The progressiveness of the Lochner court

Denver University Law Review

Volumn 75, Issue 2, 1998, Pages 453-504

  Phillips, Michael J ^a,b,c,d  

^a INDIANA UNIVERSITY   (United States)

^b JOHNS HOPKINS UNIVERSITY   (United States)

^c Och Spine at New York Presbyterian Hospitals   (United States)

^d GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 0041113677     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (375)

1. Charles Warren, The Progressiveness of the United States Supreme Court, 13 COLUM. L. REV. 294 (1913) [hereinafter Warren, Progressiveness], Warren later analyzed the Court's Contract Clause and burden-on-commerce decisions for the period 1887-1911. See Charles Warren, A Bulwark to the State Police Power - The United States Supreme Court, 13 COLUM. L. REV. 667 (1913).
2. Charles Warren, The Progressiveness of the United States Supreme Court, 13 COLUM. L. REV. 294 (1913) [hereinafter Warren, Progressiveness], Warren later analyzed the Court's Contract Clause and burden-on-commerce decisions for the period 1887-1911. See Charles Warren, A Bulwark to the State Police Power - The United States Supreme Court, 13 COLUM. L. REV. 667 (1913).
3. Warren, Progressiveness, supra note 1, at 295.
4. Specifically, Warren said that the Court considered 560 Fourteenth Amendment due process and equal protection cases during this period, and that the Court struck down the challenged law in only 37 of these cases. See id. at 294-95, 309; see generally id. at 296-307, nn.7-27 (listing the relevant cases).
5. Id. at 308-09. Specifically, Warren's assertion was that 34 of the 37 successful challenges involved rights of private property. These cases concerned matters such as: deprivations of property without notice or a hearing; taxation of property outside the state's jurisdiction; confiscatory rate decisions by state legislatures or utility commissions; and various other deprivations of railroad property. In addition, there were three "social justice" cases: Lochner v. New York, 198 U.S. 45, 64 (1905) (using due process to strike down a state maximum hours law for bakery employees), overruled by Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 (1952) and Ferguson v. Skrupa, 372 U.S. 726 (1963); Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 565 (1902) (invalidating a state antitrust law on equal protection grounds), overruled in part by Tigner v. Texas, 310 U.S. 141 (1940); and Allgeyer v. Louisiana, 165 U.S. 578, 590-93 (1897) (finding invalid a state law that forbade the obtaining of marine insurance on in-state property from any carrier which had not fully complied with state law).
6. Warren, Progressiveness, supra note 1, at 310.
7. The reference, of course, is to Lochner v. New York, 198 U.S. 45 (1905).
8. Although it may be vain to define so amorphous a term as "progressive," as used in this article "progressive" includes the following elements: (1) the perception that America's industrialization created significant disparities in bargaining power between business firms and individuals, as well as other social problems; (2) the belief that positive government intervention was needed to correct these problems; and (3) the belief that advances in social science knowledge gave such intervention good prospects of success. See JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS 101-02, 104 (1992) (mentioning these three elements while describing tum-of-the-century-progressivism).
9. A later Warren study, based on the years 1889-1918, found that of the 422 Supreme Court cases involving Fourteenth Amendment due process or equal protection challenges during that period, in only 53 did the Court strike down the challenged regulation. Of the 53, only 14 concerned legislation affecting the general rights of individuals. CHARLES WARREN, THE SUPREME COURT IN AMERICAN HISTORY 741 (rev. ed. 1928). But this study does not include the 1920s, the decade when the Court was most prone to strike down social legislation on Fourteenth Amendment grounds. See, e.g., DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986 at 133-34 (1990); ALPHEUS THOMAS MASON, THE SUPREME COURT: FROM TAFT TO WARREN 70-71 (1968) (noting the Court's increased activism during the 1920s). However, it is doubtful whether the Court's 1920s activism would have changed Warren's conclusions much. The reason for such doubt is that the increase in the number of laws invalidated on substantive due process grounds during the 1920s, while significant, probably would not have greatly affected his overall numbers. A 1927 study limited to due process challenges to exercises of the police power suggests as much. The study found that the Supreme Court struck down six of 98 such laws during the period 1868-1912 and seven of 97 during the years 1913-20, but only 15 of 53 over the years 1921-27. Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943-44 (1927).
10. A later Warren study, based on the years 1889-1918, found that of the 422 Supreme Court cases involving Fourteenth Amendment due process or equal protection challenges during that period, in only 53 did the Court strike down the challenged regulation. Of the 53, only 14 concerned legislation affecting the general rights of individuals. CHARLES WARREN, THE SUPREME COURT IN AMERICAN HISTORY 741 (rev. ed. 1928). But this study does not include the 1920s, the decade when the Court was most prone to strike down social legislation on Fourteenth Amendment grounds. See, e.g., DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986 at 133-34 (1990); ALPHEUS THOMAS MASON, THE SUPREME COURT: FROM TAFT TO WARREN 70-71 (1968) (noting the Court's increased activism during the 1920s). However, it is doubtful whether the Court's 1920s activism would have changed Warren's conclusions much. The reason for such doubt is that the increase in the number of laws invalidated on substantive due process grounds during the 1920s, while significant, probably would not have greatly affected his overall numbers. A 1927 study limited to due process challenges to exercises of the police power suggests as much. The study found that the Supreme Court struck down six of 98 such laws during the period 1868-1912 and seven of 97 during the years 1913-20, but only 15 of 53 over the years 1921-27. Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943-44 (1927).
11. A later Warren study, based on the years 1889-1918, found that of the 422 Supreme Court cases involving Fourteenth Amendment due process or equal protection challenges during that period, in only 53 did the Court strike down the challenged regulation. Of the 53, only 14 concerned legislation affecting the general rights of individuals. CHARLES WARREN, THE SUPREME COURT IN AMERICAN HISTORY 741 (rev. ed. 1928). But this study does not include the 1920s, the decade when the Court was most prone to strike down social legislation on Fourteenth Amendment grounds. See, e.g., DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986 at 133-34 (1990); ALPHEUS THOMAS MASON, THE SUPREME COURT: FROM TAFT TO WARREN 70-71 (1968) (noting the Court's increased activism during the 1920s). However, it is doubtful whether the Court's 1920s activism would have changed Warren's conclusions much. The reason for such doubt is that the increase in the number of laws invalidated on substantive due process grounds during the 1920s, while significant, probably would not have greatly affected his overall numbers. A 1927 study limited to due process challenges to exercises of the police power suggests as much. The study found that the Supreme Court struck down six of 98 such laws during the period 1868-1912 and seven of 97 during the years 1913-20, but only 15 of 53 over the years 1921-27. Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943-44 (1927).
12. A later Warren study, based on the years 1889-1918, found that of the 422 Supreme Court cases involving Fourteenth Amendment due process or equal protection challenges during that period, in only 53 did the Court strike down the challenged regulation. Of the 53, only 14 concerned legislation affecting the general rights of individuals. CHARLES WARREN, THE SUPREME COURT IN AMERICAN HISTORY 741 (rev. ed. 1928). But this study does not include the 1920s, the decade when the Court was most prone to strike down social legislation on Fourteenth Amendment grounds. See, e.g., DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986 at 133-34 (1990); ALPHEUS THOMAS MASON, THE SUPREME COURT: FROM TAFT TO WARREN 70-71 (1968) (noting the Court's increased activism during the 1920s). However, it is doubtful whether the Court's 1920s activism would have changed Warren's conclusions much. The reason for such doubt is that the increase in the number of laws invalidated on substantive due process grounds during the 1920s, while significant, probably would not have greatly affected his overall numbers. A 1927 study limited to due process challenges to exercises of the police power suggests as much. The study found that the Supreme Court struck down six of 98 such laws during the period 1868-1912 and seven of 97 during the years 1913-20, but only 15 of 53 over the years 1921-27. Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARV. L. REV. 943-44 (1927).
13. In this article, substantive due process means courts' use of the Fifth and Fourteenth Amendments' due process clauses to assess the constitutionality of substantive government action. Often, but not always, this assessment is conducted through some kind of means-ends analysis. Of course, a successful substantive due process claim also requires that the challenged government action deprive someone of life, liberty, or property; but finding such a deprivation rarely was a problem in the cases we shall consider. As we shall see, finally, the deprivation in question need not have involved, and in fact usually did not involve, freedom of contract. See infra notes 39-42 and accompanying text.
14. I explain my choice of these particular years at infra notes 68-71 and accompanying text.
15. E.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 567 (2d ed. 1988).
16. See generally, GERALD GUNTHER, CONSTITUTIONAL LAW 437-39, 444-57 (12th ed. 1991); ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 153-57 (1960); JOHN E. NOWAK ET AL., CONSTITUTIONAL LAW 340-50 (3d ed. 1986); BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 110-55 (1980); TRIBE, supra note 11, at 567-86; Michael J. Phillips, Another Look at Economic Substantive Due Process, 1987 WIS. L. REV. 265, 270-82.
17. See generally, GERALD GUNTHER, CONSTITUTIONAL LAW 437-39, 444-57 (12th ed. 1991); ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 153-57 (1960); JOHN E. NOWAK ET AL., CONSTITUTIONAL LAW 340-50 (3d ed. 1986); BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 110-55 (1980); TRIBE, supra note 11, at 567-86; Michael J. Phillips, Another Look at Economic Substantive Due Process, 1987 WIS. L. REV. 265, 270-82.
18. See generally, GERALD GUNTHER, CONSTITUTIONAL LAW 437-39, 444-57 (12th ed. 1991); ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 153-57 (1960); JOHN E. NOWAK ET AL., CONSTITUTIONAL LAW 340-50 (3d ed. 1986); BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 110-55 (1980); TRIBE, supra note 11, at 567-86; Michael J. Phillips, Another Look at Economic Substantive Due Process, 1987 WIS. L. REV. 265, 270-82.
19. See generally, GERALD GUNTHER, CONSTITUTIONAL LAW 437-39, 444-57 (12th ed. 1991); ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 153-57 (1960); JOHN E. NOWAK ET AL., CONSTITUTIONAL LAW 340-50 (3d ed. 1986); BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 110-55 (1980); TRIBE, supra note 11, at 567-86; Michael J. Phillips, Another Look at Economic Substantive Due Process, 1987 WIS. L. REV. 265, 270-82.
20. See generally, GERALD GUNTHER, CONSTITUTIONAL LAW 437-39, 444-57 (12th ed. 1991); ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 153-57 (1960); JOHN E. NOWAK ET AL., CONSTITUTIONAL LAW 340-50 (3d ed. 1986); BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 110-55 (1980); TRIBE, supra note 11, at 567-86; Michael J. Phillips, Another Look at Economic Substantive Due Process, 1987 WIS. L. REV. 265, 270-82.
21. See generally, GERALD GUNTHER, CONSTITUTIONAL LAW 437-39, 444-57 (12th ed. 1991); ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 153-57 (1960); JOHN E. NOWAK ET AL., CONSTITUTIONAL LAW 340-50 (3d ed. 1986); BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 110-55 (1980); TRIBE, supra note 11, at 567-86; Michael J. Phillips, Another Look at Economic Substantive Due Process, 1987 WIS. L. REV. 265, 270-82.
22. See, e.g., GUNTHER, supra note 12, at 433-39. For other, sometimes contrasting, accounts of substantive due process's evolution in the Supreme Court after the Civil War, see CURRIE, supra note 8, at 41-47; ELY, supra note 7, at 86-91; BENJAMIN F. WRIGHT, THE GROWTH OF AMERICAN CONSTITUTIONAL LAW 95-105 (1946).
23. 165 U.S. 578, 593 (1897) (striking down a state law forbidding procurement of marine insurance on in-state property with any insurer that had failed to comply with state law).
24. Id. at 590-93. Receiving less attention today, however, is an 1898 case whose practical impact was considerably greater than that of Allgeyer. Smyth v. Ames, 169 U.S. 466, 526 (1898) established the courts' power to use due process to review the substantive fairness of railroad rates and rates for other regulated industries. For more on Smyth and its numerous progeny, see infra notes 77-90 and accompanying text.
25. 198 U.S. 45 (1905).
26. 169 U.S. 366, 395-97 (1898) (upholding a state maximum hours law for workers in underground mines).
27. 208 U.S. 412, 422-23 (1908) (upholding a state maximum hours law for women).
28. 243 U.S. 426, 438 (1917) (upholding a state maximum hours law for factory workers).
29. 208 U.S. 161, 179-80 (1908) (striking down a federal law that forbade the firing of railroad workers due to their union affiliation), overruled in part by Phelps Dodge Co. v. N.L.R.B., 313 U.S. 177 (1941).
30. 236 U.S. 1, 26 (1915) (striking down a state law that forbade "yellow dog" contracts conditioning an employee's employment on his not becoming or remaining a union member), overruled in part by Phelps Dodge Co., 313 U.S. 177 (1941).
31. See Brown, supra note 8, at 944-45.
32. 261 U.S. 525, 559, 562 (1923), overruled in part by West Coast Hotel v. Parrish, 300 U.S. 379 (1937). The law struck down in Adkins also covered children. Adkins, 261 U.S. at 539-40.
