstream media covers the Supreme Court, more than half of America is unaware that the Supreme Court’s rulings aren’t just pulled out of a political hopper but actually are constrained by the laws of the United States. Perhaps one of the reasons so few people actually understand this is the popularity among media and academics of the “living Constitutionalist” / “pragmatist” philosophy, which I discussed in this post and contrasted to the originalist / textualist model that dominates the current Court. But another possible cause is the way that Brown v. Board of Education is covered in our grade-school history classes, with its socio-economic analyses of inequality and the sweeping concluding statement: “Separate educational facilities are inherently unequal”. The very language of the decision makes clear that the Supreme Court paid less attention to the law than it did to considerations that should have been discussed in legislative hearings. However, a legislating Court is no longer a court but just another political organ.
And yet, perhaps the widespread ignorance shouldn’t surprise me. A 2017 Constitution Day survey by the Annenberg Center found that only about one out of four Americans (26%) can name all three branches of the U.S. government (legislative, executive, judicial), while about one out of three Americans (33%) couldn’t name even one. Keeping that in mind, the number of people who flock to such anti-democratic and ahistoric causes as the cult of The Former Guy or the smaller but still powerful cult of the “democratic socialists” or the even smaller but no less cultish 1619 Project really shouldn’t be a shock, although it is definitely a disappointment to any patriotic American.
One of the points that I made in that previous article contrasting textualists and originalists with pragmatists and living Constitutionalists was that the dominant figure of the 1950s through the 1980s on the Supreme Court, progressive Justice William Brennan (who dominated both the Warren and Burger Courts, until Chief Justice Burger’s resignation in 1986), was very clear that he looked at the Constitution as a declaration of principles, not as a set of laws and rules, and that his viewpoint influenced his rulings accordingly. As a result, many of his rulings are based on Justice Brennan’s vision of an ideal world rather than on the black letter (or, in fact, any colored letter) of the law. However, because Brennan was replaced on the Court by one of his admirers, David Souter, and then Souter was replaced by Sonia Sotomayor, halting and then reversing the Brennan progressive train has taken quite a while; in fact, this term might be the first term that such a reversal has truly happened since Justice Brennan’s initial appointment in 1956.
I’m not going to recap my discussion of whether justices need to legislate, which I discussed in this article. I’ll just simply restate my conclusions: judges are not legislators, were never tasked with legislating, and should not pretend to be legislators. The fact that the U.S. Congress has been willing to allow the executive branch and the administrative agencies to legislate in its stead since the New Deal, without requiring a Constitutional amendment first, is one of the major governmental blunders of the last 125 years of Constitutional law. But nothing in that time period was worse than the growth of “substantive due process”, and we’ll discuss that now.
Substantive due process, from Dred Scott . . . to Roe?
As Chief Justice, Roger Taney was the author of the 1857 case Dred Scott v. Sandford, a case which not only directly caused the American Civil War but also invented a doctrine (apparently in an 1852 case called Bloomer v. McQuewan) later known as “substantive due process" — described as “the question of whether the government’s deprivation of a person’s life, liberty, or property is justified by a sufficient purpose.” Just to establish the dishonorable origins of the concept, here is where Taney applied it in Dred Scott, in the part of the opinion that invalidated the ban in the Northwest Ordinance on bringing slaves into the Northwest Territory:
The rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence [sic] against the laws, could hardly be dignified with the name of due process of law.
Note that Taney is claiming that the prohibition on bringing your slave into the Northwest Territory is a violation of the Fifth Amendment. But due process, or “procedural due process” as it became known after this, simply asks whether the government has followed the proper procedures when it takes away someone’s life, liberty or property. And, in fact, the adoption of the Northwest Ordinance did indeed follow those procedures, so procedural due process wasn’t violated.
So Taney’s claim has to go beyond that, instead claiming that the “right” to take your slave into the Northwest Territory is an “unenumerated right” provided under the Constitution (as discussed in this post), even though no one had ever claimed that before under the Constitution. Prior to this point, the standard claim about unenumerated rights, as we ended that discussion pointing out, was that they were provided for in the Privileges and Immunities Clause, and Justice Bushrod Washington explicitly placed them there in his 1823 decision (Corfield v. Coryell) quoted in that post:
[W]hat are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.
But, because Taney’s “due process” claim is for a violation of a substantive unenumerated right, it became known as “substantive due process” and became a separate issue from “privileges and immunities”.
