How Many Times Was Lochner-era Substantive Due Process Effective? - Michael J. Phillips

• Publication year: 1997

How Many Times Was Lochner-Era Substantive Due Process Effective?by Michael J. Phillips^*

I. Introduction

According to Justice David Souter, it is "most familiar history" that back when the Supreme Court took a restricted view of the commerce power, it also "routinely invalidated state social and economic legislation under an expansive conception of Fourteenth Amendment substantive due process."¹ As the word "routinely" suggests, Souter evidently believed that this Lochner Court² struck down a large number of laws on substantive due process grounds³ during the years 1897 to 1937.⁴

As discussed later, other observers agree. Although they recognize that the old Court rejected more substantive due process attacks than it accepted, they also suggest that cases of the latter kind numbered approximately 200. This means that during the forty years comprising the Lochner era, the Court used substantive due process to strike down government action an average of about five times a year.

The question of economic substantive due process's impact has intrinsic historical interest.⁵ Because the Court seems to be slowly reviving the doctrine,⁶ the question is assuming greater practical importance as well. The prospect of a new economic substantive due process naturally awakens traditional criticisms of the Lochner Court. But some of these criticisms assume that the doctrine had a strong impact.

The first and perhaps the most formidable of these attacks is that because the original meaning of due process was procedural, substantive due process is illegitimate.⁷ The usual justification for this positivistic argument is that when courts broadly interpret vague provisions like due process to strike down legislation, they offend democratic values.⁸ But the less often economic substantive due process was used in this way, the less vulnerable it is to charges of judicial legislation.

Another common criticism of Lochner-era substantive due process is that it unjustifiably benefitted business interests. For example, many people say that the doctrine's practical effect was to knock out progres-sive social legislation designed to protect workers against the hazards of industrialization and their employers' superior bargaining power.⁹ The fewer times economic substantive due process had these consequences, one would think, the less valid is this particular charge.

A further, somewhat less common, attack on the Lochner Court builds on the previous argument. Not only did economic substantive due process have the effect of assisting business, this argument runs, but it was consciously intended to have that effect.¹⁰ In other words, the doctrine resulted less from the old Court's belief in laissez-faire than from its desire to perpetuate business power. But if the Lochner Court struck down relatively few laws on substantive due process grounds, one must wonder about its commitment to business hegemony.

This Article's main aim is to determine the number of times the Supreme Court used substantive due process to invalidate government action during the years 1897 to 1937 inclusive. Of course, this is an incomplete measure of the doctrine's impact. A fuller assessment would include the number of successful substantive due process challenges in the lower federal courts and the state courts and, more importantly, the ratio of successful to unsuccessful claims in all relevant forums.¹¹ An even fuller analysis would try to consider decisions whose impact is disproportionate to their numbers. One reason for this Article's limited scope is that the latter undertakings obviously are difficult ones. Another is that, as far as I can tell, this Article's relatively modest task has not been adequately accomplished. Despite the reams that have been written on the Lochner era, no one has clearly demonstrated how many times the Supreme Court invalidated government action on substantive due process grounds throughout the full period from the

1890s until the late 1930s.¹² Or if anyone has done so, that achieve-ment has not gained much notoriety.

The Article opens by briefly sketching some problems with contempo-rary accounts of Lochner-era substantive due process and with contempo-rary estimates of its impact. Then it examines in detail one plausible source of the recurrent assertion that economic substantive due process claimed some 200 victims in the Supreme Court. Depending on how one classifies certain groups of Lochner-era due process decisions, the doctrine's real Supreme Court body count is much lower. And even if the term substantive due process is construed broadly, that count still is well below 200. On either reading, moreover, the relevant decisions do not always conform to the dominant stereotypes about old-time economic substantive due process. Nor do they support familiar stereotypes about certain members of the Court; as discussed later, even Justice Holmes often wrote or voted to invalidate laws on substantive due process grounds. Following these discussions, the Article briefly develops the implications of its findings for some standard criticisms of

Lochner-era substantive due process. Overall, the findings blunt those criticisms to some degree.