33. 273 U.S. 418, 445 (1927) (invalidating a state law regulating the resale price of theater tickets), overruled in pan by Olsen v. Nebraska ex rel. W. Reference & Bond Ass'n, 313 U.S. 236 (1941).
34. 277 U.S. 350, 357 (1928) (invalidating a state law regulating the fees charged by employment agencies), overruled in part by Olsen, 313 U.S. 236 (1941).
35. 278 U.S. 235, 245 (1928) (striking down a state law fixing the price of gasoline), overruled in part by Olsen v. Nebraska ex rel. W. Reference & Bond Ass'n, 313 U.S. 236 (1941).
36. Additionally, these cases indirectly relied upon another much discussed due process decision that preceded the Lochner era: Munn v. Illinois, 94 U.S. 113 (1876). Generally, Munn established that the states have considerable power to regulate businesses "affected with a public interest." Munn, 94 U.S. at 130. The trio of cases discussed here might be said to have pursued a negative implication of Munn: that for businesses not so affected, the regulation of prices is unconstitutional. See, e.g., Tyson, 273 U.S. at 430.
37. 262 U.S. 390, 402-03 (1923) (striking down a state law that forbade both the teaching of any subject in any language other than English, and the teaching of any such language as a language until after the eighth grade).
38. 268 U.S. 510, 534-35 (1925) (striking down a state law which required that all children between 8 and 16 attend a public school).
39. 264 U.S. 504, 517 (1924) (striking down a statute which regulated the weights at which bread loaves could be sold).
40. 270 U.S. 402, 409-15 (1926) (overturning a law that forbade the use of "shoddy," or various torn or cut up fabrics, in beds, pillows, furniture, and other goods).
41. 285 U.S. 262, 278-79 (1932) (striking down a state law restricting entry to the ice industry).
42. 278 U.S. 105, 113-14 (1928) (striking down a state law requiring that drug stores be wholly owned by a licensed pharmacist or pharmacists), overruled by North Dakota State Bd. of Pharmacy v. Snyder's Drug Stores Inc., 414 U.S. 156 (1973).
43. 291 U.S. 502, 539 (1934) (upholding a state law authorizing the fixing of milk prices by a state body).
44. See Nebbia, 291 U.S. at 533-37.
45. 300 U.S. 379, 398-400 (1937).
46. West Coast Hotel, 300 U.S. at 398-400. A year earlier, however, a divided Court had upheld a minimum wage law for women. See Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936), overruled in part by Olsen v. Nebraska ex rel. W. Reference & Bond Ass'n, 313 U.S. 236 (1941).
47. E.g., Robert G. McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 SUP. CT. REV. 34, 36-37. However, the somewhat aggressive Supreme Court review of railroad and utility rate regulation did not die until Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 619 (1944). RICHARD J. PIERCE & ERNEST GELLHORN, REGULATED INDUSTRIES IN A NUTSHELL 98-99 (1994).
48. E.g., Robert G. McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 SUP. CT. REV. 34, 36-37. However, the somewhat aggressive Supreme Court review of railroad and utility rate regulation did not die until Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 619 (1944). RICHARD J. PIERCE & ERNEST GELLHORN, REGULATED INDUSTRIES IN A NUTSHELL 98-99 (1994).
49. See Learned Hand, Due Process of Law and the Eight-Hour Day, 21 HARV. L. REV. 495, 495 (1908) ("'[L]iberty' gauranteed by the Fourteenth Amendment has come to mean the right to pursue one's individual purposes as one likes and to make contracts for that end. . . . [S]o to construe the term 'liberty' is entirely to disregard the whole juristic history of the word."). See generally Roscoe Pound, Liberty of Contract, 18 YALE L.J. 454 (1909).
50. See Learned Hand, Due Process of Law and the Eight-Hour Day, 21 HARV. L. REV. 495, 495 (1908) ("'[L]iberty' gauranteed by the Fourteenth Amendment has come to mean the right to pursue one's individual purposes as one likes and to make contracts for that end. . . . [S]o to construe the term 'liberty' is entirely to disregard the whole juristic history of the word."). See generally Roscoe Pound, Liberty of Contract, 18 YALE L.J. 454 (1909).
51. Roe v. Wade, 410 U.S. 113, 153 (1973) (holding that the constitutional right of privacy is founded in the Fourteenth Amendment's concept of personal liberty).
52. See Michael J. Phillips, How Many Times Was Lochner-Era Substantive Due Process Effective? 48 MERCER L. REV. 1049, 1086 n.197 (1997) (concluding tentatively that only 11 such cases exist). By "explicitly" I mean using the words "liberty of contract" or their like. In doing the research for the present article, however, I frequently came upon freedom of contract claims in the cases rejecting due process attacks on government regulation.
53. For example, one might naturally assume that cases like Williams v. Standard Oil Co., 278 U.S. 235 (1929), which struck down a state law regulating the price of gasoline, id. at 245, made freedom of contract the protected right. In fact, however, the statute was successfully attacked on the theory that it deprived the claimant of property. Id. at 239. Although the Williams court did not elaborate, perhaps this could be justified on the theory that ownership of gasoline includes the freedom to sell it at a price of one's choosing. See Tyson & Bros. v. Banton, 273 U.S. 418, 429 (1927) (noting that an owner's right to fix a price for sale of property is an attribute of the property).
54. See RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 269-82 (1977); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 14-21 (1980); see also ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 43-49 (1990) (attacking Lochner-era substantive due process on interpretivist grounds).
55. See RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 269-82 (1977); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 14-21 (1980); see also ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 43-49 (1990) (attacking Lochner-era substantive due process on interpretivist grounds).
56. See RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 269-82 (1977); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 14-21 (1980); see also ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 43-49 (1990) (attacking Lochner-era substantive due process on interpretivist grounds).
57. ELY, supra note 43, at 18.
58. See, e.g., BORK, supra note 43, at 44-45 (attacking Lochner on much the same basis).
59. Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 LAW & HIST. REV. 249, 250 (1987).
60. E.g., Griswold v. Connecticut, 381 U.S. 479, 482 (1965); Ferguson v. Skrupa, 372 U.S. 726, 729 (1963).
61. E.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 590 (1980) (Rehnquist, J., dissenting).
62. HADLEY ARKES, THE RETURN OF GEORGE SUTHERLAND: RESTORING A JURISPRUDENCE OF NATURAL RIGHTS 28 (1994).
63. See GUNTHER, supra note 12, at 491-583 (putting a discussion of the privacy cases inside a chapter entitled "Substantive Due Process" and introducing it with a heading that begins "The Revival of Substantive Due Process"). For a discussion of some little-known contemporary applications of substantive due process, see Michael J. Phillips, The Nonprivacy Applications of Substantive Due Process, 21 RUTGERS L.J. 537, 542-77 (1990).
64. See Phillips, supra note 50, at 544-46 and cases cited therein. But see BMW of N. Am. v. Gore, 116 S. Ct. 1589 (1996) (holding a grossly excessive punitive damages award unconstitutional). This may be the first case since the 1930s to strike down government action involving an economic matter on substantive due process grounds). See Phillips, supra note 41, at 1051-52 n.6.
65. TRIBE, supra note 12, at 1374.
66. For another statement of what is essentially the same view, see HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE 63-64, 76-86, 147-60 (paperback ed. 1993). See also James L. Kainen, The Historical Framework for Reviving Constitutional Protection for Property and Contract Rights, 79 CORNELL L. REV. 87, 92 (1993) (capsulizing but not necessarily endorsing the same position).
67. For another statement of what is essentially the same view, see HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE 63-64, 76-86, 147-60 (paperback ed. 1993). See also James L. Kainen, The Historical Framework for Reviving Constitutional Protection for Property and Contract Rights, 79 CORNELL L. REV. 87, 92 (1993) (capsulizing but not necessarily endorsing the same position).
68. See, e.g., WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT 164-65 (1995); MELVIN I. UROFSKY, A MARCH OF LIBERTY: A CONSTITUTIONAL HISTORY OF THE UNITED STATES 503 (1988).
69. See, e.g., WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT 164-65 (1995); MELVIN I. UROFSKY, A MARCH OF LIBERTY: A CONSTITUTIONAL HISTORY OF THE UNITED STATES 503 (1988).
70. WILLIAM M. WIECEK, LIBERTY UNDER LAW: THE SUPREME COURT IN AMERICAN LIFE 126 (1988).
71. JOEL FRANCIS PASCHAL, MR. JUSTICE SUTHERLAND: A MAN AGAINST THE STATE 241 (1951).
72. See, e.g., ARCHIBALD COX, THE COURT AND THE CONSTITUTION 135-37 (1987) (suggesting that Lochnerian decisions flowed partly from the Justices' attachment to the simpler world of their youth, a world in which laissez-faire made sense); ARTHUR SELWYN MILLER, THE MODERN CORPORATE STATE 46 (1976) (quoting Justice Samuel F. Miller to the effect that years of serving as counsel for the railroads and for other forms of associated capital naturally biased judges to decide in their favor); UROFSKY, supra note 54, at 502 (asserting that the old Court's conservative justices were "intellectual prisoners" of outdated formalistic, laissez-faire ideas).
73. See, e.g., ARCHIBALD COX, THE COURT AND THE CONSTITUTION 135-37 (1987) (suggesting that Lochnerian decisions flowed partly from the Justices' attachment to the simpler world of their youth, a world in which laissez-faire made sense); ARTHUR SELWYN MILLER, THE MODERN CORPORATE STATE 46 (1976) (quoting Justice Samuel F. Miller to the effect that years of serving as counsel for the railroads and for other forms of associated capital naturally biased judges to decide in their favor); UROFSKY, supra note 54, at 502 (asserting that the old Court's conservative justices were "intellectual prisoners" of outdated formalistic, laissez-faire ideas).
74. MASON, supra note 8, at 40-41; see also UROFSKY, supra note 54, at 631 (noting that during the 1920s the Court "did all it could to placate industry").
75. ROBERT G. MCCLOSKEY, AMERICAN CONSERVATISM IN THE AGE OF ENTERPRISE, 1865-1910, at 84 (1951).
76. COX, supra note 57, at 135.
77. See, e.g., MILLER, supra note 57, at 45-46 (positing that Lochner Court Justices knew what they were doing and did not care).
78. Mary Cornelia Porter, That Commerce Shall be Free: A New Look at the Old Laissez-Faire Court, 1976 SUP. CT. REV. 135, 138-40 & nn.10-30; see also GILLMAN, supra note 53, at 3-4, 207-08 n.8 (providing other such sources).
79. "The substantive due process/freedom of contract theory reached its apogee in 1905 in Lochner v. New York . . . , and for the next thirty years provided the rationale for the Court to strike down nearly two hundred regulations." UROFSKY, supra note 54, at 501. See also GÜNTHER, supra note 12, at 445 (discussing nearly 200 regulations struck down during the Lochner era); MCCLOSKEY, supra note 12, at 101 (citing an observer who estimated that 184 decisions between 1899 and 1937 invalidated state laws on the basis of either the due process or the equal protection clauses); TRIBE, supra note 11, at 567 n.2 (estimating that the Court invalidated state or federal regulations wholly or partially on due process grounds 197 times between 1899 and 1937). Except for UROFSKY, these sources do not explicitly say that the 200 or so invalidations they mention proceeded on substantive due process grounds. Because they occur within discussions of Lochner era substantive due process, however, they are most naturally read as referring to cases of that kind. For more on such claims and their genesis, see Phillips, supra note 41, at 1056-59.
80. See generally Phillips, supra note 41, at 1060-80. In that article, I found approximately 100 decisions that I characterized as peripheral, penumbral, or borderline applications of substantive due process. See id. at 1080. These cases used due process to advance values associated with other constitutional provisions. Examples include the early incorporation cases (most of which involved the First Amendment), the many decisions striking down rate regulations and other orders imposed on railroads and other businesses affected with a public interest (which mostly involved values proper to the Takings Clause), and a host of tax cases involving federalism and burden-on-commerce concerns. The article also identified 55 cases that it considered "core" applications of substantive due process. Id. at 1080. These decisions applied values - mainly, the command that government action not be arbitrary or that it not offend rights of special importance - that have no evident home other than due process. Examples include cases involving land use, civil remedies, taxation, price regulation, entry restrictions, other miscellaneous economic regulations, employment, and personal rights. The present article mainly discusses the second group of cases, while including decisions in which the Court rejected the substantive due process challenge. But it also includes two categories from the "peripheral" group: the cases involving rate decisions and other sovereign commands directed at regulated industries.
81. Washington v. Glucksberg, 117 S. Ct. 2258, 2279 (1997) (Souter, J., concurring).
82. E.g., Lochner v. New York, 198 U.S. 45, 57 (1905) (stating that the challenged law must have a direct relation to an appropriate and legitimate end).
83. E.g., Glucksberg, 117 S. Ct. at 2268 (stating that laws infringing upon fundamental liberty interests must be narrowly tailored to serve a compelling state interest).
