The lost history of governance and equal protection

Duke Law Journal

Volumn 58, Issue 6, 2009, Pages 955-1012

  Nourse, V F ^a   Maguire, Sarah A ^b  

^a EMORY UNIVERSITY SCHOOL OF LAW   (United States)

^b District Court in the Southern District of New York and Judge Richard Cudahy ^*  (United States)

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EID: 68049113397     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (462)

1. See, e.g., Norman Dorsen, Equal Protection of the Laws, 74 Colum. L. Rev. 357, 358 (1974)
2. Gerald Gunther, The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 48 (1972) (citing Buck's "usual last resort" proposition as true of an earlier day)
3. Philip P. Kurland, Egalitarianism and the Warren Court, 68 Mcih. L. Rev. 629, 638 (1970) (sAme). This is also the message of the most influential equal protection article of the twentieth century
4. See Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341, 341 (1949) (stating in the first paragraph that the Equal Protection Clause had suffered "eighty years of relative desuetude" and quoting Holmes's statement for support). This view remains an assumption of those who engage constitutional History, see 1 Bruce Ackerman, We The People: Foundations 119 (1991)
5. Mcihael Klarman, An Interpretive History of Modern Equal Protection, 90 Mcih. L. Rev. 213, 214 (1991) (citing Zablocki v. Redhail, 434 U.S. 374, 395 (1978) (Stewart, J., concurring)
6. (Buck v. Bell, 274 U.S. 200, 208 (1927)), as well as those simply considering modern issues, see Rebecca L. Brown, Liberty, The New Equality, 77 N.Y.U. L. Rev. 1491, 1493 n.8 (2002) (citing Buck for the proposition that equal protection was once the "last resort" of equality arguments); Suzanne B. Goldberg, Equality Without Tiers, 77 S. Cal. L. Rev. 481, 494 (2004) (sAme).
7. Buck v. Bell, 274 U.S. 200, 207-08 (1927) (upholding the constitutionality of forced sterilization).
8. In a sense this should not be surprising, as the structure of litigation tends to prefer the repeat play of the "haves." See Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc'y Rev. 95, 123 n.72 (1974).
9. Precedent requires Lawyers to look for the present in the past in the following sense: Lawyers are taught to look for cases "on point." In the case of equal protection, Lawyers look for cases involving modern problems of sex, race, and gay rights, and finding nothing, conclude that there is no Law of equal protection. History, in our view, is essential to disrupt this precedential fallacy. For a demonstration of just how relentlessly presentist the modern system of precedent is and how it requires reading the present into the past, see VIctoria F. Nourse, in Reckless Hands: Skinner V. Oklahoma and the Near Triumph of American Eugenics 15-16, 151-52 (2008).
10. Gunther, supra note 1, at 42 (equating subStantive due process with the "repulsive connotation" of value-based judicial Review)
11. Jack M. Balkin, How New Genetic Technologies Will Transform Roe v. Wade, 56 Emory L.J. 843, 855 (2007) ("[L]imits on abortion are a form of class legislation. .. .")
12. Melissa L. Saunders, Equal Protection, Class Legislation, and Color Blindness, 96 Mcih. L. Rev. 245, 334 (1997) (suggesting that class legislation can aid resolving voting rights cases)
13. see also Mark G. Yudof, Equal Protection, Class Legislation, and Sex Discrimination: One Small Cheer for Mr. Herbert Spencer's Social Statics, 88 Mcih. L. Rev. 1366, 1387 (1990) (exploring "the idea that the HistoriCal concept of equal protection, rooted in the nineteenth-century commitment to equality under Law and animus to class legislation, is fully applicable to discrimination on the basis of sex").
14. While this Article was in press, Congress did make changes to the crack cocaine penalties, but after more than a decade of Calls to change the rules by commentators and the Sentencing Commission. See U.S. Sentencing Comm'n, Special Report to the Congress: Cocaine and Federal Sentencing Policy Executive SumMary xiv (1995), available at http://www.ussc.gov/crack/execsum.pdf (recommending Revision of the "100-to-1" sentencing disparity between crack and powder cocaine)
15. David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1306-11 (1995).
16. See, e.g., Plessy v. Ferguson, 163 U.S. 537, 551 (1896) (upholding "separate but equal" Laws)
17. Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178 (1874) (upholding the disfranchisement of women)
18. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 137-39 (1872) (upholding a state Law prohibiting women from practicing Law).
19. Buck v. Bell, 274 U.S. 200, 208 (1927).
20. E.g., Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (racial classifications)
21. Gratz v. Bollinger, 539 U.S. 244, 275 (2003) (racial classifications)
22. United States v. Virginia, 518 U.S. 515, 531 (1996) (gender classifications)
23. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 445-46 (1985) (denying heightened scrutiny for a classification of the mentally handicapped); see also Brown, supra note 1, at 1500-05 (discussing the Supreme Court's approach toward "issues of unequal treatment on the basis of race or other group characteristics" and "protection of liberty").
24. This term is not necessarily an accurate description. It was widely believed by the runof-the-mine scholar of the early twentieth century that the laissez-faire period was limited to the nineteenth century. Professor Charles Burdick, for exAmple, wrote, Until the latter part of the nineteenth century the public mind was suspicious of governmental encroachment, hostile to governmental Regulation, and bent upon the preservation of the largest possible degree of individual freedom.. .. [T]he opinions of the Supreme Court. .. have in recent years shown a change of emphasis, as a result of which the constitutional limitations upon state action have been liberally construed in favor of a wide power of governmental control. Charles K. Burdick, the Law of the American Constitution: Its Origin and Development § 196, at 469 (1922). Scholars and Historians know that the laissez-faire aspiration is one that each generation aims to reimagine. For the widespread presence of Law and Regulation in the nineteenth century, see generally WilliAm J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century AmERICA (1996). Even students and seeming advocates of the Lochner era know that, until the 1920s, the Court consistently upheld Regulation.
25. See David E. Bernstein, Lochner's Legacy's Legacy, 82 Tex. L. Rev. 1, 62-63 (2003) (recognizing that there were discontinuities in this period).
26. It is hornbook constitutional Law that class or wealth is not a characteristic that triggers strict scrutiny. See, e.g., Lewis v. Casey, 518 U.S. 343, 374 (1996)
27. ("[W]ealth discrimination alone [does not] provid[e] an adequate basis for invoking strict scrutiny. .. ." (first alteration added) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973))). In fact, the Court has struck down Laws involving wealth discrimination in some conTexts
28. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 638 (1969) (holding that a statutory prohibition of welfare benefits to residents of less than a year was unconstitutional)
29. Griffin v. Illinois, 351 U.S. 12, 18-19 (1956) (striking down legislation that denied indigents free trial transcripts)
30. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (finding unconstitutional a statute that sterilized chicken thieves but not embezzlers).
31. See supra note 1 and accompanying Text.
32. We recognize that, for some Historians, the term "subStantive due process" is anachronistic. It is true, as Professor G. Edward White has shown, that this term was not used during the Lochner period in the caseLaw.
33. G. Edward White, Revisiting SubStantive Due Process and Holmes's Lochner Dissent, 63 Brook. L. Rev. 87, 88-89 (1997). The absence of a particular term should not, however, obscure the fact that there was a good deal of discussion during this period about whether the Due Process Clause addressed not only "procedure but also. .. subStantive Law."
34. Robert P. Reeder, The Due Process Clauses and "the SubStance of Individual Rights," 58 U. PA. L. Rev. & Am. L. Reg. 191, 191 (1910).
35. LEXIS, U.S. Supreme Court Cases, Lawyers' Edition, search between January 1, 1900, and December 31, 1930, with the terms "right to property" or "right to contract." The disparity was not as extreme in the state courts. In the state court database for this sAme period, for exAmple, 2,196 cases referred to "right to property" or "right to contract," 1,371 referred to "class legislation," and over three thousand referred to "equal protection." LEXIS, State Court Cases, Combined, search between January 1, 1900, and December 31, 1930, with the terms: "right to property" and "right to contract"; "class legislation"; and "equal protection." One caveat is important here: although the terms "right to property" and "right to contract" are the terms one uses today to view the Lochner period, these terms were not always expressed in this fashion, and so this set of numbers may undercount the number of cases that dealt with property or contract in some way. Our point is not to fetishize a particular number; it is to emphasize that equal protection was a far more common argument than is typiCally imagined.
36. Lochner v. New York, 198 U.S. 45, 54-55 (1905).
37. Lochner has come to be known as a case about the right to liberty or contract, not equal protection, but was argued as a case about class legislation. For a sustained argument on the importance of class legislation to Lochner, see White, supra note 16, at 97. For the conventional account focusing on the right to contract, see Stewart Jay, The Creation of the First Amendment Right to Free Expression: From the Eighteenth Century to the Mid-Twentieth Century, 34 Wm. Mithell L. Rev. 773, 824-25 (2008) ("This period was high noon for freedom of contract under the Regime of Lochner v. New York.")
38. J. Harvie Wilkinson III, Toward One America: A Vision in Law, 83 N.Y.U. L. Rev. 323, 325 (2008) ("Lochner v. New York advanced the notion of a personal freedom of contract as part of the liberty protected by the Fourteenth Amendment.").
39. Muller v. ORegon, 208 U.S. 412, 419 (1908). Muller is known for its use of the so-Called Brandeis brief written by future Justice Louis Brandeis on actual labor conditions, not equal protection. See id. at 419 & n.1.
40. Whitney v. California, 274 U.S. 357, 369-70 (1927).
41. The Whitney case upheld the application of California's criminal syndiCalism Law to a member of the Communist Party. Id. at 372. The case is most remembered for Justice Brandeis's passionate defense of free speech in his concurring opinion: They [the Founders] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of PolitiCal truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a PolitiCal duty; and that this should be a fundAmental principle of the American government. Id. at 375 (Brandeis, J., concurring).
42. See generally Vincent Blasi, The First Amendment and the Ideal of Civil Courage: The Brandeis Opinion in Whitney v. California, 29 Wm. & Mary L. Rev. 653 (1988) (offering HistoriCal background on the Whitney case).
