Substantive Due Process (Part I)

Substantive due process is a law term and my definition of it is as follows: It is a means by which lawyers can use the fourteenth amendment (particularly the due process clause) of the Constitution to introduce theories about the intent of the constitutional framers. In other words, it is judicial activism. The deception that is substantive due process has been going on for a long time – even before the fourteenth amendment. Some trace it all the way back to the Dred Scott decision in 1857. But the first major landmark case said to using substantive due process was Lochner v. New York in 1905. I would disagree with this assessment, that the Lochner decision used substantive due process, for the following reasons:

First, the Supreme Court found all of the health condition provisions of the Bakers Act of 1895 Constitutional. There was only one provision of the act that come under scrutiny and that was the clause saying all Bakers had to adhere to a 60 hour work week.

Secondly, in deciding that the 60 hour work week was unconstitutional because it violated the fourteenth amendment’s right to due process because it broke the “liberty of contract”. This was rational for a number of reasons. First, the law was arbitrary. The court could understand why the law wanted to clean up the health conditions in the baking industry. But why did the court single out just the Baking industry for a maximum hours work week? These motives were unknown. Secondly, the law was irrational for a couple of reasons. First it was arbitrary and secondly, it was seen as a way for unions of big bakeries to suppress and try to put smaller bakeries (mom and pop shops) out of business. Smaller businesses could not afford to employ enough employees to cover multiple shifts, seven days a week to adhere to the 60 hour work week. Thirdly, the maximum hours request only referred to employees and not the owners. If owners could work long hours than why not employees? Fourth, many argued that housewives work longer than 60 hours a week cooking, cleaning, and caring for their families.

A majority believe this decision was substantive due process because the right of “liberty of contract” was not in the fourteenth amendment. Hence, many deduced the decision was a theory by the justices to say “liberty of contract” was implicit in the fourteenth amendment. That is not entirely true. The fourteenth amendment was passed to enforce the Civil Rights Act of 1866. Republicans knew the South would not provide new freed slaves the rights they deserved as free citizens of the United States. So they passed the Civil Rights Act of 1866 and the Fourteenth Amendment so the courts could enforce the new law. Within the Civil Rights Act of 1866 was the right of “liberty of contract”. So this was not a theory or interpretation of the fourteenth amendment. It was the actual intent of the fourteenth amendment so this is NOT substantive due process.

The next 34 years the Supreme Court would be known as the “Lochner” era where the justices routinely used “liberty of contract” to strike down intrusive state laws that were arbitrary and irrational. It was not until the 1937 case West Coast Hotel v. Parrish, where the court’s decision flipped and the “liberty of contract” argument was no longer sufficient to strike down state laws. This is where I believe the judicial activism started, in the FDR years. Around the time of the Parrish decision FDR attempted but failed to pack the courts. And then mysteriously, associate justice Roberts changed his views on “liberty of contract”. Of course when Roberts left the court he burned all of his documents and we know very little about him and why he changed his views. Some believe that Roberts was intimidated or even bribed to side with FDR. What follows is the worst decision in U.S. history: Korematsu v. United States where internment camps used to hold 120 thousand Japanese Americans captive was ruled Constitutional during WWII. That is substantive due process at its best.