AuthorWrench, John G
PositionSubstantive Due Process: Critical Safeguard of Fundamental Rights, Flawed Doctrine or Illegitimate Fiction


By the late 19th century, the U.S. Supreme Court routinely employed a means-ends test to determine whether a state exceeded its police powers and violated rights protected under the Fourteenth Amendment to the U.S. Constitution Although modern courts identify that means-ends test as one function of "substantive due process. (2) scholars disagree about whether that judicial power is properly derived from the fourteenth Amendment's Due Process of Law Clause or its Privileges or Immunities Clause (3) That debate is beyond the scope of this article. Rather, this article responds to the objection that substantive due process, by authorizing courts to subject legislation to a means-ends test, is impracticable because it empowers courts to wander outside their core competencies and into an unbounded place that judges inevitably fill in with their personal preferences and subjective views. (4)

Courts and commentators were not always so skeptical. This article argues that the United States Supreme Court's use of a means-end analysis to adjudicate claims of right against assertions of government authority was a natural and practical exercise of the judicial power. But in the early 20th century, a combination of philosophical and political pressures partially succeeded in delegitimizing the Court's authority to invalidate certain laws when their substance failed to satisfy means-ends scrutiny. Although the Court preserved some of its former authority to invalidate arbitrary or irrational laws, it did so selectively and only after diluting means-ends review when certain "non-fundamental" rights are at stake.

This article makes two points regarding the means-ends test now associated with substantive due process. First as understood by the United States Supreme Court in the late-19th and carly-20th centuries, that test was practicable and consistent with the judicial role despite controversy arising from its application in particular cases. Second, modern courts are competent to apply the meansends test thoroughly in cases involving both enumerated and unremunerated rights. The article concludes that the "practicability" critique of means-ends review is unconvincing.

The article proceeds as follows. Part I describes the meansends test, as employed by the U.S. Supreme Court in the late-19th and early-20th centuries, and how that approach was criticized in the context of economic regulations. Part I also traces how the Supreme Court preserved the means-ends test in the service of certain "fundamental" rights under the newly minted tiers of scrutiny, while affording most unremunerated rights little protection from political majorities. Next. Part II demonstrates that courts remain highly competent at ascertaining and weighing facts relevant to the adjudication of claims raised under the Fourteenth Amendment, including claims based on unremunerated rights.


    By the late 19th century, the Supreme Court was accustomed to adjudicating claims raised under the Fourteenth Amendment using a familiar means-ends analysis of the state's exercise of police power, or, in cases involving the federal government legislation furthering an expressed power. The Court reviewed such claims without reference to the tiers of scrutiny" which were, as discussed below, a later improvisation. The Court's reasoning also hinged less on lengthy discussions of the claimed right than on whether the government's exercise of power employed rational means to further legitimate ends. Victoria Nourse accordingly suggests that "[t]o understand the forgotten constitutional discourse of the early twentieth century. one must begin with power, not right" (5)

    In theory, a government of limited powers did not need to enumerate rights at all. Rights were residual, the "leftovers" beyond the limits of power. In this sense, rights were not textual, because to consider them textual was to belittle them. Rather, they were held by the people prior to. and did not depend upon. textual instantiation. The constitutional discourse of the day was for the most part not clause-bound, because it operated on a premise that began with the limits on government power. (6) Nourse suggests that the question for courts was rather straightforward: is this legislative act a "fair, reasonable, and appropriate exercise of the police power of the State....?"