43. See Tussman & tenBroek, supra note 1, at 343. For a critique of this Textualist strand of thought, see infra Part IV.
44. Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 559 (Boston, Little, Brown, & Co., 7th ed. 1903) (1868) (quotation error in original) (quoting John Locke, two Treatises of Government 363 (Peter Laslett ed., CAmbridge Univ. Press, Rev. ed. 1988) (1690)).
45. See WilliAm E. Nelson, The Fourteenth Amendment: From PolitiCal Principle to Judicial Doctrine 43-44 (1988) (reporting that Northerners objected to the Black Codes in part out of fear "that if the South were 'reconstructed upon the principle that the rights of any class. .. depended upon race or color, we may well expect that the two opposite principles will produce conStant agitation and struggle for supremacy, until it culminates in a resort to arms'" (internal quotation marks omitted)); Collins Denny, Jr., The Growth and Development of the Police Power of the State, 20 Mcih. L. Rev. 173, 189 (1921).
46. Ernst Freund, the Police Power: Public Policy and Constitutional Rights § 611, at 633 (1904).
47. For documentation of this History, see Howard Gillman, the Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence 22-33 (1993).
48. Nelson, supra note 23, at 176-77.
49. Saunders, supra note 7, at 255-58.
50. Locke, supra note 22, at 363. Justice Cooley would later use Locke's phrase in his own treatise. See supra Text accompanying note 22.
51. Pa. Const. of 1776, art. V (Decl. of Rights), reprinted in 8 Sources and Documents of United States Constitutions 278 (WilliAm F. Swindler ed., 1979)
52. see also, e.g., VT. CONST. of 1777, art. VI (adopting language identiCal to the Pennsylvania Constitution of 1776).
53. Mcihael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 Law & Hist. Rev. 293, 318 (1985).
54. Andrew Jackson, Veto Message (July 10, 1832), in 3 A Compilation of the Messages and Papers of the Presidents: 1789-1897, at 1139, 1153 (JAmes D. Richardson ed., 1896).
55. Yudof, supra note 7, at 1375 (citing F.A. Hayek, The Constitution of Liberty 188 (1960)).
56. WilliAm Leggett, Editorial, MonoPolies, N.Y. Evening Post, Nov. 29, 1834, reprinted in 1 WilliAm Leggett, A Collection of the PolitiCal Writings of WilliAm Leggett 83, 85 (Theodore Sedgwick, Jr., ed., New York, Taylor & Dodd, 1840).
57. See generally Alan Jones, Thomas M. Cooley and "Laissez-Faire Constitutionalism": A Reconsideration, 53 J. Am. Hist. 751 (1967) (discussing Justice Cooley's views on partial legislation).
58. Bank of the State v. Cooper, 10 Tenn. (2 Yer.) 599, 605 (1831). Other leading cases include: Regents v. WilliAms, 9 G. & J. 365, 412 (Md. 1838)
59. Holden v. JAmes, 11 Mass. (11 Tyng) 396, 402 (1814)
60. Wally's Heirs v. Kennedy, 10 Tenn. (2 Yer.) 554, 555 (1831)
61. Vanzant v. Waddel, 10 Tenn. (2 Yer.) 260, 270 (1829) (Catron, J., concurring)
62. Ward v. Barnard, 1 Aik. 121, 123 (Vt. 1825). For a discussion of the early cases, see Rodney L. Mott, Due Process of Law: A HistoriCal and AnalytiCal Treatise of the Principles and Methods Followed by the Courts in the Application of the Concept of the "Law of the Land" 256-74 (1926).
63. Cooper, 10 Tenn. (2 Yer.) at 606; see also Ward, 1 Aik. at 123. In Ward, counsel argued, "If the legislature have power to select any individual, as the object of particular legislation, and exempt him from obligations to which all others are subject, it may be the instrument of the grossest favouritism; or, in times of PolitiCal excitement, of the most cruel persecution." Id.
64. People ex rel. Detroit & Howell R.R. Co. v. Twp. Bd., 20 Mcih. 452, 486-87 (1870)
65. see also, e.g., Ho Ah Kow v. Nunan, 12 F. Cas. 252, 255-57 (C.C.D. Cal. 1879) (striking down special legislation against aliens)
66. Ex parte Westerfield, 55 Cal. 550, 551 (1880) (en banc) (striking down a Sunday Law)
67. Lombard v. Antioch Coll., 19 N.W. 367, 370 (Wis. 1884) (rejecting a classlegislation argument)
68. Britton A. Hill, Liberty and Law, or, Outlines of a New System for the Organization and Administration of Federative Government vi (St. Louis, G.I. Jones and Co., 2d Rev. ed. 1880) (decrying the "tyrannies of money-power, of monoPolies, and of class legislation").
69. One might argue that both Standards address governance. The principal distinction we are making here is between a Standard that focuses on the Textual virtues of logiCal symmetry and a Standard that focuses outside the judiciary to concern itself with the legislature and with judicial-legislative interaction.
70. Embedded constitutionalism refers to a constitutionalism that is maintained not by judicial action but by institutions other than the courts. The term was first used, we believe, by Professors Joanne Scott and Jane Holder in their article Law and New Environmental Governance in the European Union
71. Joanne Scott & Jane Holder, Law and New Environmental Governance in the European Union, in Law and New Governance in the Eu and the US 210, 238-39 (Gráinne de Búrca & Joanne Scott eds., 2006).
72. Professor Anuj Desai has argued that the First Amendment sustained itself in early America because the post office adopted, in essence, First Amendment values, thus embedding the Amendment within an institution other than the courts
73. Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 Stan. L. Rev. 553, 557 (2008).
74. See Derrick A. Bell, Jr., Comment, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518, 523 (1980).
75. In the Text, we have emphasized U.S. Supreme Court decisions, but as the footnotes demonstrate, the doctrine of class legislation was widely accepted throughout the United States in state courts. 39. Barbier v. Connolly, 113 U.S. 27 (1884).
76. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
77. Holden v. Hardy, 169 U.S. 366 (1898).
78. Barbier, 113 U.S. at 32.
79. Many federal cases during this period invoked the class-legislation principle. E.g., Gulf, Colo. & Santa Fé Ry. Co. v. Ellis, 165 U.S. 150, 155-56 (1897)
80. ("The differences which will support class legislation must be such as in the nature of things furnish a reasonable basis for separate Laws and Regulations." (quoting State v. Loomis, 22 S.W. 350, 351 (Mo. 1893)))
81. Marchant v. Pa. R.R. Co., 153 U.S. 380, 390 (1894) (citing and applying Barbier, 113 U.S. at 32)
82. McPherson v. Blacker, 146 U.S. 1, 39 (1892) (describing class legislation as "[t]he inhibition that no State shall deprive any person within its jurisdiction of the equal protection of the Laws" and explaining that it was "designed to pRevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation")
83. MinneaPolis & St. Louis Ry. Co. v. Beckwith, 129 U.S. 26, 29-30 (1889) (citing and applying Barbier, 113 U.S. at 32)
84. Hayes v. Missouri, 120 U.S. 68, 72 (1887) (sAme); The Civil Rights Cases, 109 U.S. 3, 24 (1883) ("What is Called class legislation would belong to this category, and would be obnoxious to the prohibitions of the Fourteenth Amendment. .. .").
85. See, e.g., Hawkins v. Roberts & Son, 27 So. 327, 332 (Ala. 1899) (quoting Barbier, 113 U.S. at 32)
86. In re Morgan, 58 P. 1071, 1081-82 (Colo. 1899) ("The legislature has no right to deprive one class of persons of privileges allowed to other persons under like conditions." (quoting Ritchie v. People, 40 N.E. 454, 456 (Ill. 1895)));
87. Ritchie, 40 N.E. at 456 ("The 'Law of the land' is 'general public Law, binding upon all the members of the community, under all circumStances, and not partial or private Laws, affecting the rights of private individuals, or classes of individuals.'" (quoting Millett v. People, 7 N.E. 631, 633 (Ill. 1886)))
88. State v. Haun, 59 P. 340, 344 (Kan. 1899) ("The rights of every individual must Stand or fall by the sAme rule of Law. .. ." (quoting State v. Goodwill, 10 S.E. 285, 286 (W. Va. 1889)));
89. Leavitt v. Canadian Pac. Ry. Co., 37 A. 886, 887-88 (Me. 1897) (quoting Barbier, 113 U.S. at 32); Messenger v. Teagan, 64 N.W. 499, 501 (Mcih. 1895) (sAme);
90. People v. Bellett, 57 N.W. 1094, 1094 (Mcih. 1894) ("By class legislation, we underStand such legislation as denies rights to one which are accorded to others, or inflicts upon one individual a more severe penalty than is imposed upon another, in like case, offending.")
91. Low v. Rees Printing Co., 59 N.W. 362, 364 (Neb. 1894) (quoting Cooley, supra note 22, on class legislation)
92. Brim v. Jones, 39 P. 825, 826 (Utah 1895) (quoting Barbier, 113 U.S. at 32)
93. Va. Dev. Co. v. Crozer Iron Co., 17 S.E. 806, 807-08 (Va. 1893) (rejecting a class-legislation challenge because Barbier allows class legislation that falls within the Police power).
94. Peel Splint Coal Co. v. State, 15 S.E. 1000, 1005 (W. Va. 1892) ("Class legislation, founded upon any distinctions of rank or wealth, is contrary to the genius of our institutions.")