84. The main such cases are: Lake Shore & Mich. S. Ry. v. Smith, 173 U.S. 684, 691-99 (1899) (using due process to strike down a state law ordering a railroad to sell certain tickets for a set fee) overruled in part by Pennsylvania R.R. v. Towers, 245 U.S. 6 (1917); Smyth v. Ames, 169 U.S. 466, 522-50 (1898) (striking down railroad rates on combined due process/takings grounds) overruled by Federal Power Comm'n v. Natural Gas Pipeline, 315 U.S. 575 (1942) (narrowing Smyth to the point that it was no longer good law); Allgeyer v. Louisiana, 165 U.S. 578, 589-93 (1897) (upholding state statute forbidding obtaining of marine insurance on in-state property from any carrier not fully complying with state law). See also Chicago, Milwaukee, & St. Paul Ry. v. Minnesota ex rel. R.R. & Warehouse Comm'n, 134 U.S. 418, 456-58 (1890); Phillips, supra note 41, at 1050 n.4, 1052 n.6 (discussing Chicago, Milwaukee, & St. Paul Ry); cf. Duluth & Iron Range R.R. v. St. Louis County, 179 U.S. 302, 304-05 (1900) (holding state law that deprived railroad of consideration due under an earlier grant did not violate Contract Clause due to reserved right to amend, but did offend equal protection and due process); Dewey v. Des Moines, 173 U.S. 193, 196-204 (1899) (striking down on due process grounds a tax assessment against an out-of-state party owning in-state property, where the assessment was for the amount by which the liability exceeded the amount realized from the in-state property's sale); Norwood v. Baker, 172 U.S. 269, 275-97 (1898) (assessing costs of property's condemnation for road on a landowner whose land the road crossed violates principle that the land must be specially benefitted by the activity the assessment funds).
85. The most important successful post-1932 substantive due process challenges are: Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 603-18 (1936) (striking down a state minimum wage law for women); Great N. Ry. v. Weeks, 297 U.S. 135, 145-53 (1936) (using pre-Depression numbers to value claimant's property for tax purposes violates due process); Railroad Retirement Bd. v. Alton R.R., 295 U.S. 330, 346-61 (1935) (striking down provisions of the Railroad Retirement Act on what are ostensibly Commerce Clause grounds, but in reality are substantive due process grounds); Louis K. Liggett Co. v. Lee, 288 U.S. 517, 533-36 (1933) (striking down portion of chain store tax that imposed an additional tax on chains, with stores in different counties because it violates due process). Cf. Thompson v. Consolidated Gas Utils. Corp., 300 U.S. 55, 68-81 (1937) (holding that a gas proration order limiting production of a utility's wells violates due process); Treigle v. Acme Homestead Ass'n, 297 U.S. 189, 194-98 (1936) (holding that a state law changing business's obligation to maintain a fund to pay shareholders violates due process and the Contract Clause); Panhandle E. Pipe Line Co. v. State Highway Comm'n, 294 U.S. 613, 618-23 (1935) (striking down on combined due process/takings grounds highway commission order making pipeline company change its transmission lines without compensation); Johnson Oil Ref. Co. v. Oklahoma ex rel. Mitchell, 290 U.S. 158, 161-63 (1933) (holding that a tax on out-of-state railroad tank cars violates due process). In addition, the Court struck down several state utility rate decisions after 1932. See West Ohio Gas Co. v. Public Utils. Comm'n, 294 U.S. 79, 80-83 (1935); West v. Chesapeake & Potomac Tel. Co., 295 U.S. 662, 668-80 (1935); West Ohio Gas Co. v. Public Utils. Comm'n, 294 U.S. 63, 67-77 (1935); Columbus Gas & Fuel Co. v. Public Utils. Comm'n, 292 U.S. 398, 404-14 (1934); Central Ky. Natural Gas Co. v. Railroad Comm'n, 290 U.S. 264, 275 (1933).
86. See supra note 9 and accompanying text.
87. Wayne McCormack, Economic Substantive Due Process and the Right of Livelihood, 82 KY. L.J. 397, 406 (1993) (explaining that no member of the Court used the phrase "procedural due process" until 1934 or the phrase "substantive due process" until 1948). Of course, the Court granted many procedural due process claims during the Lochner era. See Phillips, supra note 41, at 1062-63 & n.60.
88. E.g., Powell v. Alabama, 287 U.S. 45, 63-73 (1932) (involving the Sixth Amendment right to counsel); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707-23 (1931) (involving the First Amendment freedom of the press); Stromberg v. California, 283 U.S. 359, 368-70 (1931) (involving the First Amendment freedom of speech). For several other such cases, see Phillips, supra note 41, at 1065 n.68.
89. E.g., Coombes v. Getz, 285 U.S. 434, 441-48 (1932); Missouri, Kan. & Tex. Ry. Co. v. Oklahoma, 271 U.S. 303, 306-10 (1926). See Phillips, supra note 41, at 1066 n.70 (providing a fuller list of such cases).
90. E.g., Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203, 216-20 (1925) (striking down a state excise tax on foreign corporations), overruled by Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977); West v. Kansas Natural Gas Co., 221 U.S. 229, 249-62 (1911) (striking down a state law forbidding foreign corporations from building pipelines across highways and using them to transport natural gas outside the state); Phillips, supra note 41, at 1067 n.74 (presenting additional cases on the blending of due process and burden-on-commerce theories).
91. See Delaware, Lackawanna, & W. R.R. v. Town of Morristown, 276 U.S. 182, 193-95 (1928); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 412-16 (1922); Phillips, supra note 41, at 1065 n.65.
92. See infra notes 116-18 and accompanying text for additional examples of such cases.
93. 94 U.S. 113 (1876).
94. Munn, 94 U.S. at 135-36.
95. See id. at 125-36. For further discussion of Munn and the affected-with-a-public-interest doctrine, see Walton H. Hamilton, Affectation with Public Interest, 39 YALE L.J. 1089 (1930); Breck P. McAllister, Lord Hale and Business Affected with a Public Interest, 43 HARV. L. REV. 759 (1930). Nebbia v. New York, 291 U.S. 502, 531-39 (1934), is generally regarded as marking the doctrine's demise. See PIERCE & GELLHORN, supra note 38, at 82-83.
96. See id. at 125-36. For further discussion of Munn and the affected-with-a-public-interest doctrine, see Walton H. Hamilton, Affectation with Public Interest, 39 YALE L.J. 1089 (1930); Breck P. McAllister, Lord Hale and Business Affected with a Public Interest, 43 HARV. L. REV. 759 (1930). Nebbia v. New York, 291 U.S. 502, 531-39 (1934), is generally regarded as marking the doctrine's demise. See PIERCE & GELLHORN, supra note 38, at 82-83.
97. WRIGHT, supra note 13, at 156. See also Charles Wolff Packing Co. v. Court of Indus. Relations, 262 U.S. 522, 534-40 (1923) (containing Chief Justice Taft's attempt to define the classes of businesses affected with a public interest).
98. See Stephen A. Siegel, Understanding the Lochner Era: Lessons from the Controversy over Railroad and Utility Rate Regulation,70 VA. L. REV. 187, 199-223 (1984).
99. For example, three 1890s decisions quoted with approval Railroad Comm'n Cases, 116 U.S. 307, 331 (1886), in which the Court declared the states' inability to "do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law." Covington & L. Turnpike Rd. Co. v. Sandford, 164 U.S. 578, 593 (1896); Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 398 (1894); Chicago, Milwaukee, & St. Paul Ry. v. Minnesota, 134 U.S. 418, 456 (1890). In Smyth v. Ames, 169 U.S. 466 (1898), discussed below, one of the Court's inquiries was whether the challenged rates were "so unreasonably low as to deprive the carrier of its property without such compensation as the Constitution secures, and therefore without due process of law." Id. at 526. In 1897, moreover, the Court explicitly made it a violation of Fourteenth Amendment due process for a state to take property without just compensation. See Chicago, Burlington & Quincy R.R. v. Chicago, 166 U.S. 226, 235-41 (1897), as interpreted by ELY, supra note 7, at 91. Whether this amounts to the Takings Clause's incorporation within Fourteenth Amendment due process is unclear. On the conceptual confusion between substantive due process and the Takings Clause around this time, see JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910, at 104 (1995) [hereinafter ELY, CHIEF JUSTICESHIP OF MELVILLE FULLER].
100. 169 U.S. 466, 522-50 (1898).
101. Ames, 169 U.S. at 522-50.
102. The style of review set in motion by Smyth v. Ames is generally regarded as having ended with Federal Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591 (1944). See, e.g., ELY, supra note 7, at 130; PIERCE & GELLHORN, supra note 38, at 98-99.
103. CHRISTOPHER WOLFE, THE RISE OF MODERN JUDICIAL REVIEW 151 (1986).
104. "The established principle is that . . . the due process clauses . . . safeguard private property against a taking for public use without just compensation. . . . [W]here by legislation prescribing rates or charges the use of the property is taken, just compensation assured by these constitutional provisions is a reasonable rate of return upon that value." West v. Chesapeake & Potomac Tel. Co., 295 U.S. 662, 671 (1935).
105. See, e.g., PIERCE & GELLHORN, supra note 38, at 95-98.
106. Railroad Comm'n v. Maxcy, 282 U.S. 249, 250-51 (1931) (water rates); United Rys. & Elec. Co. v. West, 280 U.S. 234, 249-54 (1930) (street railway rates); Denny v. Pacific Tel. & Tel. Co. 276 U.S. 97, 101-04 (1928) (telephone rates); Chicago, Milwaukee & St. Paul Ry. Co. v. Public Utils. Comm'n, 274 U.S. 344, 350-52 (1927) (railroad rates); Ottinger v. Brooklyn Union Gas Co., 272 U.S. 579, 580-81 (1926) (gas rates); McCardle v. Indianapolis Water Co., 272 U.S. 400, 410-21 (1926) (water rates); Patterson v. Mobile Gas Co., 271 U.S. 131, 134-35 (1926) (gas rates); Board of Pub. Util. Comm'rs v. New York Tel. Co., 271 U.S. 23, 31-32 (1926) (telephone rates); Smith v. Illinois Bell Tel. Co., 270 U.S. 587, 590-92 (1926) (telephone rates); Banton v. Belt Line Ry., 268 U.S. 413, 419-25 (1925) (street railway fares); Northern Pac. Ry. v. Department of Pub. Works, 268 U.S. 39, 42-45 (1925) (railroad rates); Ohio Utils. Co. v. Public Utils. Comm'n, 267 U.S. 359, 362-64 (1925) (railroad rates); Pacific Gas & Elec. Co. v. City & County of San Francisco, 265 U.S. 403, 405-16 (1924) (gas rights); Bluefield Waterworks & Improvement Co. v. Public Serv. Comm'n, 262 U.S. 679, 684-95 (1923) (water rights); Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm'n, 262 U.S. 276, 287-89 (1923) (telephone rates); Prendergast v. New York Tel. Co., 262 U.S. 43, 50-51 (1923) (telephone rates); City of Paducah v. Paducah Ry., 261 U.S. 267, 275 (1923) (electric street car fares); City of Houston v. Southwestern Bell Tel. Co., 259 U.S. 318, 321-25 (1922) (telephone rates); Newton v. Consolidated Gas Co., 258 U.S. 165, 174-78 (1922) (gas rates); Vandalia R.R. v. Schnull, 255 U.S. 113, 118-22 (1921) (railroad rates); Groesbeck v. Duluth, S. Shore & Atl. Ry., 250 U.S. 607, 611-15 (1919) (railroad rates); Detroit United Ry., v. City of Detroit, 248 U.S. 429, 434-37 (1919) (street railway fares); City & County of Denver v. Denver Union Water Co., 246 U.S. 178, 185-94 (1919) (water rates); Rowland v. Boyle, 244 U.S. 106, 107-11 (1917) (railroad rates); Norfolk & W. Ry. v. Conley, 236 U.S. 605, 608-14 (1915) (railroad rates); Northern Pac. Ry. v. North Dakota ex rel. McCue, 236 U.S. 585, 595-605 (1915) (railroad rates); San Joaquin & King's River Canal & Irrigation Co. v. County of Stanislaus, 233 U.S. 454, 458-61 (1914) (water rates); The Missouri Rate Cases, 230 U.S. 474, 507-09 (1913) (railroad rates); The Minnesota Rate Cases, 230 U.S. 352, 433-73 (1913) (railroad rates); see also Chicago, Rock Island, & Pac. Ry. v. United States, 284 U.S. 80, 96-100 (1931) (striking down ICC order regarding charges for switching cars between railroads); City of San Antonio v. San Antonio Pub. Serv. Co., 255 U.S. 547, 555-58 (1921) (assuming confiscatory nature of rates and holding that government and utility had not made contract on this subject); Southern Iowa Elec. Co. v. City of Chariton, 255 U.S. 539, 542 (1921) (stating that confiscatory rates "cannot be enforced unless they are secured by a contract obligation"). For some additional rate cases occuring before and after the 1902-1932 period, see supra note 69.
