About a century after Dred
Scott, I reviewed a book by Harvard Law School Professor Raoul
Berger, entitled Government by Judiciary:
The Transformation of the Fourteenth Amendment. Here are a few of my
comments, which are a good introduction to the substantive due process
phenomenon on the state level which, as we will see, has so much affected America
in the last hundred and fifty years.
Raoul
Berger [I wrote] has written one of the most important books in the literature
of American constitutional law, and one of the most disturbing. The book’s
first sentence expresses his thesis, drawn from his exhaustive examination of
the Fourteenth Amendment’s background and legislative history: “The Fourteenth
Amendment is the case study par excellence of what Justice Harlan
described as the Supreme Court’s ‘exercise of the amending power,’ its continuing revision of the Constitution
under the guise of interpretation.” (My italics.)
In Government by Judiciary, Professor
Berger proved conclusively that the Fourteenth Amendment’s Due Process Clause
was intended to deal with the same procedural
deprivation of rights as was the Fifth Amendment’s Due Process Clause,
whose development and application began with Magna Carta centuries earlier.
In my Brooklyn Law
Journal review, I wrote that “. . . Berger piles proof upon proof to
demonstrate that neither in 1789 [the Constitution] nor in 1868 [the Fourteenth
Amendment] did due process ‘comprehend judicial power to override legislation
on substantive or policy grounds’. . . .”
Following ratification
of the Fourteenth Amendment, every state law, especially those adversely
affecting liberty, individual rights, property, and contract, were now fair
game for those with standing to sue who wanted to attack the law based on the
Fourteenth Amendment’s newly invented substantive Due Process Clause.
However, despite Dred Scott, Wynehamer, and some similar state cases, the Supreme Court majority
refused for many years to apply the Due Process Clause of the Fourteenth
Amendment to anything except alleged procedural
deprivations of rights.
But there were murmurs.
The pot was bubbling. Litigants were aware of how “substantive due process”
arguments might help them. Lawyers discussed them. Articles appeared in the
professional literature. A movement began.
In 1878, ten years after
the enactment of the Fourteenth Amendment, a case entitled Davidson v. New Orleans reached
the Supreme Court. Justice Samuel Miller wrote for the majority:
While
the Fourteenth Amendment has been part of the Constitution, as a restraint upon
the power of the State, in only a very few years the docket of this court is
crowded with cases in which we are asked to hold that state courts and state
legislatures have deprived their own citizens of life, liberty, or property
without due process of law.
There is here abundant evidence that there exists some strange
misconception of the scope of this provision as found in the Fourteenth
Amendment. In fact, it would seem, from the character of many of the cases
before us, and the arguments made in them, that the clause under consideration,
due process, is looked upon as a means of bringing to the test of the decision
of this court the abstract opinions of every unsuccessful litigant in a State
court the justice of the decision against him, and of the
merits of the legislation on which such a decision may be founded. (My italics.)
Despite Justice Miller’s
analysis, there continued to be pro-substantive due process dissents in various
cases. Finally, in the late 1800s, the earlier substantive due process dissents
finally became majority law. In the case of Mugler
v. Kansas, the Supreme Court majority
ruled that due process had substantive clout and could subjectively test the
fairness, reasonableness, justness of state legislation—based, of course, on
the personal values of judges.
The first Justice John
Harlan wrote:
It
does not at all follow that every statute enacted ostensibly for the promotion
of these ends, that is police power and health, safety, welfare, and morals, is
to be accepted as a legitimate exercise of the powers of the state.
True.
There
are, of necessity, limits beyond which legislation cannot rightfully go.
True,
again.
While
every possible presumption is to be indulged in favor of the validity of the
statute, the courts must obey the Constitution rather than the law-making department
of the government [the legislature], and must, upon their own responsibility,
determine whether, in any particular case, these limits have been passed.
Again, true. But by what criteria are the limits to be ascertained
and then applied?
Here is one answer. In
the 1890 case of Chicago, Milwaukee &
St. Paul Railway Company v. Minnesota,
the Supreme Court ruled that the validity of railroad rates fixed by state
administrative commissions were not final. Their “reasonableness” was a matter
for judicial review. Why? The Court said that if rates were “unreasonable,” the
railroad was deprived of the lawful use of its property and thus of the
property itself, without — guess what? — substantive
due process of law. Why, the Court did not explain.
The constitutional
standard by which to assess government interference with rights had become
“reasonableness,” in the eyes of the beholders: judges. Life, liberty,
property, and contract rights were now to be protected, or not protected,
throughout the United States of America by this subjective, standardless judicial
invention.
Two years later, in
1892, the American Bar Association had a meeting. The general counsel of a
major railroad delivered a paper he had written entitled “Limitations on the
legislative power in respect to personal rights and private property.” What did
he argue for? Why, of course, for the “right” of railroads to make “reasonable
profits”—a determination, he said, for judicial
rather than legislative
determination. Well, with friends like him, Americans generally and
corporations did not need enemies.
Note what had happened.
Seeking protection from state legislative excesses regarding liberty, property
and contract (and impliedly, life), conservative lawyers attempted to shift
their battles into the courts, where the traditional procedural due process clauses would acquire substantive meaning and test the “reasonableness” of those
excesses. Altruist-collectivist-statist legislation would be judged by
subjective standards such as “reasonableness,” most of the time reflecting the
personal values of the hopefully conservative judges. Those corporate lawyers
miscalculated, failing to realize that substantive due process was a two-way
street.
The sad truth is that
proponents of substantive due process were trading short-term gains for
long-term jurisprudential instability and destruction of the very values of
individual rights, limited government, and capitalism they naively thought they
were protecting. It was not only that they did not know what they were doing.