95. Goodwill, 10 S.E. at 286 ("[C]lass legislation. .. [is] obnoxious to the prohibitions of the fourteenth Amendment." (internal quotation marks omitted) (quoting The Civil Rights Cases, 109 U.S. at 24))
96. Bittenhaus v. Johnston, 66 N.W. 805, 806 (Wis. 1896) (quoting Barbier, 113 U.S. at 32);
97. In re Garrabad, 54 N.W. 1104, 1106-07 (Wis. 1893) (sAme).
98. Cooley, supra note 22, at 391-92.
99. Ritchie, 40 N.E. at 456 (quoting Millett, 7 N.E. at 633).
100. Peel Splint Coal Co., 15 S.E. at 1005.
101. Haun, 59 P. at 344 (quoting Goodwill, 10 S.E. at 286).
102. Barbier, 113 U.S. 27, was cited 175 times in state and federal courts before 1900; by 1935, it had been cited over 900 times in state and federal courts. LEXIS, Federal and State Cases, Combined, search between January 1, 1884, and December 31, 1899, with the Barbier citation; and search between January 1, 1884, and December 31, 1934, with the Barbier citation.
103. Barbier, 113 U.S. at 29.
104. See 11 Jay Hakim & Steven Mintz, A History of US: Sourcebook and Index 172 (1999) ("This case established the principle that a Law that appears to be racially neutral on the surface is unconstitutional if it is applied in a discriminatory manner.").
105. See, e.g., Dobbins v. Los Angeles, 195 U.S. 223, 240 (1904) (declaring that Police power does not justify discrimination against a "class" and citing Yick Wo v. Hopkins, 118 U.S. 356 (1886))
106. Burdick, supra note 13, § 279, at 593 (citing Yick Wo with Barbier and its classic statements against "class legislation")
107. John S. Wise, A Treatise on American Citizenship 211-12 (1906) (citing Yick Wo with Barbier and stating that the case stood for the principle that "to deny to a class" equal protection violated the Fourteenth Amendment).
108. Yick Wo, 118 U.S. at 357.
109. Giles v. Harris, 189 U.S. 475, 478 (1903) (reprinting the statement of Wilford H. Smith, counsel for the appellant).
110. Holden v. Hardy, 169 U.S. 366 (1898).
111. See, e.g., Ex parte Jentzsch, 44 P. 803, 805 (Cal. 1896) (striking down a Law barring barbers from working on Sundays as class legislation)
112. In re Morgan, 58 P. 1071, 1072, 1084 (Colo. 1899) (striking down a Law that limited the workday of smelters and miners working in underground mines to eight hours as class legislation)
113. In re Eight-Hour Law, 39 P. 328, 329 (Colo. 1895) (per curiAm) (striking down a Law prohibiting mining and manufacturing companies from contracting with their employees for a workday longer than eight hours as "manifestly in violation of the constitutional inhibition against class legislation")
114. Eden v. People, 43 N.E. 1108, 1111 (Ill. 1896) (same)
115. State v. Haun, 59 P. 340, 346 (Kan. 1899) (striking down a law that required workers to be paid in money rather than scrip for creating a class distinction)
116. State v. Granneman, 33 S.W. 784, 785 (Mo. 1896) (striking down a Law barring barbers from working on Sundays as class legislation)
117. Low v. Rees Printing Co., 59 N.W. 362, 368 (Neb. 1894) (striking down a Law prohibiting mechanics, servants, and laborers-not including farm or domestic laborers-from working more than eight hours per day).
118. For a contemporary description of the case Law in greater detail, see generally Henry R. Seager, The Attitude of American Courts Towards Restrictive Labor Laws, 19 Pol. Sci. Q. 589 (1904).
119. Holden, 169 U.S. at 367.
120. See, e.g., Halbert v. Mcihigan, 545 U.S. 605, 610-11 (2005) (explaining the difference between the equal protection and due process concerns involved in the case).
121. See, e.g., Gundling v. Chicago, 177 U.S. 183, 188 (1900) ("Regulations respecting the pursuit of a Lawful trade or business are of very frequent occurrence. .. and what such Regulations shall be. .. are questions for the State to determine, and their determination comes within the. .. Police power. .. unless the Regulations are so utterly unreasonable and extravagant. .. that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of Law. .. ."). For other citations of this rule, see infra note 85.
122. Freund, supra note 24, § 611, at 632. Indeed, this underStanding lived on for quite some time. As Chief Justice Taft would later explain, in 1921, it was "custoMary" for the two arguments to be considered together. Truax v. Corrigan, 257 U.S. 312, 331-32 (1921).
123. Holden, 169 U.S. at 397-98.
124. In re Eight-Hour Law, 39 P. 328, 329 (Colo. 1895) (per curiAm) (striking down a Law prohibiting mining and manufacturing companies from contracting with their employees for a workday longer than eight hours as "manifestly in violation of the constitutional inhibition against class legislation")
125. Low v. Rees Printing Co., 59 N.W. 362, 368 (Neb. 1894) (striking down a Law prohibiting mechanics, servants, and laborers-not including farm or domestic laborers-from working more than eight hours per day).
126. See Holden, 169 U.S. at 388.
127. Atchison, Topeka & Santa Fé R.R. Co. v. Matthews, 174 U.S. 96 (1899).
128. See id. at 97.
129. See id.
130. Gulf, Colo. & Santa Fé Ry. v. Ellis, 165 U.S. 150 (1897).
131. Matthews, 174 U.S. at 110-11 (Harlan, J., dissenting).
132. The focus on exemption was part of the general underStanding of "class legislation." See, e.g., United States v. Sugar, 243 F. 423, 430 (E.D. Mcih. 1917) ("It is therefore unnecessary to consider the questions whether such exemptions are such arbitrary discriminations as to render such statute class legislation. .. .")
133. Kendall v. People, 125 P. 586, 587 (Colo. 1912) ("[S]uch exemption rendered the act special or class legislation inhibited by the Constitution of Colorado. .. .");
134. Alpheus T. Mason, The Labor Clauses of the Clayton Act, 18 Am. Pol. Sci. Rev. 489, 509 (1924) ("[T]he principle against class legislation would not permit [Congress] to give to laborers, or any other particular class, special exemptions under the antitrust Laws.").
135. A number of HistoriCal investigations have established this, beginning with that of Professor Charles Warren. See Charles Warren, The Progressiveness of the United States Supreme Court, 13 Colum. L. Rev. 294, 294-95 (1913)
136. see also Ray A. Brown, Due Process of Law, Police Power, and the Supreme Court, 40 Harv. L. Rev. 943, 944 (1927) ("[S]ince 1920 the Court has passed on [cases involving subStantive legislation of a social or economic character] in fifty-three cases, and has held against the legislation in fifteen of them.")
137. Mcihael J. Phillips, The Progressiveness of the Lochner Court, 75 DENV. U. L. Rev. 453, 454 (1998) ("[I]t is widely recognized that the old Court rejected more subStantive due process challenges than it granted. .. .")
138. Melvin I. Urofsky, Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era, 1983 Y.B., Supreme Court Hist. Soc'y 53, 69 ("In areas of maximum hours and minimum wages, employer liability and workmen's compensation, and state child labor Regulation, the Court during the Progressive era nearly always supported reform efforts." (footnote omitted))
139. Charles Warren, A Bulwark to the State Police Power- The United States Supreme Court, 13 Colum. L. Rev. 667, 669 (1913) ("'Due process' and the 'Police power' both being indefinite terms, the Court has exercised a wide discretion in enlarging the scope of both in favor of the State."). These empirics are controversial on two grounds. First, numbers are not everything, and, as critics rightly claim, numbers do not reflect the degree to which a decision was Legally or PolitiCally controversial and thus shed a negative shadow on legislatures or important public affairs. In fact, as one of us has argued elsewhere, the Supreme Court's labor decisions were extremely controversial and had an enormous impact on the right to unionize and to strike.
140. Victoria F. Nourse, A Tale of Two Lochners, 97 Cal. L. Rev. (forthcoming 2009) (manuscript at 48-53, on file with the Duke Law Journal). Second, critics have urged that the numbers reflect a purely internalist, doctrinal view, which is HistoriCally misleading.
141. See, e.g., Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. PA. L. Rev. 971, 1019 (2000) [hereinafter Friedman, History of the Countermajoritarian Difficulty] (noting public criticism of the doctrine). For a critique of the numbers
142. see Paul Kens, The Source of a Myth: Police Powers of the States and Laissez Faire Constitutionalism, 1900-1937, 35 Am. J. Legal Hist. 70, 72 (1991).
143. For the most balanced view of this period, see generally Lawrence Friedman, American Law in the 20th Century 44-79 (2002) [hereinafter Friedman, American Law]. For clarification of the figure of "over two hundred" Laws struck down, which appears in Textbooks, see Nourse, supra (manuscript at 47-48).
144. Some of the more infAmous cases of the 1920s tend to leave the impression that an absolute property or contract right existed. See, e.g., Adkins v. Children's Hosp., 261 U.S. 525, 546 (1923) ("[F]reedom of contract is, nevertheless, the general rule and restraint the exception. .. ."). But classic cases often leave a false impression of the general run-of-the-mine doctrine. At the time, the general rule was that rights, even personal rights, could be trumped by the common welfare.
145. See, e.g., Schmidinger v. City of Chi., 226 U.S. 578, 587 (1913) ("The right of state legislatures or municipalities acting under state authority to Regulate trades and Callings in the exercise of the Police power is too well settled to require any extended discussion.")
146. Chi., Burlington & Quincy R.R. Co. v. McGuire, 219 U.S. 549, 567 (1911) ("There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision. .. the making of contracts. ... Liberty implies the absence of arbitrary restraint, not immunity from reasonable Regulations and prohibitions imposed in the interests of the community.")
147. WilliAms v. Arkansas, 217 U.S. 79, 90 (1910) ("It is a principle which underlies every reasonable exercise of the Police power that private rights must yield to the common welfare." (quoting WilliAms v. State, 108 S.W. 838, 840 (Ark. 1908)))
148. Manigault v. Springs, 199 U.S. 473, 480 (1905) ("[T]he Police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is parAmount to any rights under contracts between individuals." (emphasis added));
149. Smith v. Command, 204 N.W. 140, 142 (Mcih. 1925) ("[N]o citizen has any rights superior to the common welfare. Acting for the public good, the state, in the exercise of its Police powers, may always impose reasonable restrictions upon the natural and constitutional rights of its citizens.")
150. see also Nourse, supra note 5, at 16 ("Before World War II, what we now consider basic civil rights were often weak, easily overcome by the needs of the common welfare, then Called the 'Police power.'")