107. Aetna Ins. Co. v. Hyde, 275 U.S. 440, 446-48 (1928) (insurance rates); Lincoln Gas & Elec. Light Co. v. City of Lincoln, 250 U.S. 256, 266-69 (1919) (gas rates); Pennsylvania R.R. v. Towers, 245 U.S. 6, 8-17 (1917) (railroad rates); Darnell v. Edwards, 244 U.S. 564, 568-70 (1917) (railroad rates); Newark Natural Gas & Fuel Co. v. City of Newark, 242 U.S. 405, 407-09 (1917) (gas rates); Des Moines Gas Co. v. City of Des Moines, 238 U.S. 153, 157, 162-73 (1915) (gas rates); Wood v. Vandalia R.R., 231 U.S. 1, 3-8 (1913) (railroad rates); Mayor & Alderman of Knoxville v. Knoxville Water Co., 212 U.S. 1, 6-7, 15-19 (1909) (water rates); Seaboard Air Line Ry. v. Florida ex rel. Ellis, 203 U.S. 261, 268-70 (1906) (railroad rates); Atlantic Coast Line R.R. v. Florida ex rel. Ellis, 203 U.S. 256, 259-60 (1906) (railroad rates); County of Stanislaus v. San Joaquin & King's River Canal & Irrigation Co., 192 U.S. 201, 213-17 (1904) (water rates); San Diego Land & Town Co. v. Jasper, 189 U.S. 439, 441-47 (1903) (water rates); Minneapolis & St. Louis R.R. v. Minnesota, 186 U.S. 257, 264-69 (1902) (railroad rates); see also Oklahoma Natural Gas Co. v. Oklahoma, 258 U.S. 234, 237-39 (1922) (holding commission order reducing gas bills due to gas company's poor service does not violate due process); Producers' Transp. Co. v. Railroad Comm'n, 251 U.S. 228, 229-32 (1920) (holding oil pipeline is devoted to public use and hence state can regulate its rates); Union Dry Goods Co. v. Georgia Pub. Serv. Corp., 248 U.S. 372, 374-77 (1919) (rejecting a consumer's challenge to a commission order raising electric rates); cf. The New England Div. Case, 261 U.S. 184, 195-96 (1923) (upholding ICC regulation of railroad rates); O'Keefe v. United States, 240 U.S. 294, 304 (1916) (upholding ICC regulation of railroad rates).
108. 217 U.S. 196 (1910).
109. Missouri Pac. Ry., 217 U.S. at 205-08.
110. For a brief summary of the many cases in which Holmes participated in Lochner Court decisions striking down government action on substantive due process grounds, see Phillips, supra note 41, at 1083-86. On Holmes's progressive reputation, see G. Edward White, The Canonization of Holmes and Brandeis: Epistemology and Judicial Reputations, 70 N.Y.U. L. REV. 576 (1995).
111. Missouri Pac. Ry., 217 U.S. at 206.
112. Id.
113. Id. at 207.
114. Chicago, St. Paul, Minneapolis & Omaha Ry. v. Holmberg, 282 U.S. 162, 166-67 (1930) (striking down order that railroad install underground pass to connect two portions of farmer's farm); Great N. Ry. v. Cahill. 253 U.S. 71, 73-77 (1920) (striking down order for railroad to install scales at its stockyard); Brooks-Scanlon Co. v. Railroad Comm'n, 251 U.S. 396, 398-400 (1920) (striking down order to operate narrow-gauge railroad at a loss); City of Los Angeles v. Los Angeles Gas & Elec. Corp., 251 U.S. 32, 37-40 (1919) (striking down order that electric company remove its poles and property so that city could build its own system); Mississippi R.R. Comm'n v. Mobile & Ohio R.R., 244 U.S. 388, 393-96 (1917) (striking down order that financially distressed railroad restore six passenger trains to service); Chicago, Milwaukee & St. Paul R.R. Co. v. Wisconsin, 238 U.S. 491, 497-502 (1915) (striking down statute requiring that railroad not let down upper berth in sleeping cars before berth actually sold); Great N. Ry. v. Minnesota ex rel. R.R. & Warehouse Comm'n, 238 U.S. 340, 345-47 (1915) (striking down order for railroad to install scale at its stockyards); South Covington & Cincinnati St. Ry. v. City of Covington, 235 U.S. 537, 548-49 (1915) (striking down regulation that temperature of railroad cars never should fall below 50 degrees); Washington ex rel. Oregon R.R. & Navigation v. Fairchild, 224 U.S. 510, 527-33 (1912) (striking down order that tracks of competing railroads be connected at various points); Louisville & Nashville R.R. v. Central Stock Yards Co., 212 U.S. 132, 143-45 (1909) (striking down constitutional provision compelling railroad to deliver cars to, and accept cars from, other railroads); Cleveland Elec. Ry. v. City of Cleveland, 204 U.S. 116, 142 (1907) (striking down compelled transfer of street railway's rails, poles, and appliances to another street railway after termination of first railway's franchise); see also Dobbins v. City of Los Angeles, 195 U.S. 223, 235-41 (1904) (striking down arbitrary ordinance forbidding construction of gas works that city previously granted company right to build). For one such case occurring after 1932, see Thompson v. Consolidated Gas Utils. Corp., 300 U.S. 55, 68-81 (1937).
115. Atchison, Topeka, & Santa Fe Ry. v. Railroad Comm'n, 283 U.S. 380, 394-97 (1931) (upholding state commission order requiring interstate railroads to build passenger station in Los Angeles); New York ex rel. Woodhaven Gaslight Co. v. Public Serv. Comm'n, 269 U.S. 244, 245-46, 248-49 (1925) (upholding commission order requiring gas company to extend its service to new territories); Western & Atl. R.R. v. Public Serv. Comm'n, 267 U.S. 493, 496-98 (1925) (upholding commission order requiring railroad to continue to furnish switching service to a shipper on an established industrial siding); Fort Smith Light & Traction Co. v. Bourland, 267 U.S. 330, 332-33 (1925) (upholding city commission's refusal to allow street railway to abandon part of one of its lines); United States v. New River Co., 265 U.S. 533, 542 (1924) (upholding ICC order regarding distribution of coal from mines by carriers); Norfolk & W. Ry. v. Public Serv. Comm'n, 265 U.S. 70, 74-75 (1924) (upholding commission order requiring railroad to furnish facilities for shippers, including a crossing, at a siding); Lake Erie & W. R.R. v. Public Utils. Comm'n, 249 U.S. 422, 424-25 (1919) (upholding commission order requiring railroad to restore a siding); Chicago & N.W. Ry. v. Ochs, 249 U.S. 416, 418-22 (1919) (upholding commission order requiring railroad to alter and extend a side track to a manufacturing plant); Chicago, Milwaukee & St. Paul Ry. v. Minneapolis Civic & Commerce Ass'n, 247 U.S. 490, 501-02 (1918) (upholding commission order that two railroads owning a third railroad charge shippers the same rates over the third railroad's tracks that they charge over their own tracks); New York ex rel. New York & Queens Gas Co. v. McCall, 245 U.S. 345, 348-51 (1917) (upholding commission order requiring gas company to extend its service area; procedural and substantive due process); Chesapeake & Ohio Ry. v. Public Serv. Comm'n, 242 U.S. 603, 606-08 (1917) (upholding order that railroad begin passenger service on a branch line); Phoenix Ry. Co. v. Geary, 239 U.S. 277, 280-83 (1915) (upholding commission order to railroad to double track a portion of its line); Michigan Cent. R.R. v. Michigan R.R. Comm'n, 236 U.S. 615, 630-34 (1915) (upholding commission order that two railroads physically connect their tracks); Wadley S. Ry. v. Georgia, 235 U.S. 651, 658-59 (1915) (upholding commission order requiring railroad to cease demanding prepayment from one carrier, but not from another); Chicago, Milwaukee & St. Paul Ry. v. Iowa, 233 U.S. 334, 344-45 (1914) (upholding commission order requiring railroad to accept coal cars from other railroads and transport them as directed); Grand Trunk Ry. v. Michigan R.R. Comm'n, 231 U.S. 457, 463-73 (1913) (upholding commission order that interstate railroads use their intracity tracks for the interchange of intrastate traffic); Missouri Pac. Ry. v. Kansas ex rel. Taylor, 216 U.S. 262, 273-83 (1910) (upholding commission order that railroad institute passenger service between two points); Atlantic Coast Line R.R. v. North Carolina Corp. Comm'n, 206 U.S. 1, 19-27 (1907) (upholding railroad commission order that railroad arrange through service between two points); Chicago, Burlington & Quincy Ry. v. Illinois ex rel. Drainage Comm'rs, 200 U.S. 561, 581-95 (1906) (upholding drainage commission order that railroad remove bridge over stream); New Orleans Gaslight Co. v. Drainage Comm'n, 197 U.S. 453, 460-62 (1905) (upholding drainage commission order that gas company change location of gas pipes to accommodate a new drainage system).
116. New Orleans Pub. Serv., Inc. v. City of New Orleans, 281 U.S. 682, 686-87 (1930) (upholding ordinance requiring street railway to remove viaduct and construct double tracks across railroad tracks); Nashville, Chattanooga & St Louis Ry. v. White, 278 U.S. 456, 458-60 (1929) (upholding ordinance requiring railway to keep a flagman on duty on every street crossed by its tracks); Sullivan v. City of Shreveport, 251 U.S. 169, 171-73 (1919) (upholding ordinance requiring that street cars be operated by a motor-man and a conductor); Pacific Gas & Elec. Co. v. City of Sacramento, 251 U.S. 22, 25-26 (1919) (upholding ordinance requiring street railway to sprinkle streets near its tracks); Denver & Rio Grande R.R. v. City & County of Denver, 250 U.S. 241, 243-45 (1919) (upholding ordinance requiring railroad to remove track crossing crowded city thoroughfare); Columbus Ry., Power & Light Co. v. City of Columbus, 249 U.S. 399, 407-14 (1919) (upholding ordinance requiring street railway to continue to operate at unremunerative rates for which it had previously contracted with city); Missouri Pac. Ry. v. City of Omaha, 235 U.S. 121, 127-31 (1914) (upholding ordinance requiring that railroad construct viaduct over streets); Atlantic Coast Line R.R. v. City of Goldsboro, 232 U.S. 548, 555-62 (1914) (upholding ordinance regulating trains and their tracks within a municipality); Chicago, Milwaukee & St. Paul Ry. v. City of Minneapolis, 232 U.S. 430, 437-42 (1914) (upholding city's condemnation of a portion of railroad right-of-way and compelling railroad to build a bridge over that portion at its own expense, without compensating railroad); Detroit United Ry. v. City of Detroit, 229 U.S. 39, 45-46 (1913) (upholding ordinance compelling street railway to remove its tracks and property from the streets upon city's failure to renew franchise); West Chicago St. R.R. v. Illinois ex rel. City of Chicago, 201 U.S. 506, 522-27 (1906) (upholding ordinance requiring street railway to lower tunnel beneath a river).
117. Missouri Pac. R.R. v. Norwood, 283 U.S. 249, 254-56 (1931) (upholding state statutes regulating the size of freight train and switching crews); Fort Smith Light & Traction Co. v. Board of Improvement 274 U.S. 387, 390-91 (1927) (upholding state statute requiring that street railway pave street between its tracks); Great N. Ry. v. Minnesota ex rel. Village of Clara City, 246 U.S. 434, 436-39 (1918) (upholding state statute requiring railroad to construct sidewalk across right of way); St. Louis, Iron Mountain, & S. Ry. v. Arkansas, 240 U.S. 518, 520-21 (1916) (upholding state statute requiring full switching crews on railroads exceeding 100 miles in length); Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67, 76-78 (1915) (upholding state statute requiring outlets for water across rights of way); Minneapolis & St. Louis R.R. v. Minnesota ex rel. R.R. & Warehouse Comm'n, 193 U.S. 53, 64-65 (1904) (upholding state statute requiring railroads to establish stations at all villages and boroughs on their roads).
118. Chicago & N.W. Ry. v. Nye-Schneider-Fowler Co., 260 U.S. 35, 46-48 (1922) (striking down a statute allowing recovery of attorney's fees against carrier upon appeal, under certain circumstances); Chicago, Milwaukee & St. Paul Ry. v. Polt, 232 U.S. 165, 167-68 (1914) (striking down a statute imposing double liability on a railroad unless it pays the full judgment within 60 days from notice); Chicago, Milwaukee & St. Paul Ry. v. Kennedy, 232 U.S. 626, 627 (1914) (following Polt); Missouri Pac. Ry. v. Tucker, 230 U.S. 340, 346-51 (1913) (striking down civil liquidated damages provision for violating rate schedule for shipping petroleum products); St. Louis, Iron Mountain & S. Ry. v. Wynne, 224 U.S. 354, 358-61 (1912) (striking down a statute giving double liablity plus attorney's fees to owner of livestock allegedly killed by railroad, if railroad refused demand for compensation).
119. 224 U.S. 354 (1912).
120. Wynne, 224 U.S. at 359-61.
121. Id. at 359-60.
122. Kansas City S. Ry. v. Anderson, 233 U.S. 325 (1914). The basis of the distinction was that in Wynne, the plaintiff initially recovered less than the amount of his demand and then was awarded over twice this amount under the statute. Id. at 328. This meant that Wynne only held the statute unconstitutional under the facts presented there. Id. at 329-30.
