The Evolution of Substantive Due Process (Part I)

The Substantive Due Process doctrine is lawyer jargon and in essence it is when the Supreme Court reads “fundamental rights” into its decisions that are not located anywhere in the Constitution. These “fundamental rights” are inferred from either the Ninth Amendment or the “due process” clause of the Fourteenth Amendment. Actually, “fundamental rights” should be guaranteed through the “privileges and immunities” clause of the Fourteenth Amendment but that clause was essentially (and incorrectly) written out of the Constitution in the Slaughter House cases in 1873 (Just five years after the Fourteenth Amendment was added to the Constitution). To understand which rights are “fundamental” or privileges please read my article: “The Best Non-Supreme Court Decision: Corfield v. Coryell”. Coryell coupled with the Civil Rights Act of 1866 best outlines these unalienable or fundamental rights for two reasons: Coryell gives insight into the thoughts of our founding fathers who adopted the Constitution and the Civil Rights Act of 1866 gives insight into the purpose behind the Fourteenth Amendment.

The first Substantive Due Process decision by the Supreme Court was the infamous Dred Scott case in 1857. In this case, the Court held that African Americans have no rights (even free blacks) under the Constitution. Obviously there is no such statement in the Constitution, the Constitution is “color blind” as Justice Harlan said in his dissent of Plessy in 1896. Hence, every future substantive due process decision has the dubious distinction of being a principal or doctrine founded under Dred Scott.

The doctrine disappeared for about a half-century until 1905 in Lochner v. New York where the Court held that our fundamental rights included the “freedom of contract”. The Court struck down a New York statute that tried to mandate a 10 hour work day and 60 hour work week for bakers. The Court held that an employer and employee had the right to agree to any contract for work hours. Of course, “freedom of contract” is nowhere to be found in the Constitution, but it can be found in the Civil Rights Act of 1866. And “freedom of contract” is deep rooted in American history and tradition. The Lochner Era Court would use the “freedom of contract” to strike down economic regulations by state governments for 30 years. The concept of “freedom of contract” would be overturned in 1937 in West Coast Hotel v. Parrish when the Court upheld work hour limitations for women and children. Of course Parrish was discriminatory because it made it almost impossible for women and children to find work since no such limitations were placed on men. However, the Court had a history of being discriminatory against women and quite frequently used “expert” testimony and data prepared by men to show that women were “inferior” (See Bradwell v. Illinois or Mueller v. Oregon).

The Lochner Era Court had two other significant decisions: Meyer v. Nebraska (1923) and Pierce v. Society of the Sisters (1925). In Meyer the Court held “Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” In Meyer the Court struck down a law that prohibited the learning of a foreign language before the age of 10, but in doing so it elevated numerous “fundamental rights” not found in the Constitution. In Pierce the Court held the fundamental right for parents and guardians of children to “direct the upbringing and education of children under their control.” Many of these fundamental rights outlined in Meyer and Pierce are still law today.