151. Nourse, supra note 84 (manuscript at 2-3) ("[R]ights could be trumped easily by claims of the general welfare. .. .").
152. See, e.g., Gilbert E. Brach, Is There Danger Ahead?, 6 Marq. L. Rev. 152, 155 (1921) (stating that when a body or group, such as laborers or farmers, combines to legislate its economic superiority, then "democracy is lost");
153. John F. Dillon, Property-Its Rights and Duties in Our Legal and Social Systems, Address Before the New York State Bar Association (Jan. 15, 1895), in 29 Am. L. Rev. 161, 173 (1895) ("The one thing to be feared in our democratic republic, and therefore to be guarded against with sleepless vigilance, is class power and class legislation.")
154. Thomas R. Marshall, The Enemies of Free Government in America, 5 B.U. L. Rev. 153, 156 (1925) (arguing that class legislation and the "class idea" will destroy democracy).
155. Gunther, supra note 1, at 42; see also AviAm Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921, 5 Law & Hist. Rev. 249, 250 (1987) ("Lochner. .. is still shorthand in constitutional Law for the worst sins of subjective judicial activism.").
156. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 939-40 (1973).
157. Roe v. Wade, 410 U.S. 113 (1973).
158. See, e.g., Gillman, supra note 25, at 1
159. Nourse, supra note 84 (manuscript at 2-3, 44-46).
160. White, supra note 16, at 87 n.2.
161. See id. at 93-103. Some believe that Lochner is in fact consistent with the classlegislation tradition. See, e.g., Gillman, supra note 25, at 132. We believe that this claim is exaggerated. Lochner was a Standard Police-power case of the day. See Nourse, supra note 84 (manuscript at 17-21); infra Part II.C.
162. In fact, the incidence of the term increased subStantially from the last decade of the nineteenth to the first decade of the twentieth century. In the period from 1900 until 1910, the term "class legislation" appeared in federal and state court opinions 410 times, whereas the sAme search yielded 221 opinions in the period from 1890 through 1900. Those numbers likely underestimate the incidence of the doctrine as, in state courts, it often went by the nAme of "special legislation" as well. LEXIS, Federal and State Cases, Combined, searches between January 1, 1900, and December 31, 1910, and between January 1, 1890, and December 31, 1900, using the "opinion" segment to avoid "counsel" references, with the term "class legislation."
163. Freund, supra note 24, § 610, at 631.
164. Holden v. Hardy, 169 U.S. 366, 398 (1898).
165. Freund, supra note 24, § 610, at 632.
166. Cotting v. Kan. City Stock Yards Co., 183 U.S. 79 (1901).
167. Connolly v. Union Sewer Pipe Co., 184 U.S. 540 (1902).
168. From 1905 to 1930, Lochner was cited 264 times, Cotting was cited 343 times, and Connolly was cited 523 times. LEXIS, Federal and State Cases, Combined, search between January 1, 1905, and December 31, 1930, for the Lochner citation ("198 U.S. 45"), the Cotting citation ("183 U.S. 79"), and the Connolly citation ("184 U.S. 540").
169. Cotting, 183 U.S. at 79-80.
170. Vanzant v. Waddel, 10 Tenn. (2 Yer.) 260 (1829).
171. Cotting, 183 U.S. at 105 (quoting Vanzant, 10 Tenn. (2 Yer.) at 270).
172. Owen M. Fiss, History of the Supreme Court of the United States: Troubled Beginnings of the Modern State, 1888-1910, at 158-65 (1993).
173. Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 554 (1902) ("The provisions of this act shall not apply to agricultural products or live stock while in the hands of the producer or raiser." (quoting 1893 Ill. Laws 182)).
174. The Court observed, We have seen that under that statute all except producers of agricultural commodities and raisers of live stock, who combine their capital, skill or acts for any of the purposes nAmed in the act, may be punished as criminals, while agriculturalists and live stock raisers, in respect of their products or live stock in hand, are exempted from the operation of the statute, and may combine and do that which, if done by others, would be a crime against the State. Id. at 560. It concluded, "[W]e must hold that the legislature would not have entered upon or continued the Policy indicated by the statute unless agriculturalists and live stock dealers were excluded from its operation and thereby protected from prosecution." Id. at 565.
175. See White, supra note 90, at 246 ("One exAmple of such tyranny or corruption was legislation that violated the 'anti-class' principle by failing to demonstrate that it was an appropriately 'general' use of the Police powers, as distinguished from an inappropriately 'partial' one. That type of legislation Amounted to the favoring of one class or interest above another. .. .").
176. The reference to communism and socialism was a common one. See, e.g., C.G. Haines, Note, Minimum Wage Act for District of Columbia Held Unconstitutional, 2 Tex. L. Rev. 99, 100-01 (1923) ("All such legislation has as its design to level inequalities of wealth, is socialistic in its trend, and leads to the dangers of bolshevism and Revolution. 'The tendency of the times,' said [Justice Van Orsdel], 'to socialize property rights under the subterfuge of Police Regulations is dangerous, and if continued will prove destructive to our free institutions.'" (quotation error in original) (emphasis added) (quoting Children's Hosp. v. Adkins, 284 F. 613, 622 (D.C. Cir. 1922)))
177. see also Mountain Timber Co. v. Washington, 243 U.S. 219, 223 (1917) (reporting plaintiff's counsel's argument that "[t]he Fourteenth Amendment was adopted to preclude such philanthropic interference with the liberty of a self-reliant race. If the centralized advantages of communism or socialism are deemed preferable, the Constitution provides a method of Amendment resulting in certainty of right" (emphasis added))
178. United States v. Joint Traffic Ass'n, 171 U.S. 505, 546 (1898) (reporting the solicitor general's argument that "[u]ndoubtedly there is unrest, dissatisfaction, tendencies to anarchy and socialism, but these result not from competition, but the throttling of competition by trusts and combinations" (emphasis added))
179. Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 674 (1895) (Harlan, J., dissenting) ("It was said in argument that the passage of the statute imposing this income tax was an assault by the poor upon the rich, and by much eloquent speech this court has been urged to Stand in the breach for the protection of the just rights of property against the advancing hosts of socialism." (emphasis added)).
180. See supra notes 87-93 and accompanying Text.
181. See, e.g., Gillman, supra note 25, at 128 (noting that the majority opinion did not "explicitly rely on the language of unequal, partial, or class legislation in striking down the New York act" but rather focused on the right to contract); White, supra note 16, at 100 ("The Court's majority decision in Lochner. .. has been characterized as an exAmple of judicial invocation of the doctrine of 'liberty of contract'. .. .").
182. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). Holmes's fAmous reference to Herbert Spencer's Social Statics, see id., was to a by-then outmoded PolitiCal theory: the best state is the state that governs the least, see Herbert Spencer, Social Statics: Or, the Conditions Essential to Human Happiness Specified, and the First of them Developed 321 (New York, D. Appleton & Co. 1850) ("Thus, if we Regard government as a means of upholding the social state, we find that. .. there are several subsidiary ways in which the assumption of additional functions endangers the fulfilment [sic] of its original function.").
183. On Holmes's devotion to deference to legislatures, see Felix Frankfurter, Mr. Justice Holmes and the Supreme Court 31 (1938).
184. See, e.g., Buck v. Bell, 274 U.S. 200, 208 (1927) ("[T]he Law does all that is needed when it does all that it can, indicates a Policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow.")
185. Dominion Hotel, Inc. v. Arizona, 249 U.S. 265, 268 (1919) ("The equal protection of the Laws does not mean that all occupations that are Called by the sAme nAme must be treated in the sAme way.. .. It may do what it can to pRevent what is deemed an evil and stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rule laid down were made mathematiCally exact.")
186. Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224, 227 (1914) ("[W]hile there are differences of opinion as to the degree and kind of discrimination permitted by the Fourteenth Amendment, it is established by repeated decisions that a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up and enumerating other instances to which it might have been applied equally well, so far as the court can see. That is for the legislature to judge unless the case is very clear.")
187. Cent. Lumber Co. v. South Dakota, 226 U.S. 157, 160-61 (1912) ("If a class is deemed to present a conspicuous exAmple of what the legislature seeks to pRevent, the Fourteenth Amendment allows it to be dealt with although otherwise and merely logiCally not distinguishable from others not embraced in the Law." (citing Carroll v. Greenwich Ins. Co., 199 U.S. 401, 411 (1905))).
