Introduction.

• Position: Fidelity, Economic Liberty, and 1937

In 1937 and the years immediately following, the Supreme Court profoundly and permanently transformed constitutional jurisprudence. In several decisions, the Court demonstrated that it was no longer willing to interpret the Due Process Clause of the Fourteenth Amendment to prevent governmental regulation of economic activities. By doing so, the Court switched from its earlier view, under which it vigorously protected economic liberties from state interference, and signaled it would uphold the government's regulation of economic liberties if it passed a relaxed--some would argue perfunctory--standard of review.

The decisions of 1937 did not signal the death of "substantive due process" as a doctrine that the Court would use to invalidate police power regulations. To the contrary, on numerous occasions subsequent to 1937, the Court invalidated legislation that interfered with noneconomic, personal liberties on notions of"substantive due process" or its derivative. Indeed, although West Coast Hotel Co. v. Parrish(1) memorialized the Court's disenchantment with using the Fourteenth Amendment to strike down legislation interfering with economic liberties, the Court signaled that it would treat personal liberties differently just one year later. Writing for the majority in United States v. Carolene Products Co.,(2) Justice Stone confirmed that "regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless ... it is of such a character as to preclude the assumption that it rests on some rational basis...."(3) In the most famous footnote to be found in the U.S. Reports, Justice Stone laid the foundation for the Court's use of the Fourteenth Amendment to invalidate legislation impinging upon fundamental constitutional values.

Accordingly, since the 1937 transformation, the Court has used the doctrine of "substantive due process" or its derivative to protect personal liberties, while offering little protection to economic liberties. The central issue raised in this symposium on Fidelity, Economic Liberty, and 1937 is whether this distinction between economic liberties and personal liberties--that the...