123. Southern Ry. v. Clift, 260 U.S. 316, 320-22 (1922) (upholding state law requiring railroads to pay or reject claims for loss or damage to freight within 90 days, or else suffer liability for such claims); St. Louis, Iron Mountain, & S. Ry. v. Williams, 251 U.S. 63, 66-67 (1919) (upholding as not arbitrary or unreasonable a state statute imposing civil penalties on railroads whose passenger fees exceed those set by state law); Atlantic Coast Line R.R. v. Glenn, 239 U.S. 388, 392-94 (1915) (upholding state statute making shipping carrier liable for certain damage to shipped property even if the loss occurred while the goods were under another carrier's control, where the defendant had tried to contract out of this liability); Yazoo & Miss. Valley R.R. v. Jackson Vinegar Co., 226 U.S. 217, 218-20 (1912) (upholding state law penalizing common carriers for failing to settle claims for lost or damaged freight within a reasonable time period, the penalty being in addition to actual damages).
124. Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 114-17 (1927) (upholding a state law allowing imposition of punitive damages against employers for deaths caused by the negligence of their employees); Eiger v. Garrity, 246 U.S. 97, 102-04 (1918) (upholding a state statute allowing wife whose means of support is damaged by sale of liquor to her husband to recover against tavern, and creating a lien against the owner of the premises to enforce the judgment); Western Union Tel. Co. v. Commercial Milling Co., 218 U.S. 406, 421 (1910) (validating a state statute imposing liability for misdelivery of telegram); Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 67-70 (1910) (finding constitutional a state statute criminalizing the cutting of timber on state lands and imposing multiple damages therefor, even if the cutting was involuntary); Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 111-12 (1909) (affirming penalties for a violation of state antitrust statute).
125. Glenn, 239 U.S. at 391; Western Union, 218 U.S. at 408.
126. 116 S. Ct. 1589 (1996).
127. In Gore, Justice Stevens's opinion for the Court did not use the terms "procedural due process" or "substantive due process." However, by basing the decision on the state's failure to provide fair notice about the penalties BMW could expect for its behavior, Stevens might be thought to have been applying the former. Gore, 116 S. Ct. at 1598. But the criteria he used to determine whether the state provided such notice belie this assumption. These criteria were: (1) the reprehensibility of the defendant's conduct; (2) the disparity between the actual or potential harm suffered by the claimant and the size of the punitive damages award; and (3) the size of the award compared to state civil penalties in comparable cases. Id. at 1598-1603. These criteria appear to be substantive, and the Court did little to explain how the state's failure to meet the first and second of them amounted to inadequate notice. Even if the state had given BMW all the notice in the world, furthermore, it still might have violated due process under these criteria. As if to underline these points, both dissents in Gore characterized the Court's opinion as an application of substantive due process. Id. at 1611 (Scalia, J., dissenting); id. at 1617 (Ginsburg, J., dissenting).
128. Indeed, one of these cases explicitly stated that the presumption in question involved a rule of evidence rather than a substantive right. Reitler v. Harris, 223 U.S. 437, 441-42 (1912).
129. See Manley v. Georgia, 279 U.S. 1, 5 (1929) (stating that a factual presumption "is valid if there is a rational connection between what is proved and what is to be inferred").
130. Western & Atl. R.R. v. Henderson, 279 U.S. 639, 642-44 (1929); Manley, 279 U.S. at 5-7.
131. Ferry v. Ramsey, 277 U.S. 88, 93-95 (1928); Reitler, 223 U.S. at 441-42; Mobile, Jackson, & Kansas City R.R. v. Tumipseed, 219 U.S. 35, 42-44 (1910).
132. See supra notes 72-74, 77-92 and accompanying text.
133. Coolidge v. Long, 282 U.S. 582, 595-606 (1931) (holding that the application of an estate tax to a succession under a trust created before passage of the tax violates due process and the Contract Clause). This article does not consider cases upholding state tax laws that were challenged on due process/Contract Clause grounds.
134. The cases striking down state tax laws on this basis generally involved state taxation of foreign corporations. Cudahy Packing Co. v. Hinkle, 278 U.S. 460, 464-67 (1929) (striking down a filing fee and license tax for out-of-state corporations); Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203, 216-20 (1925) (invalidating a state excise tax on out-of-state corporations); Wallace v. Hines, 253 U.S. 66, 67-70 (1920) (striking down a tax on out-of-state businesses); Union Tank Line v. Wright, 249 U.S. 275, 282-86 (1919) (holding invalid a tax on railroad's rolling stock used in state); International Paper Co. v. Massachusetts, 246 U.S. 135, 142-45 (1918) (striking down an excise tax
135. These cases mainly involved state power to tax out-of-state property, income, and activities. As Benjamin Wright once remarked, they concerned "what is essentially one phase of federalism . . . the relationship between state and state, or, perhaps it would be more accurate to say, between state and property located in other states." WRIGHT, supra note 13, at 160. For a list of the Lochner Court cases striking down state tax laws on these grounds, see Phillips, supra note 41, at 1067-68 & n.76. Impressionistically, I would say that the old Court's decisions upholding such laws against such challenges outnumber the 23 cases cited in that note. The article also does not consider a related group of cases with perhaps a greater claim to be classified as substantive due process decisions. To a greater or lesser extent, each seems to resemble Allgeyer v. Louisiana, 165 U.S. 578, 589-93 (1897) (striking down a state statute forbidding the obtaining of marine insurance on in-state property from any carrier that had not complied with state law). See, e.g., Fidelity & Deposit Co. v. Tafoya, 270 U.S. 426, 433-36 (1926) (striking down a state law that forbade any state-authorized insurance company from paying anyone not so authorized to place insurance on in-state risks); St. Louis Cotton Compress Co. v. Arkansas, 260 U.S. 346, 348-49 (1922) (invalidating a state statute that imposed a five percent tax on monies paid to insure in-state property through an insurer that was not registered to do business within the state); New York Life Ins. Co. v. Dodge, 246 U.S. 357, 367-77 (1918) (discussing Allgeyer while holding that a state statute regarding insurance policies with unpaid premiums could not constitutionally control a contract made out-of-state which asserted that it would be governed by another state's law). Tafoya and St. Louis Cotton Compress apparently did not employ due process; the statute in Dodge, however, was attacked on the theory that it denied freedom of contract. Dodge, 246 U.S. at 377. For some related cases that also concern the permissible extraterritorial reach of state power, see Phillips, supra note 41, at 1064 & n.63.
136. Kansas City S. Ry. v. Road Improvement Dist. No. 3, 266 U.S. 379 (1924).
137. Kansas City S. Ry., 266 U.S. at 386.
138. Id.
139. See Standard Pipe Line Co. v. Miller County Highway & Bridge Dist., 277 U.S. 160, 161-63 (1928) (declaring an assessment arbitrary because claimant received relatively little benefit from the road financed by the assessment); Road Improvement Dist. No. 1 v. Missouri Pac. R.R., 274 U.S. 188, 189-95 (1927) (concluding that amount assessed against railroad for road paralleling its tracks exceeds benefit railroad received from the road); Myles Salt Co. v. Board of Comm'rs, 239 U.S. 478, 479-85 (1916) (holding that a drainage district's taxation of claimant's land was unconstitutional because that land did not benefit from the district's undertakings).
140. See Memphis & Charleston Ry. v. Pace, 282 U.S. 241, 246-49 (1931) (sustaining a road tax's application to a railroad having part of its line and other property within the road district); Kansas City S. Ry., 266 U.S. at 386-89 (upholding road assessment because, inter alia, benefits to property owner may be matter of forecast and estimate, so long as not speculative); House v. Road Improvement Dist. No. 2, 266 U.S. 175, 177-78 (1924) (rejecting as without merit a claim that an assessment was arbitrary because the improvement could not benefit the claimant's lands, while lands that were benefited were not assessed); Missouri Pac. R.R. v. Western Crawford Rd. Improvement Dist., 266 U.S. 187, 189-90 (1924) (holding that apportionment of expenses associated with discontinued road improvement district not invalid because it was based on assessed value of property rather than benefit to property); Houck v. Little River Drainage Dist., 239 U.S. 254, 260-67 (1915) (upholding a tax on landowners within drainage district despite various substantive objections); Phillip Wagner, Inc. v. Leser, 239 U.S. 207, 215-20 (1915) (rejecting challenges to an assessment against landowners for resurfacing of highway); Briscoe v. Rudolph, 221 U.S. 547, 549-51 (1911) (upholding against various substantive arguments assessment against property owner for benefits from extension of District of Columbia street; syllabus suggests claims based on procedural and substantive due process).
141. Salomon v. State Tax Comm'n, 278 U.S. 484,489-90 (1929) (holding methods of valuing contingent remainder in inheritance tax are consistent with due process); Baker v. Druesedow, 263 U.S. 137, 140 (1923) (holding that due process does not prevent state from taxing railroad's intangible property, or from ascertaining property's value by subtracting value of tangible property from value of all property); Southern Ry. v. Watts, 260 U.S. 519, 527-28 (1923) (rejecting claim that valuations made in administration of state property tax violate due process; case seems to involve mixture of procedural and substantive claims); Ohio Tax Cases, 232 U.S. 576, 587-90 (1914) (stating that a levy on intrastate earnings of railroads does not deny due process on theory that privilege tax cannot exceed value of privilege, because tax only caused hardship in isolated cases); Paddell v. City of New York, 211 U.S. 446, 448-51 (1908) (holding that land subject to mortgage can be taxed at full value).
142. Pierce Oil Corp. v. Hopkins, 264 U.S. 137, 138-39 (1924) (upholding law requiring gas stations to collect gas tax); Bowman v. Continental Oil Co., 256 U.S. 642, 649 (1921) (holding that excise tax on sale of gasoline does not offend due process as applied to domestic sales).
143. Jones v. City of Portland, 245 U.S. 217, 220-25 (1917) (holding that a tax to create municipal coal and fuel yard for sale to city's inhabitants is for a public purpose and therefore does not violate due process).
144. Knights v. Jackson, 260 U.S. 12, 14-15 (1922) (rejecting claim that state's income tax distribution to cities for increases in teacher salaries violated due process because it imposed a public charge upon a special class of property and on persons not specially benefited by the resulting outlay).
145. Handy v. Delaware Trust Co., 285 U.S. 352, 354-55 (1932); Heiner v. Donnan, 285 U.S. 312, 322-29 (1932); Schlesinger v. Wisconsin, 270 U.S. 230, 239-40 (1926).
146. Untermyer v. Anderson, 276 U.S. 440, 445-46 (1928).
147. Hoeper v. Tax Comm'n, 284 U.S. 206, 214-18 (1931).
148. Bromley v. McCaughn, 280 U.S. 124, 138-39 (1929) (noting that graduation and exemption schemes in federal gift tax are consistent with due process); Barclay & Co. v. Edwards, 267 U.S. 442, 447-51 (1924) (holding that taxation of certain foreign corporations differently from their U.S. counterparts in federal income tax does not violate the Fifth Amendment); La Belle Iron Works v. United States, 256 U.S. 377, 392-94 (1921) (finding no arbitrary discrimination and no violation of Fifth Amendment due process in provisions of federal excess profits tax). None of these cases formally incorporated equal protection standards within Fifth Amendment due process.
149. See supra notes 9, 72-75 and accompanying text. However, one might say that the incorporation process really began around the turn of the century with the inclusion of Takings Clause standards within Fourteenth Amendment due process. See supra note 82.
150. 262 U.S. 390, 399-403 (1923) (striking down a state statute that forbade the teaching of any subject in any language besides English in both public and private schools, and that also forbade the teaching of any such language as a language to any student who had not completed the eighth grade); see also Bartels v. Iowa, 262 U.S. 404, 409-11 (1923) (striking down several similar statutes on the authority of Meyer).
151. 268 U.S. 510, 534-35 (1925) (striking down a state law requiring that all students between the ages of eight and 16 attend a public school).
152. In Pierce, the Court said that "[u]nder the doctrine of Meyer v. Nebraska, we think it entirely plain that the [law at issue] unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." Pierce, 268 U.S. at 534-35 (citation omitted). Actually, though, Justice McReynolds's Meyer opinion emphasized a panoply of rights, including a language teacher's right to teach a particular language to children, the parents' right to retain him to do so, a pupil's right to acquire knowledge, and the parents' right to control their child's education. Meyer, 262 U.S. at 400-01.
153. Meyer, 262 U.S. at 399.
154. E.g., GUNTHER, supra note 12, at 446, 491-92.
155. See Crane v. Campbell, 245 U.S. 304, 306-08 (1917) (upholding a state statute forbidding, inter alia, the personal possession of liquor); James Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311, 319-20 (1917) (upholding a state prohibition law that, inter alia, forbade the importation of liquor by carriers); Eberle v. Michigan, 232 U.S. 700, 706-07 (1914) (upholding a local option law regarding the sale of liquor within a county against various claims that it deprived brewers and merchants of various property rights); Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 199-205 (1912) (upholding state statute forbidding the sale of malt liquor).
156. Butler v. Petty, 240 U.S. 328, 329, 333 (1916).
157. Waugh v. Board of Trustees, 237 U.S. 589, 593-97 (1915).
158. Murphy v. California, 225 U.S. 623, 628-30 (1912).
159. Marvin v. Trout, 199 U.S. 212, 224-25 (1905). Among other things, this law allowed the loser of a wager to recover his loss from the winner. To enforce any judgment received, moreover, the law gave the loser a lien against the winner's property and also against the building in which the wager occurred (if the owner knowingly permitted gambling to occur there). Id. at 216-17.