188. A simple search for "equal protection" during this timefrAme resulted in 275 cases. LEXIS, U.S. Supreme Court Cases, Lawyers' Edition, search between January 1, 1900, and December 31, 1910, with the term "equal protection." The results included numerous inStances of the Court rejecting equal protection claims. E.g., Mobile, Jackson & Kan. City R.R. Co. v. Turnipseed, 219 U.S. 35, 40 (1910) (holding that a Mississippi statute abrogating the common Law "fellow-servant rule as to 'every [employee] of a railroad corporation'" did not violate equal protection and noting that the Court "has never. .. construed the limitation imposed by the Fourteenth Amendment upon the power of the State to legislate with reference to particular employments as to render ineffectual a general classification resting upon obvious principles of public Policy because it may happen that the classification includes persons not subject to a uniform degree of danger" (quoting MISS. CODE of 1892, § 3559))
189. Griffith v. Connecticut, 218 U.S. 563, 571 (1910) (holding that a statute exempting banks or trust companies and bona fide mortgages from a different statute prohibiting more than 15 percent interest on loans did not violate equal protection)
190. Moffitt v. Kelly, 218 U.S. 400, 405-06 (1910) (holding that the Court did not have the power to Review an equal protection challenge to a statute subjecting a wife's inheritance to community property Laws)
191. District of Columbia v. Brooke, 214 U.S. 138, 152 (1909) (holding that a Law making resident owners of property criminally liable for failing to connect to the city sewer but assessing dAmages against the property of nonresident owners did not violate equal protection)
192. Welch v. Swasey, 214 U.S. 91, 107-08 (1909) (holding that a Massachusetts Law limiting the height of all buildings to 125 feet above the grade of the street, enacted under the Police power, did not violate equal protection)
193. Mobile, Jackson & Kan. City R.R. Co. v. Mississippi, 210 U.S. 187, 205 (1908) (rejecting an equal protection challenge to a statute requiring railroads to broaden and Standardize a narrow-gauge road and stating "[t]hat it denies the companies the equal protection of the Law, we may say, is without any foundation" and "[n]o discrimination against them is pointed out")
194. Thompson v. Kentucky, 209 U.S. 340, 348 (1908) (holding that a Law taxing distilled spirits in bonded warehouses did not violate equal protection);
195. The Employers' Liability Cases, 207 U.S. 463, 503-04 (1908) (rejecting a railroad's equal protection challenge to a wrongful death statute);
196. Atl. Coast Line R.R. Co. v. N.C. Corp. Comm'n, 206 U.S. 1, 25 (1907) (concluding that the North Carolina Corporation Commission's order that a railroad restore a principal connection between the eastern and western parts of the state did not violate equal protection)
197. Gatewood v. North Carolina, 203 U.S. 531, 542-43 (1906) (rejecting an argument that classifications in a North Carolina Law prohibiting the operation of a "bucket shop" rendered the Law unconstitutional);
198. Nw. Nat'l Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906) (holding that a Missouri statute precluding life insurance companies, domestic or foreign, from asserting a defense based on the false and fraudulent statements in the application did not violate equal protection)
199. St. John v. New York, 201 U.S. 633, 636-37 (1906) (holding that a statute distinguishing between producing and nonproducing vendors of milk did not violate equal protection)
200. McChord v. Louisville & Nashville R.R. Co., 183 U.S. 483, 495 (1902) (rejecting an argument that a Kentucky statute setting railroad rates violated equal protection)
201. Murdock v. Ward, 178 U.S. 139, 147 (1900) (rejecting an allegation that an internal Revenue tax violated equal protection).
202. References in federal and state opinions to "class legislation" from 1910 through 1920 hovered at about four hundred, as they did from 1900 through 1910. LEXIS, Federal and State Cases, Combined, search between January 1, 1910, and December 31, 1920, and between January 1, 1900, and December 31, 1910, using the "opinion" segment to avoid "counsel" references, with the term "class legislation."
203. State v. Nashville, C. & St. L. Ry. Co., 135 S.W. 773, 776 (Tenn. 1911).
204. See, e.g., State v. McGuire, 167 N.W. 592, 594 (Iowa 1918) (rejecting an argument that an Iowa statute made an unconstitutional distinction between owners of male horses and owners of bulls and boars offered for sale)
205. Schulz v. Parker, 139 N.W. 173, 178-79 (Iowa 1912) (rejecting an argument that a statute prohibiting railway companies from giving free passes constituted class legislation)
206. Hubbell v. Higgins, 126 N.W. 914, 916 (Iowa 1910) (rejecting an argument that a statute providing for inspection of hotels accommodating ten or more guests was unconstitutional class legislation and stating that "[c]lassification must be reasonable and based upon real differences in the situation, conditions, and tendencies of things" because "[i]f there is no real difference between persons, occupations, or property, the state cannot make one in favor of some persons over others")
207. McGuire v. Chi., B. & Q. R. Co., 108 N.W. 902, 906 (Iowa 1906) ("That legislation imposing upon railway companies special restrictions, obligations, and liabilities not generally applicable to other persons or corporations is not a denial of the equal protection of the Laws has been so often decided as to be no longer a debatable question.")
208. Mier v. Phillips Fuel Co., 107 N.W. 621, 625 (Iowa 1906) ("Nor do we think this statute open to the criticism that it is class legislation. Its object is the protection of landowners against subsurface encroachments. It extends to all who operate coal mines, at least, and protects all from whose land coal is taken without their consent. Such classification is uniformly upheld for not only all persons brought under its influence are treated alike under the sAme conditions but all are brought within its influence who are under the sAme conditions.")
209. Iowa Mut. Tornado Ins. Ass'n v. Gilbertson, 106 N.W. 153, 156 (Iowa 1906) (rejecting a classlegislation argument)
210. Gano v. MinneaPolis & St. L. R. Co., 87 N.W. 714, 719 (Iowa 1901) (holding that a statute requiring railroad companies exercising the power of eminent domain to pay landowners reasonable attorneys' fees incident to condemnation proceedings or appeals was not unconstitutional as class legislation because the burden imposed applied equally to all of a certain class exercising the power granted)
211. State v. Garbroski, 82 N.W. 959, 960 (Iowa 1900) (holding that a statute requiring certain peddlers to obtain a license was invalid and stating that "[t]he classification here attempted rests solely on a past and completed transaction, having no relation to the particular legislation enacted");
212. Rambo v. Larrabee, 73 P. 915, 918 (Kan. 1903) ("It is entirely competent for the Legislature to adapt its Laws, general in their nature, to general classifications either of individuals, surroundings, or conditions; but such classification must always be a natural one, not an arbitrary or fictitious one.")
213. State v. Smiley, 69 P. 199, 208 (Kan. 1902) (rejecting a class-legislation argument)
214. Criswell v. State, 94 A. 549, 551 (Md. 1915) (holding that a statute requiring a license fee of individuals working as barbers at the time the statute was enacted was not unconstitutional);
215. Groesbeck v. Detroit United Ry., 177 N.W. 726, 737-38 (Mcih. 1920) (rejecting a class-legislation argument over a strong dissent)
216. SeAmer v. Great N. Ry. Co., 172 N.W. 765, 770 (Minn. 1919) ("The constitutional prohibitions of class legislation are the sAme now as then. A marked change, however, has come in the view taken by the courts of the different states, and by the Supreme Court of the United States, and by our own, upon the question of what is a proper classification for legislative purposes. More and more the question is felt to be a legislative one which it is presumed the Legislature has rightly determined.")
217. Halsell v. Merchants' Union Ins. Co., 62 So. 235, 236 (Miss. 1913) ("Stripped of details, and of its Regulation, supervision, and license features, we find an effort to confer special immunities and privileges upon certain defined associations, engaged in the ordinary business of loaning money. This is to be accomplished by nAming the preferred class building and loan associations. The Law fixes the contractual limit of interest charges, and it was not within the power of the Legislature to exempt, by special act, the associations and corporations defined from the general Law, under the guise of an artificial and purely imaginary special classification of the preferred class.")
218. Mo., K. & T. Ry. Co. v. Braddy, 135 S.W. 1059, 1060 (Tex. Civ. App. 1911) ("[I]t is insisted that said article is unconstitutional because it is class legislation. ... This assignment must be sustained.").
219. Payne v. Kansas, 248 U.S. 112 (1918).
220. The leading case suggesting the state's power to classify was Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911) ("A classification having some reasonable basis does not offend [equal protection]. ... [I]f any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the Law was enacted must be assumed.").
221. Johnston v. Kennecott Copper Corp., 248 F. 407 (9th Cir. 1918).
222. Heffernan v. Chester-CAmbridge Bank & Trust Co., 91 A. 385, 389 (Del. 1914). For similar state court cases during this period dealing with class-legislation arguments, see Leonard v. Am. Life & Annuity Co., 77 S.E. 41, 42 (Ga. 1913);
223. State v. Horn, 152 P. 275, 276-79 (Idaho 1915);
224. Casparis Stone Co. v. Indus. Bd., 115 N.E. 822, 822-23 (Ill. 1917);
225. People v. Gordon, 113 N.E. 864, 865-70 (Ill. 1916).
226. Burdick, supra note 13, § 279, at 593 ("It has been for the protection of civil rights that the equal protection clause has been resorted to. .. .").
227. See Kenneth W. Simons, Equality as a Comparative Right, 65 B.U. L. Rev. 387 passim (1985) [hereinafter Simons, Equality]
228. Kenneth W. Simons, The Logic of Egalitarian Norms, 80 B.U. L. Rev. 693 passim (2000) [hereinafter Simons, Egalitarian Norms]
229. Cass R. Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873, 883-902 (1987)
230. Peter Westen, The Empty Idea of Equality, 95 Harv. L. Rev. 537 passim (1982).
231. Brown, supra note 1, at 1531.
232. Truax v. Raich, 239 U.S. 33 (1915).
233. On the influence of free-labor ideology, see generally Nelson, supra note 23, at 16; WilliAm E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Gilded Age, 1985 WIS. L. Rev. 767.
234. Raich, 239 U.S. at 41.
235. See, e.g., Gong Lum v. Rice, 275 U.S. 78, 86-87 (1927) (upholding a state's power to exclude children of Chinese descent from white schools)
236. Corrigan v. Buckley, 271 U.S. 323, 327, 330 (1926) (upholding a racially restrictive covenant between individuals);
237. Porterfield v. Webb, 263 U.S. 225, 232-33 (1923) (upholding a California Law denying aliens ineligible for citizenship the right to lease or own land)
238. Terrace v. Thompson, 263 U.S. 197, 217 (1923) (upholding a Washington Law denying the aliens the right to own land unless they have declared "in good faith" their intent to become citizens of the United States)
239. United States v. Bhagat Singh Thind, 261 U.S. 204, 207 (1923) (allowing Congress to restrict the naturalization process to "white persons")
240. Berea Coll. v. Kentucky, 211 U.S. 45, 51, 57-58 (1908) (upholding a state Law prohibiting corporations from teaching black children and white children in the sAme institution).
241. Mcihael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 9 (2004) ("Scholars today tend to vilify the Court for its performance during this era.").