[This might be the right place to note that Thomas Jefferson, who was known to be anti-slavery despite inheriting significant slaveholdings (but unfortunately was impecunious enough that he couldn’t afford to manumit his slaves, since giving up so much of his wealth would likely have been challenged by his creditors and then put him in the poorhouse), may actually have first written “life, liberty, and property” in the Declaration of Independence before revising it to “life, liberty, and the pursuit of happiness”, and the speculation is that Jefferson would have made the change specifically to exclude slavery, because slaves were included in “property”. But Taney was a true believer.]
And yet, within ten years, several hundred thousand deaths, and three constitutional amendments, Dred Scott was a dead letter. How did “substantive due process” escape that cubbyhole and end up at the center of Roe v. Wade?
Do politicized cases make worse law than hard cases?
Unfortunately, the first step of that process came about in a Supreme Court case we discussed previously — The Slaughter-House Cases — that intentionally disregarded Section 1 of the 14th Amendment to the Constitution. As we discussed previously, Section 1 went further that the original Constitution and applied all of the enumerated and unenumerated Constitutional guarantees of citizens’ rights against each of the states as well. Here is Section 1, in its entirety:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Let’s consider the issues in The Slaughter-House Cases. The undisputed claim was that the New Orleans area had a pollution and odor problem due to the presence of slaughterhouses located in the unincorporated areas outside of the city, about a mile to two miles upriver of the city. In response, and in return for a huge payoff (can we say “graft and corruption”, boys and girls?), in 1869 the Louisiana legislature passed a law that gave one slaughterhouse a 25-year monopoly over the performance of slaughterhouse services in the area; everyone had to use it, period, and all competition was illegal. In response, the competing slaughterhouses sued, noting that the 14th Amendment had said that no state “shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States”, and this law prevented individuals from pursuing legitimate and legal occupations.
Ah, but there is an external driver to the case that cannot be overlooked. Remember, the law at issue was passed in 1869 and covered New Orleans. New Orleans was a proud Southern city that was conquered and held by the Union starting in April 1862, only a little over a year after the Civil War started. The residents and the Union troops hated each other, and the military occupation of the city stretched into Reconstruction. Oh, and what were the politics of the Louisiana legislature that passed the law? Like most Southern reconstruction legislatures, it was biracial and despised by the antediluvian Southern aristocracy.
And who was the leader of the lawsuit brought by the excluded butchers? Based on the prior sentences, it probably won’t be surprising to learn that the lawyer behind the lawsuit, who argued the case in the Supreme Court, was a prominent Confederate: John A. Campbell, a deep Southerner and very distinguished former U.S. Supreme Court justice (whose memory is tainted by his place in the majority as well his separate concurrence in Dred Scott) who resigned from the Court in April 1861 to side with his home region. He had quickly identified the potential of the Privileges and Immunities Clause of the 14th Amendment to serve as a barrier to the power of state legislatures — including the Reconstruction legislatures, which may have been an unexpected side effect to the northern Republicans.
Based on the undisputed health crisis caused by the slaughterhouses, the Supreme Court could have decided The Slaughter-House Cases the same way that it later decided zoning cases: as a valid use of a state government’s police power, in this case due to recurring and serious illnesses resulting from the pollution caused by the current slaughtering locations and practices. Indeed, the 5-4 majority opinion spends much time discussing such police power issues. But it did not stop there and instead developed a novel reading of Section 1 of the 14th Amendment.
To most of us, as well as to the congressmen who adopted it, the language of the Privileges and Immunities Clause in Section 1 should be read to state that there are privileges and immunities that all citizens of the United States share, and states cannot abridge those fundamental rights. Put another way, it seems obvious that the clause should be read to tell us whose privileges and immunities are protected: the citizens of the United States. But that wasn’t the spin applied by by the SCOTUS majority in 1873. Instead, it claimed that the clause was written to tell us what privileges and immunities are protected: a particular (and limited) set of federal privileges and immunities that arise from being a citizen of the United States (such as using the navigable waters of the U.S. and its protection on the high seas), which doesn’t include ANY of the unenumerated rights described by Justice Bushrod Washington.
None of the members of the majority left any records that documented how or why they reached this conclusion, except of course for the inadequate majority opinion. Generally, two theories have been proposed to explain how the majority ended up so far off-base and so far away from the meaning that Congress had anticipated. The first possibility is that the majority, who were strongly anti-slavery, expected that Reconstruction would last for a long time and so there would be many more challenges similar to this one against the Reconstruction legislatures in the south coming from ex-Confederates, which they wanted to nip in the bud. However, Reconstruction was ended just four years later, in 1877, as part of a deal that permitted the Republicans to steal the presidency in the 1876 election, the only truly corrupt election in U.S. history (despite the lunatic rantings of The Former Guy about 2020).