160. 274 U.S. 200 (1927).
161. The law was challenged on both due process and equal protection grounds. Buck, 274 U.S. at 205. The substantive due process discussion occurs near the conclusion of Justice Holmes's opinion. Id. at 207.
162. Of the cases cited supra in notes 138-43, the only dissent by Holmes or Brandeis was James Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311, 332 (1917) (Holmes, J., dissenting).
163. 216 U.S. 358 (1910).
164. Laurel Hill Cemetery, 216 U.S. at 364-66.
165. Id. at 364-65.
166. Id. at 365.
167. Id. at 366.
168. Hutchinson v. City of Valdosta, 227 U.S. 303, 307-08 (1913) (upholding an ordinance requiring people near sewer lines to install water closets and to connect with the sewer); Gardner v. Michigan, 199 U.S. 325, 330-33 (1905) (rejecting a challenge to an ordinance requiring all occupants of buildings to place waste in a suitable watertight vessel and to place it where it could be picked up, and letting the city give some party the exclusive right to collect the waste); California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 317-25 (1905) (upholding an ordinance requiring the cremation of garbage and refuse at a designated place).
169. Standard Oil Co. v. City of Marysville, 279 U.S. 582, 586 (1929); Pierce Oil Corp. v. City of Hope, 248 U.S. 498, 499-501 (1919).
170. Jacobson v. Massachusetts, 197 U.S. 11, 12-13, 37-39 (1905).
171. City of Chicago v. Sturges, 222 U.S. 313, 321-22 (1911).
172. Norfolk & Suburban Turnpike Co. v. Virginia, 225 U.S. 264, 270-71 (1912).
173. Atlantic Coast Line R.R. v. Georgia, 234 U.S. 280, 287-89 (1914).
174. Northwestern Laundry v. City of Des Moines, 239 U.S. 486, 489-92 (1916).
175. Miller v. Schoene, 276 U.S. 272, 277-81 (1928).
176. Reinman v. City of Little Rock, 237 U.S. 171, 172, 177-80 (1915) (upholding an ordinance forbidding livery stables within certain parts of a city); Fischer v. City of St. Louis, 194 U.S. 361, 362, 372 (1904) (rejecting a challenge to an ordinance forbidding erection of cow stables and dairies).
177. Bown v. Walling, 204 U.S. 320, 320-21 (1907); Bacon v. Walker, 204 U.S. 311, 314, 317 (1907).
178. Hadacheck v. Sebastian, 239 U.S. 394, 407-12 (1915) (upholding a law prohibiting the manufacture of bricks within certain areas).
179. Thomas Cusak Co. v. City of Chicago, 242 U.S. 526, 529-31 (1917). This case did not specifically use the words due process, but it did distinguish Eubank v. City of Richmond, 226 U.S. 137 (1912), which was a substantive due process case. Thomas Cusak Co., 242 U.S. at 531.
180. Walls v. Midland Carbon Co., 254 U.S. 300, 309-10, 323-24 (1920) (upholding a statute forbidding, inter alia, various uses of natural gas without its heat being fully utilized).
181. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 76-78 (1911) (rejecting a challenge to a statute regulating the pumping of mineral waters containing an excess of carbonic gas with the aim of selling such gas as a separate commodity; aim of law is to preserve the common pool).
182. New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 36-37, 40 (1908) (upholding a statute prohibiting the possession of game during the closed season for such game, as applied to game killed in England).
183. 226 U.S. 137 (1912).
184. Eubank, 226 U.S. at 143-44.
185. 278 U.S. 116 (1928).
186. Roberge, 278 U.S. at 120-23.
187. 245 U.S. 60 (1917).
188. Buchanan, 245 U.S. at 73-82. The relevant portion of the ordinance made it unlawful for any black person to move into and occupy any house located in any block in which the majority of homes are owned by white people.
189. 272 U.S. 365 (1926).
190. Village of Euclid, 272 U.S. at 384-95.
191. Id. at 395.
192. 277 U.S. 183 (1928).
193. Nectow, 277 U.S. at 187-89.
194. Gorieb v. Fox, 274 U.S. 603, 610 (1927) (upholding a setback provision); Zahn v. Board of Pub. Works, 274 U.S. 325, 328 (1927) (upholding a zoning ordinance).
195. Block v. Hirsch, 256 U.S. 135, 154-58 (1921); Marcus Brown Holding Co. v. Feldman, 256 U.S. 170, 197-99 (1921).
196. Terrace v. Thompson, 263 U.S. 197, 216-18 (1923) (upholding a statute preventing aliens who have not declared intention to become a U.S. citizen from taking or holding interests in land); Nicchia v. New York, 254 U.S. 228, 230-31 (1920) (allowing a license fee for dog owners); Western Turf Ass'n v. Greenberg, 204 U.S. 359, 363-64 (1907) (permitting a statute that prevented, with some exceptions, places of public entertainment from forbidding entry to those over 21).
197. Sproles v. Binford, 286 U.S. 374, 388-89 (1932) (upholding weight limits for trucks against a due process attack).
198. Pure Oil Co. v. Minnesota, 248 U.S. 158, 161-64 (1918) (upholding the validity of a law requiring inspection of gasoline and illuminating oil before sale); Price v. Illinois, 238 U.S. 446, 451-53 (1915) (upholding a law forbidding sale of food preservatives containing boric acid); Adams v. City of Milwaukee, 228 U.S. 572, 582-84 (1913) (upholding a portion of an ordinance regulating the sale of milk that required nonconforming milk to be confiscated, forfeited, and destroyed).
199. 270 U.S. 402 (1926).
200. Weaver, 270 U.S. at 409, 412-15. "Shoddy is any material which has been spun into yam, knit, or woven into fabric, and subsequently cut up, torn up, broken up, or ground up." Id.
201. Id. at 414.
202. Corn Prods. Ref. Co. v. Eddy, 249 U.S. 427, 431 (1919).
203. Laws restricting or regulating the sale of oleo, for instance, may well benefit producers of butter. See, e.g., GILLMAN, supra note 53, at 73-75.
204. Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153, 157-60 (1916) (upholding a state law forbidding sale of "ice cream" that does not contain a certain percentage of butter fat); Capital City Dairy Co. v. Ohio, 183 U.S. 238, 245-47 (1902) (upholding a law allowing manufacture and sale of oleo so long as it was free of any coloring or ingredients that would make it appear to be butter); see also Halter v. Nebraska, 205 U.S. 34, 38-43 (1907) (rejecting a challenge to a state statute forbidding, inter alia, sale of merchandise bearing representation of the American flag).
205. Amour & Co. v. North Dakota, 240 U.S. 510, 511, 516-17 (1916) (upholding a state law requiring that lard be sold in containers holding a specified number of pounds, or whole multiples thereof); Schmidinger v. City of Chicago, 226 U.S. 578, 584-85, 590 (1913) (upholding a state law regulating sizes of bread loaves for sale); House v. Mayes, 219 U.S. 270, 277, 282-85 (1911) (upholding a state law requiring grain traders to sell at actual weight).
206. Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 513-17 (1924).
207. See supra note 41 and accompanying text.
208. 273 U.S. 418, 429-45 (1927) (striking down a state law regulating the resale price of theater tickets).
209. 277 U.S. 350, 355-59 (1928) (invalidating a state law regulating the fees charged by employment agencies).
210. 278 U.S. 235, 239-45 (1929) (striking down a state law fixing the retail price of gasoline).
211. Williams, 278 U.S. at 239 (property); Ribnik, 277 U.S. at 358 (property and freedom of contract); Tyson, 273 U.S. at 429 ("[R]ight of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself. . . .").
212. Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 431, 437-39 (1930) (upholding the regulation of fees and prices under the Packers and Stockyards Act); Highland v. Russell Car & Snowplow Co., 279 U.S. 253, 258-62 (1929) (upholding federal price fixing during World War I).
213. 287 U.S. 283 (1932).
214. Jackson, 287 U.S. at 287.
215. Id. at 288.
216. See id. at 289-91 (justifying the need for this particular consumer protection measure).
217. See Williams, 278 U.S. at 239-40; Ribnik, 277 U.S. at 355-58; Tyson, 273 U.S. at 430-31. On the affected-with-a-public-interest doctrine, see supra notes 79-80 and accompanying text.
218. The leading case is German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 405-18 (1914).
219. Northwestern Nat'l Life Ins. Co. v. Riggs, 203 U.S. 243, 249, 252-55 (1906) (upholding a statute saying that no misrepresentation in a life insurance application is material, or can void the contract, unless the matter misrepresented contributed to the contingency insured against; intertwined equal protection and due process challenges).
220. German Alliance Ins. Co. v. Hale, 219 U.S. 307, 313, 315-19 (1911) (upholding a statute allowing insured to recover twenty-five percent of covered loss from insurer connected with a tariff association that fixed rates).
221. Merchants Mut. Auto. Liab. Ins. Co. v. Smart, 267 U.S. 126, 128-30 (1925) (upholding a statute saying that, in auto insurance contracts, the insurer remains liable dispite the insured's insolvency or bankruptcy).
222. Hardware Dealers' Mut. Fire Ins. Co. v. Glidden Co., 284 U.S. 151, 157-59 (1931) (upholding a statute compelling arbitration where the parties cannot agree on the loss payable under a fire insurance policy, and imposing an arbitration clause in the standard fire policy).
223. National Union Fire Ins. Co. v. Wanberg, 260 U.S. 71, 73-77 (1922).
224. Hodge Drive-It-Yourself Co. v. City of Cincinnati, 284 U.S. 335, 336-37 (1932) (upholding a law requiring that auto rental companies pay license fees on vehicles and insure against their negligent operation); Packard v. Banton, 264 U.S. 140, 145 (1924) (finding valid a law requiring that taxi companies be insured).
225. During his exhaustive 1923 attempt to make sense of the affected-with-a-public-interest doctrine, Chief Justice Taft cited as one example of its application Noble State Bank v. Haskell, 219 U.S. 104 (1911), a banking case. Charles Wolff Packing Co. v. Court of Indus. Relations, 262 U.S. 522, 535 (1923). But I do not read Noble State Bank as specifically reaching this conclusion.
226. 219 U.S. 104, 110-13 (1911) (upholding a law imposing one percent fee on bank deposits to establish fund to pay for protection of customers of failing banks).
227. Assaria State Bank v. Dolley, 219 U.S. 121 (1911); Shallenberger v. First State Bank, 219 U.S. 114 (1911).
228. Assaria State Bank, 219 U.S. at 125-27; Noble, 219 U.S. at 113; Shallenberger, 219 U.S. at 120.
229. Broadnax v. Missouri, 219 U.S. 285, 292-93 (1911) (upholding a state statute forbidding maintenance of any place where futures contracts traded); Otis v. Parker, 187 U.S. 606, 608-10 (1903) (upholding a state constitutional provision voiding all margin sales of, and futures contracts for, corporate stock, as applied to margin sales); Booth v. Illinois, 184 U.S. 425, 428-32 (1902) (rejecting a challenge to a state statute criminalizing and voiding certain options and futures contracts).
230. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1505-08 (1996).
231. Packer Corp. v. Utah, 285 U.S. 105, 110-11 (1932) (dismissing a substantive due process challenge to a state law forbidding tobacco advertising on billboards, street car signs, and placards, because the subject was within the police power, an evil existed, and the means for its suppression were appropriate); Fifth Ave. Coach Co. v. City of New York, 221 U.S. 467, 481-83 (1911) (finding that the prohibition of advertising on buses is within the police power); cf. supra note 162 and accompanying text (citing a case involving limitations on the placement of billboards).
232. See supra note 72 and accompanying text.
233. Endicott-Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 290 (1924) (upholding a statute creating lien against future wages of judgment debtor); Great S. Fire Proof Hotel Co. v. Jones, 193 U.S. 532, 548-50 (1904) (finding a state mechanics' lien law to be valid).
234. Kidd, Dater & Price Co. v. Musselman Grocer Co., 217 U.S. 461, 471-74 (1910) (following Lemieux). Lemieux v. Young, 211 U.S. 489, 494-96 (1909) (upholding a state law requiring notice of sale of a merchant's entire stock-in-trade).
235. James-Dickinson Farm Mortgage Co. v. Harry, 273 U.S. 119, 123-24 (1927) (upholding a statute expanding fraud liability to include not only misrepresentations regarding past or existing facts, but also false promises); Delaware, Lackawanna & W. R.R. v. United States, 231 U.S. 363, 369-70 (1913) (addressing a federal law forbidding railroads from transporting their own property in interstate commerce, unless the property was necessary for their business as common carriers); Rosenthal v. New York, 226 U.S. 260, 266-69 (1912) (upholding a state statute forbidding junk dealers from buying wire or copper used by a railroad, telephone or telegraph company, without first determining that the seller had a right to sell); Mutual Loan Co. v. Martell, 222 U.S. 225, 232-35 (1911) (rejecting a challenge to a state law restricting certain assignments of wages by employees); Ling Su Fan v. United States, 218 U.S. 302, 308-11 (1910) (upholding a Philippine law forbidding the exportation of silver coins from the Islands).