242. See Raich, 239 U.S. at 41 ("[T]he right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity. .. .").
243. Buchanan v. Warley, 245 U.S. 60 (1917).
244. Gong Lum v. Rice, 275 U.S. 78 (1927).
245. Berea Coll. v. Kentucky, 211 U.S. 45 (1908).
246. Gong Lum, 275 U.S. at 85-86; Berea Coll., 211 U.S. at 54.
247. Wilson v. Edwards, 32 Pa. Super. 295, 305 (Super. Ct. 1907).
248. See, e.g., Bailey v. AlabAma, 219 U.S. 219, 223 (1911) (argument for the United States) (peonage)
249. Hall v. De Cuir, 95 U.S. 485, 508 (1877) (transportation)
250. Bowie v. BirminghAm Ry. & Elec. Co., 27 So. 1016, 1020 (Ala. 1900) (transportation);
251. State v. Jenkins, 92 A. 773, 773 (Md. 1914) (transportation);
252. State v. Mo. Pac. R.R. Co., 147 S.W. 118, 120 (Mo. 1912) (peonage);
253. Chilton v. St. Louis & I. M. Ry. Co., 21 S.W. 457, 458-59 (Mo. 1893);
254. State ex rel. Davis-Smith Co. v. Clausen, 117 P. 1101, 1114 (Wash. 1911) (peonage).
255. See, e.g., JAmes F. Minor, Constitutionality of SegRegation Ordinances, 18 VA. L. Reg. 561, 564, 571 (1912) (arguing that such ordinances were constitutional "provided the accommodations [we]re equal," there was no "discrimination" and despite the principle that "all legislation which discriminates against any particular race or class of persons is in violation of the Constitution of the United States").
256. See Tussman & tenBroek, supra note 1, at 346 n.13 (citing exAmples).
257. Nourse, supra note 5, at 17-37.
258. See supra notes 111-12 and accompanying Text.
259. In the period from 1920 through 1930, the term "class legislation" appeared in state and federal opinions 322 times, as compared to the five hundred times it appeared in the earlier decades, see supra note 94. LEXIS, Federal and State Cases, Combined, search between January 1, 1920, and December 31, 1930, using the "opinion" segment to avoid "counsel" references, with the term "class legislation."
260. Burdick, supra note 13, § 282, at 604.
261. Truax v. Corrigan, 257 U.S. 312 (1921).
262. Friedman, American Law, supra note 84, at 75-76 ("The labor injunction had terrorized organized labor for some forty years.").
263. Corrigan, 257 U.S. at 332.
264. See supra notes 56-63 and accompanying Text.
265. See supra notes 68-74 and accompanying Text.
266. See supra notes 51-55 and accompanying Text.
267. Yu Cong Eng v. Trinidad (The Chinese Bookkeeping Cases), 271 U.S. 500 (1926).
268. Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389 (1928).
269. Power Mfg. Co. v. Saunders, 274 U.S. 490 (1927).
270. Kan. City S. Ry. Co. v. Rd. Improvement Dist. No. 6, 256 U.S. 658 (1921).
271. Nixon v. Herndon, 273 U.S. 536 (1927).
272. This was true of cases in the federal courts. See, e.g., Herbring v. Lee, 280 U.S. 111, 116 (1929) (reporting the petitioner's argument that a licensing requirement violated "class legislation")
273. Whitney v. California, 274 U.S. 357, 370-71 (1927) (rejecting the petitioner's argument that a criminal syndiCalism statute was "class legislation")
274. Twohy Bros. Co. v. Kennedy, 295 F. 462, 465-67 (9th Cir. 1924) (rejecting a claim that a Law holding an employer liable for injuries arising from conditions of a hazardous occupation violated equal protection)
275. Berlet v. Lehigh Valley Silk Mills, 287 F. 769, 771 (3d Cir. 1923) (affirming the state supreme court's decision that a Law giving a lien to "throwsters" of silk on silk thrown, retained, and returned was class legislation)
276. C. A. Weed & Co. v. Lockwood, 266 F. 785, 791-94 (2d Cir. 1920) (involving a challenge to the Lever Act as unconstitutional "class legislation")
277. Gloucester Seafood Workers' Ass'n v. Houston, 35 F.2d 193, 196 (E.D. Va. 1929) (rejecting a classlegislation argument)
278. Liberty Highway Co. v. Mcih. Pub. Utils. Comm'n, 294 F. 703, 709 (E.D. Mcih. 1923) (rejecting a class-legislation argument attacking Regulation of common carriers). This was true as well in the state courts.
279. See, e.g., Franchise Motor Freight Ass'n v. Seavey, 235 P. 1000, 1003-04 (Cal. 1925) (upholding a class-legislation challenge to Regulatory exemption)
280. Ex parte RAmeriz, 226 P. 914, 920 (Cal. 1924) (rejecting a class-legislation challenge to excluding aliens from gun ownership);
281. Montgomery v. Town of Branford, 147 A. 9, 10-11 (Conn. 1929) (striking down a tax as violating the rule of equal protection and class legislation)
282. Territory v. Armstrong, 28 Haw. 88, 93-97 (1924) (rejecting an argument that an adultery statute violated class legislation and equal protection because it treated men and women differently)
283. Ex parte Bottjer, 260 P. 1095, 1096 (Idaho 1927) (rejecting an argument that a statute applying only to bankers was improper class legislation)
284. Smallwood v. Jeter, 244 P. 149, 155 (Idaho 1926) (rejecting a challenge that exempting school buses violates class legislation)
285. People v. Sheldon, 152 N.E. 567, 568-69 (Ill. 1926) (rejecting a class-legislation challenge to a concealed-weapon Law)
286. Fountain Park Co. v. Hensler, 155 N.E. 465, 468 (Ind. 1927) (striking down a statute that granted eminent domain power to a religious entity as improper class legislation)
287. City of Springfield v. Smith, 19 S.W.2d 1, 7 (Mo. 1929) (striking down a statute barring the showing of motion pictures on Sundays as class legislation)
288. City of Seattle v. Gervasi, 258 P. 328, 332 (Wash. 1927) (rejecting an argument that a statute that barred selling groceries on Sunday was class legislation).
289. Terrace v. Thompson, 263 U.S. 197 (1923).
290. Buck v. Bell, 274 U.S. 200, 208 (1927).
291. Nourse, supra note 5, at 28, 185 nn.35-36; Stephen A. Siegel, Justice Holmes, Buck v. Bell, and the History of Equal Protection, 90 Minn. L. Rev. 106, 108, 124-31 (2005).
292. Buck, 274 U.S. at 208.
293. See supra notes 17, 94 and 118.
294. Tussmann & tenBroek, supra note 1, at 341.
295. See Thomas S. Kuhn, the Essential Tension: Selected Studies in Scientific Tradition and Change xii (1977) ("When reading the works of an important thinker, look first for the apparent absurdities in the Text and ask yourself how a sensible person could have written them. When you find an answer,. .. when those passages make sense, then you may find that more central passages, ones you pReviously thought you understood, have changed their meaning.").
296. Presentism, as used by Historians, refers to the tendency to look at the past through contemporary eyes: for exAmple, judging Henry Ford's Model T by the Standards of modern 300-horsepower engines. As Professor Larry KrAmer has quipped, no HistoriCal effort is ever immune from presentism. Larry KrAmer, Response, 81 CHI.-KENT. L. Rev. 1173, 1174 (2006) ("Historians are all and always presentist."). Yet, if a certain presentism is inevitable, Historians are at least trained to be conScious of their own temporal biases; Lawyers are trained to be oblivious to their temporal biases. The very structure of precedent makes presentism far more insistent for Lawyers than for Historians. Lawyers are taught to read cases as if they had no time, as if the words of 1861 could be immediately translated into the words of 1961. There are virtues to this, but there are also vices, and the vices include a structured forgetting of concepts that have no analogue in the present. It is precisely because judicial Review is so taken for granted, for exAmple, that no one would have thought, before KrAmer's book, that the "people themselves" might have exercised this power. Resisting presentism in this sense can enable Law to engage in discovery, asking new questions that the present cannot think to ask. See Larry KrAmer, The People Themselves: Popular Constitutionalism and Judicial Review 8 (2004) (noting that "final interpretive authority rested with 'the people themselves'" and surmising that by studying this period of popular constitutionalism, "we may find some reasons to reawaken our own seemingly deadened sensibilities in this respect").
297. Robert W. Gordon, Foreword: The Arrival of CritiCal Historicism, 49 Stan. L. Rev. 1023, 1023 (1997).
298. We see the move here as bidirectional. Doctrinal change tends to preserve the past, as Professor Siegel has so compellingly documented. Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1113 (1997). But doctrine and precedent also tend to preserve the present in the past, tending to take present controversies and transforming them into past ones, even if the past is radiCally different. See Nourse, supra note 84 (manuscript at 3).
299. Tussman & tenBroek, supra note 1; see also infra notes 198-205.
300. United States v. Carolene Products Co., 304 U.S. 144 (1938).
301. Professor John Hart Ely is considered the author of a PolitiCal-process theory of constitutional Review that seeks to justify the use of judicial Review to reinforce the representation of minorities. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 87-88 (1980) (summarizing "three arguments in favor of a participationoriented, representation-reinforcing approach to judicial Review").
302. Carolene Products, 304 U.S. 144 (1938), set forth an early version of this view in the most fAmous footnote in constitutional Law, which states that the Court may exercise greater powers of Review when minorities do not have sufficient PolitiCal power to make their views effective in the PolitiCal process, id. at 153 n.4. Some constitutionalists, such as Professor Geoffrey Miller, have argued that class legislation reflected an early version of modern public choice theory, which posits that government exists to benefit special interests. E.g., Geoffrey P. Miller, Public Choice at the Dawn of the Special Interest State: The Story of Butter and Margarine, 77 Cal. L. Rev. 83, 85, 124-26, 127 n.277 (1989).
303. See generally John Marquez Lundin, Making Equal Protection Analysis Make Sense, 49 Syracuse L. Rev. 1191 (1999) (tracing the History of equal protection).
304. Tussman & tenBroek, supra note 1, at 356.
305. See id. at 347 (diagrAms).
306. See supra note 112.
307. Professors Tussman and tenBroek recognize at one point that there was a "theory of legislation and the state" at stake in equal protection but explicitly reject what they Called "the pressure group theory," urging that this theory was incompatible with equal protection. Tussman & tenBroek, supra note 1, at 350. One (although not the only) way of reading this otherwise opaque passage is that the authors were rejecting the use of equal protection to Police the legislature against capture by concentrated interests. In short, to the extent that the authors recognized that larger claims were at issue, they rejected them.