    1. The Early Means-Ends Test and the Skeptics of Judicial Review

      A handful of pre-Lochner cases illustrate what Nourse calls the "forgotten constitutional discourse (7) of the early 20th century. (8) In Crowley v. Christensen, the Court upheld a California law restricting the sale of alcohol. (9) Justice Field explained that, although individuals possess the right to pursue lawful trades, the Court was satisfied that California could regulate the sale of alcohol--a potential source of nuisance--and had done so without pretext and arbitrariness. (10) In Allgeyer v. Louisiana, the Court struck down a Louisiana statute prohibiting state citizens and entities from entering into contracts with out-of-state marine insurance companies. (11) Allgeyer, a New York citizen, was prosecuted under the statute after sending a letter of notification from New Orleans to a New York business. (12) The Court noted that Louisiana could validly exercise its police powers to regulate instate businesses and consumers, but had failed to articulate how that authority justified this application to an out-of-state resident's contract with an out-of-state business for services to be performed out-of-state. (13) In Gundling v. City of Chicago, the Court upheld Chicago's ordinance prohibiting the sale of cigarettes without a license. (14) Justice Peckham noted that the ordinance should be upheld unless it is "unreasonable." "extravagant in [its] nature and purpose.'' or "wholly arbitrary. (15) In light of the "character of the article to be sold," the Court concluded that Chicago's ordinance was constitutional. (16)

      Lochner v. New York is the subject of such profound political distortion that its rather unremarkable facts can go ignored. (17) Lochner involved a challenge to New York's Bake Shop Act. which regulated various characteristics of the baking industry, (18) For example, it regulated features such as plumbing and drainage, sleeping quarters, ceiling height, painting standards. bathrooms. and inspections, all of which the Court upheld as valid exercises of police power in the face of legal challenge. (19) However, section 110 of the Bake Shop Act prohibited bakers from working for more than ten hours per day or 60 hours per week. (20) Joseph Lochner challenged the Act's constitutionality after being indicted for violating the maximum-hours law. (21) The Court began its analysis from a now-familiar question: "(i)s this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty [?]"--As in the cases preceding Lochner. the Court understood the question before to be whether the state exercised its authority within the scope of its police powers.

      Writing for the majority, Justice Peckham held that New York's maximum hour law was not a legitimate exercise of the police power.- (23) In particular. Peckham stated that the law's relationship to the health of bakers was unacceptably remote. (24) The Court also rejected New York's argument that a ten-hour maximum was justified because it increased cleanliness, finding the restriction arbitrary. (25) The Court deemed these justifications so removed from a valid exercise of police power that it suspected me maximum hour law was "in reality, passed from other motives"-- specifically, as a "labor law" benefiting special interests. (26)

      Justice Harlan's dissenting opinion, joined by Justice While and Justice Day, agreed on the majority's analytical framework hut took aim at its factual conclusions regarding the maximum-hour law. (27) Harlan began by citing prior cases describing the familiar means-ends test: "If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end. although not the wisest or best, are yet not plainly and palpably unauthorized by law. then the court cannot interfere." (28) Under that test. Harlan continued, "the burden of proof is "upon those who assert it to be unconstitutional." (29) Harlan granted that "there is a liberty of contract which cannot be violated even under the sanction of direct legislative enactment, but did not believe that those challenging the law met their burden in demonstrating the law's unconstitutionality. (30) In particular. Harlan drew on several empirical studies as support that bakeries arc dangerous environments that damage bakers' eyes, cause diseases, and drastically shorten workers lives. (31) Harlan concluded that there was at least "room for debate and for an honest difference of opinion" regarding die efficacy of New York's maximum hour law as a means to address concededly legitimate health and safety goals. (32)

      Justice Holmes' solo dissent suggested a novel approach that broke radically with his colleagues' understanding of judicial review. Three interrelated features of Holmes' broader legal philosophy are worth highlighting before exploring how they manifested in his dissenting opinion. First, Holmes doubted that "truth"--Whether it be truth about nature or moral axioms--can be grasped a priori, without the aid of experience or observation." Second, be accordingly viewed law as an experiential endeavor. distinct from morality and constantly evoking according to experimentation. Third. Holmes assumed that law evolves "spontaneously]" towards progress ("from barbarism to civilization") as a result of competing groups sorting out their political preferences. (35) G. Edward White thus summarized...

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