236. Central Lumber Co. v. South Dakota, 226 U.S. 157, 162 (1912) (upholding a state statute forbidding price discrimination in sale of commodities); Grenada Lumber Co. v. Mississippi, 217 U.S. 433, 441-43 (1910) (rejecting a due process challenge to a state antitrust law); National Cotton Oil Co. v. Texas, 197 U.S. 115, 127-30 (1905) (upholding a state antitrust law); Smiley v. Kansas, 196 U.S. 447, 453-57 (1905) (upholding a state antitrust law); Aikens v. Wisconsin, 195 U.S. 194, 203-05 (1904) (allowing a statute forbidding combinations for the purpose of willfully or maliciously injuring another in his occupation or business). But cf. Liberty Warehouse Co. v. Burley Tobacco Growers' Coop. Mktg. Ass'n, 276 U.S. 71, 89-97 (1928) (upholding a state cooperative marketing act with what perhaps are some anticompetitive features).
237. 274 U.S. 1 (1927).
238. Fairmont Creamery Co., 274 U.S. at 3.
239. Id. at 8-9.
240. 244 U.S. 590 (1917). The law struck down in Adams was a state initiative making it unlawful for employment agencies to receive fees from people seeking employment, in return for furnishing those people with employment or with information leading thereto. Id. at 592-97.
241. Baccus v. Louisiana, 232 U.S. 334, 337-38 (1914) (addressing a state law forbidding the sale of drugs by itinerant vendors).
242. The old Court upheld a related restriction on occupational freedom, a license tax, in three substantive due process cases decided in 1916. Rast v. Van Deman & Lewis Co., 240 U.S. 342, 363-67 (1916); Tanner v. Little, 240 U.S. 369, 381-86 (1916) (following Rast); Pitney v. Washington, 240 U.S. 387, 390-91 (1917) (following Rast and Tanner).
243. See Michael J. Phillips, Entry Restrictions in the Lochner Court, 4 GEO. MASON L. REV. 405, 431-34 (1996).
244. Graves v. Minnesota, 272 U.S. 425, 426-29 (1926) (upholding dentistry licensing); La Tourette v. McMaster, 248 U.S. 465, 467-68 (1919) (involving insurance brokerage); Payne v. Kansas ex rel. Brewster, 248 U.S. 112, 112-13 (1918) (upholding restriction on the sale of farm produce on commission); McNaughton v. Johnson, 242 U.S. 344, 348-49 (1917) (involving optometry).
245. See Weller v. New York, 268 U.S. 319, 324-25 (1925) (conducting a substantive review of law requiring license to resell theater tickets, but not clearly due process review); Merchants' Exch. v. Missouri ex rel. Barker, 248 U.S. 365, 367-68 (1919) (conducting a substantive review of law forbidding weighing of grain at public warehouses by anyone except authorized and bonded state weigher, but making no clear reference to due process); Merrick v. N.W. Halsey & Co., 242 U.S. 568, 590 (1917) (following Hall); Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 564-68 (1917) (following Hall); Hall v. Geiger-Jones Co., 242 U.S. 539, 550-52 (1917) (substantively reviewing a law requiring license for securities brokers, but making no clear reference to due process); Lehon v. City of Atlanta, 242 U.S. 53, 54-55 (1916) (applying substantive review in a Fourteenth Amendment challenge to an ordinance limiting entry to the position of private detective); Brazee v. Michigan, 241 U.S. 340, 343-44 (1916) (applying substantive review in a Fourteenth Amendment challenge to a licensing scheme for employment agencies); Collins v. Texas, 223 U.S. 288, 295-97 (1912) (applying substantive review in a Fourteenth Amendment challenge to a law limiting entry to the practice of osteopathy); Engel v. O'Malley, 219 U.S. 128, 136-37 (1911) (applying substantive review in a Fourteenth Amendment challenge to a licensing law for private banking, with a separate equal protection discussion).
246. 285 U.S. 262, 273-80 (1932) (striking down a state law limiting access to the ice business).
247. 278 U.S. 105, 111-14 (1928) (invalidating a state law essentially requiring that every pharmacy or drug store going into business after the law's passage be wholly owned by a licensed pharmacist or pharmacists).
248. For more on these two cases, see Phillips, supra note 226, at 438-41, 443-47 and infra notes 297-304 and accompanying text.
249. Smith v. Cahoon, 283 U.S. 553, 563 (1931); Frost v. Railroad Comm'n, 271 U.S. 583, 592-99 (1926); Michigan Pub. Utils. Comm'n v. Duke, 266 U.S. 570, 577-78 (1925). For more on these cases, the other constitutional issues they presented, and some other cases presenting those issues, see Phillips, supra note 226, at 435-38. Common carriers undertake to carry all persons or their goods, while private carriers undertake to carry particular people or particular goods on particular occasions.
250. Stephenson v. Binford, 287 U.S. 251, 265-69 (1932).
251. 233 U.S. 630 (1914).
252. Smith, 233 U.S. at 636-39. This case found the law unconstitutional on Fourteenth Amendment grounds without specifying a specific provision, but indicating that life, liberty, property, and equal protection are closely related. Id. at 636.
253. 271 U.S. 500 (1926).
254. Yu Cong Eng, 271 U.S. at 524-27.
255. See supra notes 12-41 and accompanying text
256. Lochner v. New York, 198 U.S. 45, 57-64 (1905) (striking down a maximum-hours law for oakery employees).
257. 208 U.S. 412, 417-23 (1908) (upholding a state maximum hours law for women).
258. 243 U.S. 426, 434-39 (1917) (upholding a state maximum hours law for factory workers). Bunting often is read as overruling Lochner sub silentio. E.g., CURRIE, supra note 9, at 103.
259. 208 U.S. 161, 172-76 (1908) (striking down a federal law that forbade the firing of railroad workers due to their union affiliation).
260. 236 U.S. 1, 8-20 (1915) (rejecting a state statute banning yellow dog contracts). Yellow dog contracts make membership in a union a condition of a worker's employment.
261. 261 U.S. 525, 545-62 (1923) (overturning a District of Columbia minimum wage law for women and children). Six years before Adkins was decided, a per curiam decision by an equally divided Court had affirmed lower court decisions upholding minimum wage laws. Stettler v. O'Hara, 243 U.S. 629 (1917).
262. Bosley v. McLaughlin, 236 U.S. 385, 392-94 (1915) (reviewing an eight hour daily maximum for women, as applied to graduate nurses in hospitals); Miller v. Wilson, 236 U.S. 373, 379-82 (1915) (evaluating statutory limitations of an eight hour day for women in a wide range of occupations); Riley v. Massachusetts, 232 U.S. 671, 679-81 (1914) (reviewing a ten hour daily limit for women working in manufacturing or mechanical establishments). See also Hawley v. Walker, 232 U.S. 718 (1914) (upholding a maximum hours law for women on the authority of Muller v. Oregon).
263. Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 603-18 (1936); Donham v. West-Nelson Mfg. Co., 273 U.S. 657 (1927); Murphy v. Sardell, 269 U.S. 530 (1925).
264. Charles Wolff Packing Co. v. Court of Indus. Relations, 262 U.S. 522, 534-44 (1923); see also Dorchy v. Kansas, 264 U.S. 286, 289-91 (1924) (accepting Charles Wolff Packing Co. while declining to decide whether a provision of the act at issue there was separable from it, and returning the case to the state for a decision on this issue); Charles Wolff Packing Co. v. Court of Indus. Relations, 267 U.S. 552, 566-69 (1925) (striking down a maximum-hours provision contained in a writ of mandamus issued by a state supreme court following the first Charles Wolff Packing Co. case's return to that court).
265. Truax v. Corrigan, 257 U.S. 312 (1921). In this case, the state law was applied to permit union picketing and handbilling that libelled a restaurant owner and threatened injury to his customers. Id. at 327-30.
266. E.g., Adkins, 261 U.S. at 553-54 (stating that the amount of wages to be paid and received is "at the heart" of a labor contract).
267. Id. at 547.
268. See Rail & River Coal Co. v. Yaple, 236 U.S. 338, 349-55 (1915) (upholding a state law requiring that coal miners' pay be based, generally speaking, on car loads of coal they produced); Erie R.R. v. Williams, 233 U.S. 685, 699-704 (1914) (rejecting a challenge to a state law requiring that railroads pay their employees semi-monthly in cash); McLean v. Arkansas, 211 U.S. 539, 545-51 (1909) (upholding a state law requiring that, for payment purposes, coal produced by miners be weighed as it comes from the mine, and before it is passed over a screen).
269. Adkins, 261 U.S. at 547; see Heim v. McCall, 239 U.S. 175, 191-93 (1915) (allowing a state law giving citizens a preference over aliens in employment on public works); Crane v. New York, 239 U.S. 195, 198 (1915) (a companion case to Heim); Atkin v. Kansas, 191 U.S. 207, 219-24 (1903) (upholding a state law regulating wages and hours of workers employed by municipal paving contractors); cf. Ellis v. United States, 206 U.S. 246, 254-56 (1907) (upholding a federal statute limiting the hours worked by federal workers or employees of federal contractors to eight per day; decided on authority of Atkin without mentioning due process).
270. See Lochner v. New York, 198 U.S. 45, 58-61 (1905).
271. See, e.g., Muller v. Oregon, 208 U.S. 412, 421-23 (1908).
272. Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320, 325-26 (1913).
273. Radice v. New York, 264 U.S. 292, 293-95 (1924).
274. Barrett v. Indiana, 229 U.S. 26, 28-29 (1913); cf. Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 70-74 (1907) (upholding as consistent with the Fourteenth Amendment a state law requiring licensure of mine managers and examiners and making mine liable for their willful failure to furnish a reasonably safe place for workers).
275. Booth v. Indiana, 237 U.S. 391, 395-97 (1915).
276. Prudential Ins. Co. v. Cheek, 259 U.S. 530, 534-36 (1922); Chicago, Rock Island & Pac. Ry. v. Perry, 259 U.S. 548, 555-56 (1922).
277. Second Employers' Liab. Cases, 223 U.S. 1, 52-53 (1911) (upholding provision of federal law covering railroads' liability for their employees' on-the-job injuries that voids any contract by which employer tries to eliminate its liability under the act); Chicago, Burlington & Quincy R.R. v. McGuire, 219 U.S. 549, 563-73 (1911) (upholding provision of state law governing railroads' liability for their employees' workplace injuries that prevented any contract of insurance relief, benefit, or indemnity between employer and employee from operating as a defense to the statutory liability); see also Bowersock v. Smith, 243 U.S. 29, 34-35 (1917) (holding that a state statute making employer liable for failure to properly guard manufacturing equipment does not violate due process as applied to employee who had contracted with the employer to provide the safeguards whose absence caused his death).
278. 243 U.S. 188, 196-208 (1917).
279. 243 U.S. 219, 235-46 (1917).
280. The Court also upheld a similar measure in 1919. See Arizona Employers' Liability Cases, 250 U.S. 400, 420-31 (1919). Later, on grounds resembling those it used to sustain similar state laws, the Court upheld the substantive and remedial provisions of the federal Longshoreman's and Harbor Workers' Compensation Act against a due process attack. Crowell v. Benson, 285 U.S. 22, 41-42 (1932).
281. New York Cent. R.R. v. Bianc, 250 U.S. 596, 600-03 (1919) (rejecting employer's claim that employee recovery for disfigurement deprives employer of property without due process).
282. New York State Rys. v. Shuler, 265 U.S. 379, 383-84 (1924) (upholding law requiring that, when employee dies without beneficiaries, employer must make contribution to state workers' compensation fund); R.E. Sheehan Co. v. Shuler, 265 U.S. 371, 376-78 (1924) (involving same facts and resulting in indentical holding as Shuler); Madera Sugar Pine Co. v. Industrial Accident Comm'n, 262 U.S. 499, 500-04 (1923) (finding no violation of due process for otherwise-valid workers' compensation law requiring that compensation for accidental death be paid to employee's nonresident alien dependents). See also Staten Island Rapid Transit Ry. v. Phoenix Indem. Co., 281 U.S. 98, 106-08 (1930) (upholding a portion of the law at issue in New York State Rys. and Sheehan Co. which required that the employer be indemnified by a third party against whom the employee had recovered outside workers' compensation).
283. Ward & Gow v. Krinsky, 259 U.S. 503, 510-16 (1922) (upholding the extension of the law at issue in White to most occupations in which four or more workers are employed).
284. Bountiful Brick Co. v. Giles, 276 U.S. 154, 158-59 (1928); Cudahy Packing Co. v. Parramore, 263 U.S. 418, 422-26 (1923). Both cases upheld workers' compensation recoveries where the employees were killed while going to work.
285. Middleton v. Texas Power & Light Co., 249 U.S. 152, 155, 162-63 (1919) (finding that an employee was not deprived of liberty and property without due process when state law required him to accept workers' compensation at his employer's election).
286. Yeiser v. Dysart, 267 U.S. 540, 541 (1925) (upholding a state law restricting the fees attorneys could charge clients in workers' compensation cases).