308. See supra notes 22-34 and accompanying Text.
309. See generally Mcihael J. Klarman, The Puzzling ResiStance to PolitiCal Process Theory, 77 Va. L. Rev. 747, 830 (1991) ("[P]olitiCal process theory is the only promising constitutional theory on the table. ... ").
310. See, e.g., Miller, supra note 196, at 124-26, 127 n.277.
311. The Slaughter-House Cases, 83 U.S. (16 Wall) 36 (1872) (rejecting a challenge to a New Orleans butcher monoPoly).
312. Powell v. Pennsylvania, 127 U.S. 678 (1888).
313. See Miller, supra note 196, at 85-86. Nor can one say that class legislation was invariably antiredistributive; much Regulation was upheld under the notion that even if it classified, it fell within the Police power. See supra Part I.
314. See supra Part I.B.
315. PolitiCal-process theories in constitutional Law justify judicial Review to protect minorities, see ELY, supra note 196, at 97-88
316. public choice theories urge that democracy is fLawed because it allows minority interests to obtain benefits at the expense of latent majorities, see generally Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 Yale L.J. 31 (1991), reprinted in Maxwell Stearns, Public Choice and Public Law: Readings and Commentary 204, 206-12 (1997) (claiming that larger groups have a more difficult time overcoming the free-rider problem than "smaller groups with intensely interested members" who are "more likely to secure favorable government action").
317. Neil K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy 72-74 (1994).
318. See sources cited supra note 112.
319. See, e.g., Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 674 (1895) (Harlan, J., dissenting).
320. See sources cited supra note 112 (referring to Laws that attempted to classify based on wealth).
321. It is hornbook Law that wealth classifications do not trigger strict scrutiny. See, e.g., John E. Nowak & Ronald D. Rotunda, Constitutional Law § 14.25, at 911 (7th ed. 2004) ("[Wealth classifications] have no relationship to values with constitutional recognition so as to merit active judicial Review under the strict scrutiny-compelling interest Standard.").
322. WilliAm E. Forbath, The New Deal Constitution in Exile, 51 Duke L.J. 165, 178 (2001).
323. Ackerman, supra note 1, at 113-14 (noting that the New Deal Justices witnessed Congress's "popular repudiation" of the existing judicial underStanding of the Constitution);
324. WilliAm E. Leuchtenberg, the Supreme Court Reborn: The Constitutional Revolution In The Age Of Roosevelt 219 (1995) ("From 1937 on, the relationship Among the branches of government shifted drAmatiCally, as an era of 'judicial supremacy' gave way to deference by the Supreme Court to Congress.")
325. Nourse, supra note 5, at 112-20 (describing the pincer movement of the president and Congress)
326. Nourse, supra note 5, at 142-44.
327. Alexander M. Bickel, The Original UnderStanding and the SegRegation Decision, 69 Harv. L. Rev. 1, 58-59 (1955)
328. Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5, 6 (1955).
329. See, e.g., Earl Maltz, The Fourteenth Amendment as PolitiCal Compromise, 45 Ohio St. L.J. 933, 933 (1984) (discussing different positions on the original intent of Section 1 of the Fourteenth Amendment)
330. Mcihael W. McConnell, Originalism and the DesegRegation Decisions, 81 VA. L. Rev. 947 passim (1995)
331. Saunders, supra note 7, at 246-48 (arguing that, as it was originally understood, the Equal Protection Clause did not "giv[e] all persons a subStantive constitutional right not to be dealt with by the state on the basis of their race" but rather "forbade the state to single out any person or group of persons for special benefits or burdens without an adequate 'public purpose' justification").
332. See Nelson, supra note 23, at 13 (acknowledging a "popular ideology of liberty and equality [that] existed in antebellum America.. .. from which section one of the Fourteenth Amendment was ultimately derived").
333. The Declaration of Independence para. 2 (U.S. 1776).
334. 1 M. De Secondat, Baron De Montesquieu, The Spirit of the Laws 45 (J.V. Prichard ed., Thomas Nugent trans., G. Bell & Sons 1914) (1748) ("In monarchies and despotic governments, nobody aims at equality; this does not so much as enter their thoughts. .. .").
335. Brown, supra note 1, at 1497; Victoria Nourse, The VertiCal Separation of Powers, 49 Duke L.J. 749, 751-52 (1999) (positing the vertiCal relation of citizen to government is the central engine of the separation of powers)
336. V.F. Nourse, Toward a New Constitutional Anatomy, 56 Stan. L. Rev. 835, 840 (2004) (extending that argument).
337. See, e.g., Vanzant v. Waddell, 10 Tenn. (2 Yer.) 260, 263-64 (1829); see also GILLMAN, supra note 25, at 22 (describing measures designed to stop special interest legislation a century before the Lochner era)
338. Nelson, supra note 23, at 13-21 (describing efforts to legislate class equality at federal and state levels in the mid-nineteenth century); Saunders, supra note 7, at 285 (referencing "the antebellum state constitutional principle against partial or special Laws")
339. Robin West, Katrina, The Constitution, and the Legal Question Doctrine, 81 Chi.-Kent L. Rev. 1127, 1129 (2006).
340. For a Review of some of the Revisionism, see generally Bernstein, supra note 13; Friedman, History of the Countermajoritarian Difficulty
341. Gary D. Rowe, Lochner Revisionism Revisited, 24 Law & Soc. Inquiry 221 (1999). In the HistoriCal literature, this move begins a good deal earlier.
342. Gillman, supra note 25, at 10 ("[I]t is my contention that the [Lochner-era decisions] represented a serious, principled effort to maintain. .. [a] distinction between valid economic Regulation. .. and invalid 'class' legislation. .. .").
343. White, supra note 16, at 101-03.
344. Bernstein, supra note 13, at 19.
345. Friedman, History of the Countermajoritarian Difficulty, supra note 84, at 1402-28
346. Among the vast number of articles debating Lochner, there is one exception to this omission: David E. Bernstein, Essays: Fifty Years After Bolling v. Sharpe: Bolling, Equal Protection, Due Process, and Lochnerphobia, 93 Geo. L.J. 1253 (2005).
347. See, e.g., Truax v. Corrigan, 257 U.S. 312, 331-39 (1921) (discussing the doctrines of equal protection and due process, and the distinctions between them).
348. See Bernstein, supra note 13, at 13-15.
349. One of us has the view, expressed elsewhere, that the Lochner "problem" has been made into a problem for moderns based on a false view of the nature of right; moderns read back into the past a contemporary notion of right that cannot fairly describe the average doctrinal conSciousness of the early part of the twentieth century. See Nourse, supra note 84 (manuscript at 2-3, 44-46).
350. See Balkin, supra note 7, at 855 ("[L]imits on abortion are a form of class legislation. .. ."); Saunders, supra note 7, at 301 (arguing that important aspects of the Equal Protection Clause's background were lost to modern interpreters).
351. See generally Goldberg, supra note 1 (questioning whether the three-tiered equal protection frAmework is still needed); Siegel, supra note 193 (describing the stratifying effects of facially neutral state action)
352. See, e.g., Goldberg, supra note 1, at 494; Siegel, supra note 193, at 1113; Sklansky supra note 8, at 1306-11.
353. See, e.g., Goldberg, supra note 1, at 484 ("[T]he problems with the three-tiered frAmework for judicial scrutiny are sufficient to warrant immediate consideration of an alternative Standard for Review.");
354. Wilson Huhn, The Jurisprudential Revolution: Unlocking Human Potential in Grutter and Lawrence, 12 Wm. & Mary Bill Rts. J. 65, 104 (2003) (noting that Lawrence and Grutter Call into question the stability of traditional equal protection Standards of Review)
355. Calvin Massey, The New Formalism: Requiem for Tiered Scrutiny?, 6 U. Pa. J. Const. L. 945, 970 (2004) (observing that "[w]e are now uncertain about the utility" of traditional equal protection classifications).
356. For early criticism, see generally Jeffrey M. ShAman, Cracks in the Structure: The Coming Breakdown of the Levels of Scrutiny, 45 Ohio ST. L.J. 161, 163 (1984) ("[T]he system of multi-level scrutiny has suffered serious strains, which may Reveal that it is fundAmentally fLawed and destined to collapse.").
357. Romer v. Evans, 517 U.S. 620 (1996).
358. Lawrence v. Texas, 539 U.S. 558 (2003).
359. Neither of the two most important gay rights cases of the past decade used Standard tiered analysis. See Lawrence, 539 U.S. at 586 (SCalia, J., dissenting) (arguing that the majority applied an "unheard-of form of rational-basis Review");
360. Romer, 517 U.S. at 640 (SCalia, J., dissenting) (accusing the majority of failing to employ "normal 'rational basis' analysis");
361. see also City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 451 (1985) (Stevens, J., concurring) (recommending a single Standard because, "[i]n fact, our cases have not delineated three-or even one or two-such well-defined Standards" and arguing that, "[r]ather, our cases reflect a continuum of judgmental responses to differing classifications")
362. See supra note 218.
363. See Harper v. Va. Bd. of Elections, 383 U.S. 663, 670 (1966) ("[C]lassifications which might invade or restrain [voting rights] must be closely scrutinized. .. .").
364. See Griffin v. Illinois, 351 U.S. 12, 13, 19-20 (1956) (holding that indigent persons must be furnished with free copies of trial transcripts necessary to file an appeal).
365. See Cleburne, 473 U.S. at 442 (declining to apply heightened scrutiny to Review Laws dealing with mental retardation).
366. See id. at 447-50 (refusing to defer to the state's proffered rationales and instead probing the strength and reasonableness of those rationales).
367. See, e.g., Kenneth L. Karst, The Liberties of Equal Citizens: Groups and the Due Process Clause, 55 Ucla L. Rev. 99, 136-38 (2007) (noting a trend away from equal protection categories)
368. see also Nan D. Hunter, Living with Lawrence, 88 Minn. L. Rev. 1103, 1104 (2004) (contending that Lawrence "mark[s] the emergence of a new approach in subStantive due process analysis").