II. The Standard Account of Lochner-Era Substantive Due Process

Contemporary discussions of Lochner-era substantive due process generally discuss or cite only twenty or so well-known decisions.¹³ Heading the list is Lochner v. New York itself,¹⁴ in which the Court struck down a New York maximum-hours law for bakery employees.¹⁵ Prominent in most accounts, moreover, are some other famous employ-ment cases. These include the old Court's controversial decisions in Adair v. United States,¹⁶ Coppage v. Kansas,¹⁷ and Adkins v. Child-ren's Hospital.¹⁸ Also typically included are two or three equally famous decisions in which the Court upheld maximum-hours laws.¹⁹ Two other regularly discussed cases are the decisions widely regarded as initiating and closing the Lochner era: Allgeyer v. Louisiana²⁰ and West Coast Hotel v. Parrish.²¹ Another frequently included decision is the Court's 1877 decision in Munn v. Illinois²² which established that states have considerable latitude to regulate businesses "affected with a public interest."²³ Sometimes, our standard sources go on to discuss one or more of several lesser-known decisions exploring what might be called Munn's negative implication: that states have limited freedom to regulate businesses not affected with a public interest.²⁴ Usually they also discuss Nebbia v. New York,²⁵ the case in which the affected-with-a-public-interest doctrine met its demise. Also occasionally discussed are two 1920s decisions striking down state laws regulating the weights at which loaves of bread could be sold²⁶ and forbidding the use of "shoddy" in beds, pillows, upholstered furniture, and the like.²⁷ Much more prominent are two "personal rights" decisions that provided some authority for the modern constitutional right of privacy: Meyer v. Nebraska²⁸ and Pierce v. Society of Sisters.²⁹ Sometimes getting a brief mention, finally, are some old Court decisions striking down restrictions on entry to a business, trade, or occupation.³⁰

To some of our standard sources, however, these twenty or so cases evidently are the tip of a much larger iceberg. Those sources seem to say that the old Court invalidated approximately 200 state and federal laws on substantive due process grounds.³¹ The sources also do nothing to dispel the natural impression that their 180 or so additional cases resemble the substantive due process decisions they do discuss. As authority for their figures, the relevant sources invariably cite Benjamin Wright's 1942 study entitled The Growth of American Constitutional Law.³² At one point, Wright states that "[b]etween 1899 and 1937 there were 212 cases in which state legislation was held to be unconsti-tutional for failure to preserve the guarantees of the Constitution regarding the rights of persons. There were 18 such cases involving Congressional acts."³³ After discussing some "civil rights" cases, Wright examined decisions involving "the rights of property." Early in the latter examination, he stated:

Excluding the civil liberties cases, there were 159 decisions under the due process and equal protection clauses in which state statutes were held to be unconstitutional, plus 16 in which both the due process and commerce clauses were involved, plus 9 more involving due process and some other clause or clauses.³⁴

However, Wright's subsequent discussion does not examine or cite 184 such cases.³⁵ He does cite a source which lists something like that number and describes it as a "comprehensive list of cases in which state action was held contrary to the Fourteenth Amendment through 1938."³⁶ This is Felix Frankfurter's 1938 book, Mr. Justice Holmes and the Supreme Court. In an appendix to that book, Frankfurter provides a list and individual short descriptions of "Cases Holding State Action Invalid Under the Fourteenth Amendment" from 1877 through 1938. For the years 1897 to 1937 inclusive, the appendix lists 220 cases.³⁷

On the whole, Frankfurter's list is reasonably complete and accu-rate.³⁸ However, for present purposes, obvious omissions in the list include seven Lochner-era cases striking down federal action on substantive due process grounds³⁹ and another case invalidating a Philippine law under the due process provision contained in the islands' constitution.⁴⁰ The list also did not include four substantive due process decisions invalidating state action.⁴¹ On the other hand, four cases contained in Frankfurter's appendix probably should not have been included.⁴²

III. A Breakdown of Frankfurter's List

The previous additions and deletions leave us with 228 decisions invalidating government action on Fifth or Fourteenth Amendment grounds during the years 1897 through 1937. Do these cases substanti-ate the claim that during the Lochner era, the Supreme...