The second theory is that the majority was trying to nullify the application of the privileges and immunities of U.S. citizenship to the states. As we’ll see in the next section, applying unenumerated rights to block economic regulations became very controversial. And it is indeed possible that the majority believed that it could head off such efforts in the future by neutering the 14th Amendment right off the bat. But — as we just witnessed in Roe v. Wade — the only way to disregard the actual black-letter law indefinitely is to ensure that your side always has the majority forevermore. Unfortunately, if that actually was the majority’s intent, the justice who wrote the principal dissent in The Slaughter-House Cases, Stephen Field, became the longest-serving justice ever on the Court (1863-1897), before his tenure was surpassed in the 1970s.
Sliding down the slippery slope
Two more cases on the Privileges and Immunities Clause in the 14th Amendment followed in short order. In the first, Bradwell v. Illinois (1873), the court again refused to apply the clause to permit a woman who had passed the bar examination to be licensed as an attorney in Illinois and the majority opinion claimed once again that this provision only applied to the federal privileges and immunities that arise from being a citizen of the United States (interestingly, this case was decided 8-1, with only Chief Justice Salmon P. Chase (who also dissented in The Slaughter-House Cases) dissenting, and Chase died about a month after the decision was issued). [The other three judges who dissented in The Slaughter-House Cases held that women had no rights other than through their husbands, which was no less a distortion of the 14th Amendment than the majority opinion.] Despite this odious decision, the Illinois legislature adopted a statute in 1872 prohibiting sex discrimination in professional licensing; however, Bradwell was not granted her Illinois law license until 1890, and she died from cancer just four years later.
The second case, U.S. v. Cruikshank (1876), was far worse, because it overturned the federal convictions of the perpetrators of the racist Colfax massacre in Colfax, Louisiana, including members of the Ku Klux Klan, in what has been described as the worst instance of racial violence during Reconstruction. Current estimates of black deaths during the Colfax massacre range from 62 to 153 (three of the white attackers were also killed). However, a 5-4 SCOTUS majority held that the Bill of Rights still did not apply to the states (despite the fact that Congressional debate indicated that that was one of the primary purposes of the 14th Amendment), and so the law under which the murderers were convicted, the Enforcement Act of 1870, did not apply. If, as is generally believed, the purpose of the ruling in The Slaughter-House Cases was to prevent challenges to the Reconstruction governments from ex-Confederates, Cruikshank illustrates that politicized decisions will have unforeseen, and perhaps even disastrous, consequences.
Plessy v. Ferguson was a horrible decision. But it is hard to deny that U.S. v. Cruikshank was worse, because it denied federal protection for the rights of blacks and thus directly set up the awful ruling in Plessy.
By the way, although The Slaughter-House Cases is still good law, these other two decisions (Bradwell and Cruikshank) unsurprisingly are not. For those who think that prior Supreme Court decisions should be treated as if they were handed down by the gods, these cases provide direct evidence of why that cannot be.
Back to the Future Past
These three cases foreclosed the proper application of the Privileges and Immunities Clause of the 14th Amendment to the current day. But . . . there was still a Supreme Court precedent out there that would permit Constitutional guarantees, including unenumerated rights, to be applied to the states: Dred Scott and “substantive due process”. And after Cruikshank, Justice Field began dropping notes into his numerous opinions that the Due Process Clause might apply Constitutional rights against the states.
In 1897, Justice Field’s last year on the Court, came a unanimous decision titled Allgeyer v. Louisiana. The case turned on a Louisiana statute that required that any out-of-state insurance company that insured property within the state had to have an appointed agent within the state. An international shipment of cotton passed through the state, and Louisiana fined the insurance company $1,000 for not having a local agent. The unanimous court overturned this fine, citing the Due Process Clause in the 14th Amendment and stating:
The “liberty” mentioned in [the 14th A]mendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.
And so Justice Field finally managed to “sneak” the plan established by the 14th Amendment into the Constitution, albeit through a back door because prior bad decisions of the Court had barricaded the front door. But the idea of “liberty” soon ran into the fact that a majority of the Court applied this same theory to the nebulous theoretical concept of economic liberty. The next case where “substantive due process” came up was in the most famous (or, perhaps, infamous) “substantive due process” case prior to Roe v. Wade: Lochner v. New York (1905).
Lochner and economic liberty of contract
Again, the facts matter. In 1895, New York passed a Bakeshop Law, making it illegal for bakeries in the state to employ bakers for more than 10 hours per day or 60 hours per week (the owners could work more hours, however). The problem with this law was that most small bakeries (largely run by European immigrants) needed someone to watch the oven 24 hours a day to keep it hot — and to keep from burning down the neighborhood. Accordingly, the law had the effect of favoring larger bakers (who could afford to hire shift workers) over smaller ones (who generally wanted to have someone sleep on the premises.