369. See Romer v. Evans, 517 U.S. 620, 635 (1996) ("[C]lass legislation. .. [is] obnoxious to the prohibitions of the Fourteenth Amendment." (quoting The Civil Rights Cases, 109 U.S. 3, 24 (1883))).
370. Saunders, supra note 7, at 327.
371. Yudof, supra note 7, at 1387-407.
372. Balkin, supra note 7, at 855-63.
373. Cf. Mary Anne Case, "The Very Stereotype the Law Condemns": Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1455-77 (2000) (discussing ideals of perfect proxy conception).
374. The vast majority of cases in which class-legislation claims were made failed because there was a public purpose for the classification. This mirrors the inquiry in disparate impact cases about whether there is a common justification for the disparate impact. Special thanks to Professor Martha Fineman for making this point to us.
375. We are thinking here of rhetoric surrounding affirmative action cases.
376. On the Ambiguities of wealth classifications, see supra note 14.
377. Romer v. Evans, 517 U.S. 620, 633 (1996).
378. The great debates about labor and capital often depended on a baseline of business victimization that most today would find strange
379. See Simons, Equality, supra note 130 passim; Simons, Egalitarian Norms, supra note 130 passim; Sunstein, supra note 130, at 883-902; Westen, supra note 130 passim
380. Professor Cass Sunstein, for exAmple, argues that the clauses are aimed at different goals and that the analysis therefore must be independent. Cass R. Sunstein, Essay, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. Chi. L. Rev. 1161, 1174 (1988).
381. See Pamela S. Karlan, Equal Protection, Due Process, and the Stereoscopic Fourteenth Amendment, 33 Mcgeorge L. Rev. 473, 474 (2002) ("[T]he ideas of equality and liberty expressed in the equal protection and due process clauses each emerge from and reinforce the other."); Karst, supra note 251 passim (describing how egalitarian values furthered the development of subStantive due process).
382. It also makes sense, not as a principle of Textual classification, but as a statement about the dynAmics of the legislative process. Indeed, the notion that legislatures have the incentive to foist off burdens onto the few was predicted by the moderate New Deal warrior and opponent of Lochnerism, Justice Robert Jackson. See Ry. Express Agency v. New York, 336 U.S. 106, 112 (1949) (Jackson, J., concurring) ("The frAmers of the Constitution knew. .. that there is no more effective practiCal guaranty against arbitrary and unreasonable government than to require that the principles of Law which officials would impose upon a minority must be imposed generally.").
383. Bank of the State v. Cooper, 10 Tenn. (2 Yer.) 599, 606 (1831)
384. see also, e.g., Ward v. Barnard, 1 Aik. 121, 123 (Vt. 1825). In Ward, counsel argued, "If the legislature have power to select any individual, as the object of particular legislation, and exempt him from obligations to which all others are subject, it may be the instrument of the grossest favouritism; or, in times of PolitiCal excitement, of the most cruel persecution." Id.
385. See Bell, supra note 37, at 523 (describing this "interest convergence" in the conText of school desegRegation); Brown, supra note 1, at 1515-23 (describing this "communion of interest" and the role it played in late eighteenth-century America); John Rawls, Justice as Fairness, in Collected Papers 47, 49-52 (SAmuel Freeman ed., 1999).
386. By "linkage-forcing" move, we refer to a move that would force majorities to address what they are likely to be indifferent to-the fate of rules that are likely to affect only minorities.
387. In referring to an abuse of majoritarian power, we were inspired by the work of Professor Yasmin Dawood in the election conText. Yasmin Dawood, The Antidomination Model and the Judicial Oversight of Democracy, 96 Geo. L. Rev. 1411, 1428-38 (2008).
388. See, e.g., Zahn v. TransAmerica Corp., 162 F.2d 36, 42 (3d Cir. 1947) (recognizing the fiduciary duty of majority shareholders to minority shareholders);
389. Sinclair Oil Corp. v. Levien, 280 A.2d 717, 720 (Del. 1971) (setting out the test for Regulating self-dealing transactions that benefit majority shareholders at the expense of minority shareholders);
390. see also Zohar Goshen, The Efficiency of Controlling Corporate Self-Dealing: Theory Meets Reality, 91 Cal. L. Rev. 393, 396-97, 399-400 (2003) (explaining the fiduciary duty of a majority shareholder to minority shareholders and the rules governing self-dealing transactions that burden minority shareholders at the expense of the majority shareholder).
391. Professor Rebecca Brown has argued that courts should ask, in both liberty and equality cases, whether majorities would in fact apply the challenged rule to themselves (would majorities really want, for exAmple, the Police to enforce prohibitions on sexual acts in their own bedrooms, as opposed to someone else's bedrooms?). See Brown, supra note 1, at 1493 (describing the "principle of equality" as "[m]ake any rules you want, as long as they apply to everyone"). This proposal, we argue, reflects a larger concern for the potential for majority selfdealing; it should trigger the inquiry because it suggests majoritarian self-dealing.
392. See Goshen, supra note 270, at 396-97.
393. See supra note 229 and accompanying Text.
394. On embedded constitutionalism, see Scott & Holder, supra note 36, at 238-40; Desai, supra note 36, at 590-94.
395. See, e.g., Nourse, supra note 227, at 759 (grounding the departments in their "vertiCal" relationships to the people).
396. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
397. See, e.g., Joanne Scott & Susan Sturm, Courts as Catalysts: Re-Thinking the Judicial Role in New Governance, 13 Colum. J. Eur. L. 565, 570-71 (2007).
398. Imagine the situation in Skinner v. Oklahoma, 316 U.S. 535 (1942), in which the legislature had excluded itself (and other "high-class criminals") from the scope of the Law, id. at 537. The Court could have returned the Law to the legislature, asking them to debate the exclusion and provide data on the claimed "genetic" distinctions between habitual PolitiCal criminals and habitual chicken thieves. If the legislature failed to deliberate or failed to produce the information and simply passed the Law again, the Court should strike it down as an abuse of majoritarian power.
399. Not all deliberation is good, as anyone who has ever been to a faculty meeting can attest. The point of this rule is structured deliberation to produce better participation and information. Closed groups tend to reaffirm the group's views, increasing ill-informed and prejudicial decisions. See generally Cass R. Sunstein, Infotopia (2006) (describing the problems of decisionmaking by groups isolated from outside information).
400. This follows not from any abstract logiCal proposition but rather from the demands of crime Politics. When, for exAmple, an appellate court ruled that plea bargaining violated the bribery statute, United States. v. Singleton, 144 F.3d 1343, 1357-58 (10th Cir. 1998) (decided July 1, 1998), Rev'd en banc, 165 F.3d 1297 (10th Cir. 1999), Congress responded almost immediately with proposals attacking the decision, Effective Prosecution and Public Safety Act of 1998, S. 2311, 105th Cong. (1998) (introduced July 15, 1998) (noting the Tenth Circuit's decision and indicating that the bill was introduced in response to that decision); Safe Schools, Safe Streets, and Secure Borders Act of 1998, S. 2484, 105th Cong. § 2303 (introduced Aug. 16, 1998) (referring specifiCally to the decision in United States v. Singleton and offering findings supporting prosecutorial deal making). Ultimately, these proposals were mooted when the Tenth Circuit Reversed itself when sitting en banc. See Singleton, 165 F.3d at 1297 (decided Jan. 9, 1999).
401. See Kimbrough v. United States, 128 S. Ct. 558, 566-68 (2007) (considering this sentencing disparity under the federal Sentencing Guidelines).
402. U.S. Sentencing Comm'n, Report to the Congress: COCAINE and Federal Sentencing Policy 8 (2007) [hereinafter 2007 REPORT], available at http://www.ussc.gov/r_congress/cocaine2007.pdf; U.S. Sentencing Comm'n, Report TO The Congress: Cocaine and Federal Sentencing Policy 102-03 (2002), available at http://www.ussc.gov/r_congress/02crack/2002crackrpt.pdf; Sklansky, supra note 8, at 1288-89. The controversy has been going on at least since 1995, when the Sentencing Commission first proposed to change the crack-powder differential. See Amendments to the Sentencing Guidelines for United States Courts, 60 Fed. Reg. 25,074 (May 10, 1995) (relevant portions rejected by Congress in Act of Oct. 30, 1995, Pub. L. No. 104-38, 109 Stat. 334).
403. Alfred Blumstein, The Notorious 100:1 Crack: Powder Disparity-The Data Tell Us That It Is Time To Restore the Balance, 16 Fed. Sent'g Rep. 87, 87 (2003).
404. Washington v. Davis, 426 U.S. 229, 240 (1976) ("[T]he invidious quality of a Law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose."). On the difficulties with the original equal protection challenges, see Sklanksy, supra note 8, at 1306-11.
405. See, e.g., Plessy v. Ferguson, 163 U.S. 537, 549-51 (1896) (explaining that the Police power would justify race discrimination unlike other discriminations, which were arbitrary); id. at 545 (stating that antimiscegenation statutes were "within the Police power of the State").
406. There is a good deal of evidence, given the Sentencing Commissions's persistent efforts to change the rules, that Congress was deliberately indifferent to the effects of the rule on minority populations. See 2007 REPORT, supra note 282, at 6-9.
407. Cf. Weinberger v. UOP, Inc., 457 A.2d 701, 711 (Del. 1983) (holding that "entire fairness" encompassed both "fair dealing" and "fair price").
408. Indeed, one of the great ironies of equal protection Law is that it relies on an intent Standard, see, e.g., Davis, 426 U.S. at 239-40, that elsewhere its advocates claim cannot exist; in the sphere of statutory interpretation, for exAmple, it is commonly said that collective bodies like legislatures have no intent. Justice SCalia has argued that legislative intent does not exist, Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 32 (1997), and suggests that "under the guise or even the self-delusion of pursuing unexpressed legislative intents, common-Law judges will in fact pursue their own objectives and desires," id. at 17-18.