287. See supra note 4 and accompanying text.
288. See supra note 4; see also supra notes 77-100 and accompanying text.
289. See supra notes 101-31 and accompanying text.
290. See supra notes 132-222, 238-69 and accompanying text.
291. See supra notes 239-69 and accompanying text.
292. See supra notes 146-65, 179-222, 253-69 and accompanying text. One conspicuous exception to this generalization, however, concerns the cases involving price regulation. See supra notes 191-95, 244-47 and accompanying text.
293. See supra notes 89-90 and accompanying text.
294. See supra notes 97-107, 122-31, 223-36 and accompanying text.
295. See supra notes 166-78, 191-95, 244, 246-48 and accompanying text.
296. See supra notes 89, 191-93, 244, 246-47 and accompanying text.
297. This tendency receives more attention infra at notes 330-39 and accompanying text.
298. See supra notes 3-4, 9 and accompanying text.
299. See supra notes 72-75, 116-18 and accompanying text (depicting particular "incorporation" cases).
300. Washington v. Glucksberg, 117 S. Ct. 2258, 2279 (1997) (Souter, J., concurring); see supra text accompanying note 65.
301. However, maybe one could argue that the rule the Court applied in its 1920s price regulation cases, which made their constitutionality depend on the relevant industry's being affected with a public interest, qualifies as an "absolutist" standard. See supra notes 191-93, 200 and accompanying text. The better word, though, might be "mechanical."
302. See supra notes 56-62 and accompanying text.
303. See, e.g., ELY, CHIEF JUSTICESHIP OF MELVILLE FULLER, supra note 82, at 88; see also Richard J. Pierce, Jr., Public Utility Regulatory Takings: Should the Judiciary Attempt to Police the Political Institutions?, 77 GEO. L.J. 2031, 2044-45 (1989).
304. See, e.g., ELY, CHIEF JUSTICESHIP OF MELVILLE FULLER, supra note 82, at 88; see also Richard J. Pierce, Jr., Public Utility Regulatory Takings: Should the Judiciary Attempt to Police the Political Institutions?, 77 GEO. L.J. 2031, 2044-45 (1989).
305. ELY, CHIEF JUSTICESHIP OF MELVILLE FULLER, supra note 82, at 88; Porter, supra note 62, at 143.
306. See, e.g., Detroit United Ry. v. City of Detroit, 248 U.S. 429, 434-36 (1919) (striking down a municipal ordinance regulating street railway fares because its enforcement would result in a deficit for the company).
307. See, e.g., Pierce, supra note 286, at 2048-53 (describing state regulators' alternate patterns of excessively favoring and disfavoring electric utilities during the 1950s through the 1980s).
308. See supra notes 109-10 and accompanying text.
309. See, e.g., WALTER NICHOLSON, MICROECONOMIC THEORY: BASIC PRINCIPLES AND EXTENSIONS 432-34 (4th ed. 1989).
310. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 308-10 (3d ed. 1986).
311. Herbert Hovenkamp, The Political Economy of Substantive Due Process, 40 STAN. L. REV. 379, 390 (1988); see id. at 388-90.
312. The most common justifications for entry restrictions are: (1) to allocate inherently scarce physical resources such as broadcasting frequencies; (2) to get the benefits and prevent the costs of real or alleged natural monopolies such as electrical power generation and some other businesses affected with a public interest; and (3) to protect the public against unethical or incompetent practitioners. Phillips, supra note 226, at 411; see id. at 408-12 and the sources cited therein.
313. S. DAVID YOUNG, THE RULE OF EXPERTS: OCCUPATIONAL LICENSING IN AMERICA 1 (1987).
314. See Phillips, supra note 41, at 431-34. For the substantive due process cases involving occupational licensing, see supra notes 225-28 and accompanying text.
315. For a more complete listing and discussion of the old Court's non-occupational licensing entry restriction cases, see Phillips, supra note 41, at 434-47.
316. 278 U.S. 105 (1928).
317. North Dakota State Bd. of Pharmacy v. Snyder's Drug Stores, 414 U.S. 156, 167 (1973).
318. Liggett, 278 U.S. at 113-14.
319. See id.
320. Id. at 113-14.
321. See id. at 114-15 (Holmes, J., dissenting). In his dissent, which was joined by Justice Brandeis, Holmes argued that the challenged law need only have a "manifest tendency" to lessen the evil it attacks, and that a firm's ownership probably has some impact on the safety of its operations. Id. at 114-15. Justice Douglas made a similar argument while writing to uphold a very similar law in North Dakota State Board of Pharmacy, 414 U.S. at 166-67.
322. 285 U.S. 262 (1932).
323. Liebmann, 285 U.S. at 311 (Brandeis, J., dissenting).
324. See id. at 273-78 (Sutherland, J., for the Court). Actually, Sutherland used the term "charged with a public use." Id. at 273. But he most likely was extending the rule that price regulation is unconstitutional for businesses not affected with a public interest, see supra notes 191-93, 200 and accompanying text, to the entry restriction arena; Phillips, supra note 41, at 440-41 & n.198.
325. Liebmann, 285 U.S. at 279.
326. For an extended critique of Brandeis's dissent, see Phillips, supra note 226, at 443-47. See also ARKES, supra note 49, at 54-58; POSNER, supra note 292, at 590-93; and BERNARD SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 132-38 (paperback ed. 1980). My account borrows heavily from these sources.
327. Liebmann, 285 U.S. at 292 (Brandeis, J., dissenting). The industry's hostility to this state of affairs, he continued, led it to engage in various anticompetitive practices. Id. at 292-93. And once the Oklahoma law was passed, the industry readily accepted it. Id. at 294.
328. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 7 (1992).
329. See, e.g., Phillips, supra note 226, at 412.
330. GILLMAN, supra note 53, at 7. For additional statements of Gillman's position see id. at 7-11, 61-62, 199.
331. Id. at 61.
332. Id.
333. E.g., id. at 199. As we will see, however, this does not make Gillman a defender of the old Court's jurisprudence. See infra note 316 and accompanying text.
334. See GILLMAN, supra note 53, at 181, 261 n.37.
335. See, e.g., id. at 49-60, 64-75, 86-99, 120-31, 137-46, 167-93.
336. See supra text accompanying notes 276-79.
337. See supra note 97 and accompanying text.
338. 217 U.S. 196 (1910); see supra notes 91-96 and accompanying text.
339. Missouri Pac. Ry., 217 U.S. at 204.
340. See supra notes 101-08 and accompanying text.
341. GILLMAN, supra note 53, at 139-40. Gillman, I presume, would add that these laws were justified class legislation.
342. 208 U.S. 161 (1908); see supra note 240 and accompanying text.
343. 236 U.S. 1 (1915); see supra note 243 and accompanying text.
344. Coppage, 236 U.S. at 16-17. Later, the Court argued that because unions presumably had a right to exclude members who are willing to work in non-union shops and workers could refuse the employ of firms that employ nonunion labor, symmetry of treatment demands that employers have the right to exclude employees for their union affiliation. Id. at 20.
345. SIEGAN, supra note 308, at 148-49.
346. I have been able to find only a few 1902-1932 substantive due process cases using the terms "class legislation," "class law," "partial legislation," or "partial law." Southern Ry. Co. v. Clift, 260 U.S. 316, 320 (1922); Truax v. Corrigan, 257 U.S. 312, 333 (1921); Payne v. Kansas ex rel. Brewster, 248 U.S. 112, 113 (1918); Mountain Timber Co. v. Washington, 243 U.S. 219, 239 (1917); Rosenthal v. New York, 226 U.S. 260, 267 (1912); Muller v. Oregon, 208 U.S. 412, 418 (1908). In none of these cases was the Court's use of the term vital to its decision. A few equal protection cases used these terms as well.
347. GILLMAN, supra note 53, at 128; see id. at 125-31 for his complete discussion of Lochner. Interestingly, Gillman does not consider what may be the best argument for the idea that Lochner's maximum-hours law was class legislation - Bernard Siegan's contention that it gave large, mechanized bakeries (whose employees tended to work fewer hours) an edge over their smaller, less sophisticated counterparts (whose employees tended to work much longer). See SIEGAN, supra note 308, at 115-18. Siegan's argument also is not discussed in Paul Kens's recent history of the Lochner case. See PAUL KENS, JUDICIAL POWER AND REFORM POLITICS: THE ANATOMY OF LOCHNER V. NEW YORK (1990).
348. See supra notes 279-80 and accompanying text.
349. See supra note 249 and accompanying text.
350. See supra notes 39-42 and accompanying text.
351. See the decisions cited supra in notes 89, 191-93.
352. See, e.g., Washington v. Glucksberg, 117 S. Ct. 2258, 2267-68 (1997) (listing the fundamental liberty interests that now get strict substantive due process scrutiny). Included among these interests are three listed by Justice McReynolds in Meyer, see supra text accompanying note 136. These are the rights to many, to have children, and to direct the education and upbringing of one's children.
353. Also militating against the idea that liberty of contract was a preferred freedom during the Lochner era is the considerable number of cases rejecting substantive due process challenges to laws that allegedly restricted contractual freedom. I have not attempted a headcount of these cases, but they outnumber the decisions invalidating laws on this basis, see Phillips, supra note 41, at 1086 n.197, by a huge margin.
354. 262 U.S. 390 (1923); see supra text accompanying note 136.
355. Coppage v. Kansas, 236 U.S. 1, 14 (1915) (concluding that freedom of contract included in liberty and property); Adair v. United States, 208 U.S. 161, 172 (1908) (stating that liberty and property embrace freedom of contract).
356. See supra notes 133-35 and accompanying text.
357. See supra notes 166-70 and accompanying text.
358. See, e.g., supra notes 56-57 and accompanying text.
359. See, e.g., GILLMAN, supra note 53, at 11, 13-14, 21-22, 76-86, 114-18.
360. Although they do not begin to exhaust a subject that probably demands a book, two interrelated remarks on this subject may be in order. The first is that people too often seem to believe that if A is a large business firm and B is a natural person, and if B accepts A's offered terms without any bargaining, then A has superior bargaining power. For example, Roscoe Pound implicitly adopted this view when he criticized a court for ignoring "actual industrial conditions" by treating the relation between railroads and their employees "as if the parties were individuals - as if they were farmers haggling over the sale of a horse." Pound, supra note 39, at 454. But if this is the model for equal bargaining power, it rarely exists (which probably was Pound's point). And in that event, government has the right and perhaps the duty to regulate private contracts extensively (which may not have displeased Pound either). Why, however, are human parties, relatively equal size, and/or genuine bargaining the criteria for determining whether government intervention is appropriate? Their imposition would justify regulation of, for example, the simplest terms of consumer contracts in the most competitive industries. This leads to my second point, which is that better criteria for determining the appropriateness of government regulation are whether the supposedly weaker parties had genuine choices, the capacity to identify those choices and appreciate their significance, and the means to exercise them. Regarding the first criterion, it is worth noting that some economists who study labor markets and who think along these lines doubt whether monopsony conditions - conditions in which one firm is a monopoly or oligopoly seller of labor - are common in the United States today. See Michael J. Phillips, Toward a Middle Way in the Polarized Debate over Employment at Will, 30 AM. BUS. L.J. 441, 464-65 (1992) and sources cited and discussed therein. Of course, this is not to say that things were the same during the Lochner era. The second criterion, capacity to identify available choices, probably varies with the contractual term in question. For example, most people can readily evaluate a job's wage, but relatively few can handle the details of an employer's health insurance policy. One example of the third criterion, whether the other party has the means to exercise her options, would be the availability and cost of transportation to alternative jobs.
361. See supra text accompanying notes 271-75.
362. See supra notes 289-92 and accompanying text.
363. See supra notes 43-47 and accompanying text.
364. See supra notes 45-47 and accompanying text.
365. E.g., Antonin Scalia, On the Merits of the Frying Pan, REGULATION, Jan.-Feb. 1985, at 10, 13.
366. Cf. Pierce, supra note 286, at 2045-46 (discussing the various institutional limitations that led the Court to abandon serious review of rate decisions during the 1940s).
367. See supra notes 89-90 and accompanying text.
368. See Adkins v. Children's Hosp., 261 U.S. 525, 545-61 (1923).
369. UROFSKY, supra note 54, at 543.
370. See generally supra notes 238-69 and accompanying text.
371. McCloskey, supra note 38, at 42-43 (arguing that the old Court's extremism bred extremism in subsequent thinking about it).
372. See Morton J. Horwitz, Republicanism and Liberalism in American Constitutional Thought, 29 WM. & MARY L. REV. 57, 57-63 (1987) (explaining how progressives helped legitimize New Deal programs and delegitimize the old Court by falsely picturing the latter as a break with tradition and by touting the Court's supposed return to a noninterventionist stance). Horwitz's overall position, I might add, seems like Gillman's general view. Although Horwitz rejects the idea that the Court consciously set out to assist business by killing social legislation and instead pictures its motives much as Gillman does, he regards its policy of state neutrality as inappropriate to the industrial age. Id.
373. BENJAMIN N. CARDOZO, THE GROWTH OF THE LAW 72-73 (1924).
374. See supra note 8 and accompanying text.
375. See supra notes 304-05 and accompanying text. I do not read Brandeis's long dissent as ever really confronting Sutherland's argument that the Oklahoma entry restriction thwarted competition for private ends.