Lochner, an immigrant from Germany, owned a successful bakery in Utica, and he could afford shift workers. However, he wanted to challenge the law, which he saw as discriminatory against immigrants, and so he and one of his workers set up a test case to challenge the law. Accordingly, Lochner was charged in 1899 and then convicted for violating the employment limits of the Bakeshop Law; he appealed to the Supreme Court, claiming that the hours limit in the Bakeshop Law violated the unenumerated right described as “liberty of contract” — in other words, the state could not prevent individuals from contracting to work more hours per day or per week than its prescribed limit. The Supreme Court agreed 5-4, applying similar logic to that employed in Allgeyer. After Progressive presidential candidate Theodore Roosevelt built much of his 1912 “Bull Moose” campaign in campaigning against the Lochner decision, this case became the namesake for an entire string of cases striking down governmental attempts to limit working hours or regulate working conditions.
The most interesting dissent from Lochner was the solo dissent of the legendary Justice Oliver Wendell Holmes, Jr. (citations omitted):
I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent.
This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. The other day, we sustained the Massachusetts vaccination law. United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Two years ago, we upheld the prohibition of sales of stock on margins or for future delivery in the constitution of California. The decision sustaining an eight hour law for miners is still recent.
Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.
General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.
And right off the bat, the entire argument with “substantive due process” under the 14th Amendment had crystallized, probably about the same way that it would have crystallized had the 1873 Supreme Court properly applied the Privileges and Immunities Clause under the 14th Amendment. As Justice Holmes noted, claims that a particular right was an unenumerated right under the Constitution would be little more than the opinions of certain justices unless it could be shown “that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” [In a 2019 case, the Supreme Court restated this test as whether the claimed liberty was “‘deeply rooted in [our] history and tradition’ and whether it is essential to this Nation’s ‘scheme of ordered liberty.’”]
The end of the Lochner era
The very existence of “substantive due process” continued to be severely criticized over the years. Twenty-five years after Lochner, and shortly before his retirement, Justice Holmes returned to the subject in his dissent in a 1930 case:
I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.
[For those of you who might think, from my numerous favorable references to Justice Holmes, that he was above error, please take a gander at his majority opinion in the notorious 1927 pro-eugenics case Buck v. Bell before proceeding. No one who has ever served on the Court has been above error, and yet the country has survived for over 230 years despite that. Keep that in mind before panicking over any one decision.]
Justice Holmes wasn’t the only person who had problems with the Lochner doctrine; the continued use of that doctrine in overturning state legislation led directly to President Franklin Roosevelt’s threats to “pack the Court” after he won re-election in 1936. In fact, the “switch in time that saved nine” was the Court’s changed majority that discontinued the use of the “substantive due process” doctrine, beginning with its decision in West Coast Hotel Co. v. Parrish (1937). In that case, a 5-4 majority of the Court (including Justice Owen Roberts, previously a supporter of the Lochner doctrine) held that the Constitution permitted the restriction of “liberty of contract” by state law where such restriction protected the community, health and safety, or vulnerable groups (as in this case, where the issue was women’s working hours in a hotel). For the majority, Chief Justice Charles Evans Hughes wrote:
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. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.
And in the next twenty-five years, the Supreme Court completely abandoned the “substantive due process” doctrine, finally acknowledging its total termination in the majority opinion in a 1963 case (Ferguson v. Skrupa):
The [“substantive due process”] doctrine that prevailed in [several prior Supreme Court] cases -- that due process authorizes [federal] courts to hold [state] laws unconstitutional when they believe the [state] legislature has acted unwisely -- has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.
Before continuing, it’s worth taking into account what we have already learned. Is there such a thing as “unenumerated rights” of U.S. citizens that are protected under the Constitution? Clearly, the answer is yes, and Justice Bushrod Washington provided us with a partial set of them. Do those rights just apply against the U.S. government? Up until the 14th Amendment, the general answer would have been “yes” — but the Privileges and Immunities Clause of the 14th Amendment applied them against the states as well, even if the Court made an incalculable blunder in The Slaughter-House Cases on just that issue that has still not been fixed almost 150 years later. Has SCOTUS made lots of bad decisions in the past when the justices ruled that their personal beliefs should be treated as the law? Is there any question about that, especially after this review?
But then came Griswold v. Connecticut just two years later, followed just eight years after that by both Roe v. Wade and Doe v. Bolton. And that’s where we’ll start Part 3.
Be seeing you.
Well, that was a lot to absorb. I think I’ll have to read it twice more! Hope you are feeling much better. Looking forward to the next installment.