Worse, as we shall see, the values of most of them were the same altruist-collectivist-statist
values they thought they were fighting.
In the 1898 case of Smith v. Ames, the Court held public utilities had the “right” to
“reasonable profits.” If anyone asked embarrassing questions such as “reasonable
to whom?” “Why?” “For how long?” “How much?” “By what standard?”—no meaningful
answer was given.
Few of the
economic-conservative businessman, lawyers, and judges who heralded what they
called the “new constitutional mandate” for laissez-faire apparently realized,
or cared about, the destructive idea they were advancing. The profit deemed
reasonable by one court in 1898 might well be deemed unreasonable by another
court on another day, or in another decade. Nor did they realize the
implications of reasonable profits defined not by the free market, but by a
legislature or a court.
Liberty, property, and
contract rights were to be protected not because they were absolute, not
because they were inalienable, and not because government had no right to
violate them. Not because they were individual rights—the work of Jefferson,
Madison, Hamilton, and the other Founders.
Instead, rights were
going to be protected, or not, depending on whether interference with them
would be deemed “unreasonable” by a court. They would be protected by a legal
fiction, a judicial invention called “substantive due process of law,” by a
standard of “reasonableness” (or “justness” or “unjustness”). There was no objective standard of what was, and what
was not, reasonable—much less what “rights” were. Fundamental rights were to be
sacrificed on the altar of altar of altruism, collectivism, and statism. And
they were.
That said, let us look
at a case that exemplifies the toxic combination of substantive due process and
altruism, collectivism, and statism. With a nod to Charles Dickens, here is my
take on the Supreme Court case of Muller v.
Oregon.
It is December 1902 in
London, Oregon. Cold and snowing. Bob Gotcher’s wife needs money for Christmas
because the family anticipates all they are going to get from Bob’s employer,
Mr. Ebenezer Scrooge, is a lump of coal. Mrs. Gotcher wants to buy her little
boy, Tiny Tim, a sled. She goes looking for work and comes upon a “help wanted”
sign outside the Grand Laundry. She tells the manager, Mr. Muller, that she
needs work because poor crippled Tiny Tim will be devastated if he does not get
a sled for Christmas.
“Well,” says Mr. Muller,
“I’ll tell you what; we’ve got work for a starcher.[[1]]
But it’s fifteen-hour-a-day work, it’s hard, and you’re going to have to
stand most of the time.” “That’s OK,” says Mrs. Gotcher, “I don’t care. We have
to get that sled.” And Muller says, “Well, that’s great.” Each party was glad
to have the other. A win-win situation. A voluntarily-formed contract.
A few months later, the
Oregon Legislature, in its wisdom and looking out for the “little woman,” enacts
a law whose first section says: “No female shall be employed in any mechanical
establishment or factory or laundry in this state more than 10 hours in any one
day.” If a female were so employed, the employer would be guilty of a
misdemeanor. Uh-oh![2]
In September 1905, Mr. Muller
was charged with violating the statute. He was convicted and fined.
Eventually, the case of Muller v. Oregon reached the Supreme Court of the United States. There, the
question for the justices was whether a healthy adult American woman in the
early twentieth century could freely choose to work more than ten hours a day,
whatever her reasons, or whether government (here, the State of Oregon) knew
better what was good for Mrs. Gotcha and women like her. Whether the government
could sacrifice her needs and rights to others’ policy values. Mrs. Gotcher
lost her salary, Mr. Muller paid a fine. Tiny Tim did not get his sled. But the
altruists, collectivists and statists did a good deed by helping Mrs. Gotcher
and all women in Oregon similarly situated.
Or did they?
The Supreme Court of the
United States upheld the Oregon statute, to the loud cheers of the
liberals/progressives of that day, who applauded the justices’ enlightened
concern for working women who apparently either did not know, or could not protect,
their own interests, which were not allowed to be determined by themselves, but
instead by the Oregon voters, legislature, governor and state courts (i.e.,
“society.”)
But if the decision’s
partisans (especially women) had paid attention to the Court’s reasons
for its decision in Muller v. Oregon, they probably would not
have cheered so loudly, if at all. Indeed, if they really understood the
decision, they should have been appalled. Even scared.
Muller v.
Oregon was a unanimous decision—one that today’s feminists should
take no comfort from. To quote the Court:
That woman’s physical
structure and the performance of material functions places her at a
disadvantage in the struggle for subsistence is obvious. This is especially
true when the burdens of motherhood are upon her. Even when they are not . . .
continuance for a long time on her feet at work . . . tends to injurious
effects upon the body, and, as healthy mothers are essential to vigorous
offspring, the physical well-being of women becomes an object of public
interest and care in order to preserve the strength of the race. (My italics.)
This patronizing view of
American working women was not all the Court had to say about the weakness of
women and their relationship and sacrificial duty to a paternalistic state.
Still
again, history discloses the fact that woman has always been dependent upon
man. He established his control at the outset by superior physical
strength, and this control in various forms . . . has continued to the present.
* * * It is still true that in the struggle for subsistence she is not an
equal competitor with her brother [meaning, any man]. Though limitations
upon personal and contractual rights may be removed by legislation there is
that in her disposition and habits of life which will operate against a full
assertion of those rights. (My italics.)
It was bad enough that
in upholding the statute the Supreme Court, which allegedly worried about
“subsistence,” was limiting the working hours of those trying to subsist. Much
worse was the Court’s view of working women as weak, timid, and dependent—even
cowardly, in being unable or unwilling to assert their “rights.” Lest there be
any doubt that that is what the unanimous Court was saying:
[Woman]
is so constituted that she will rest upon and look to [man] for protection;
that her physical structure and a proper discharge of her maternal functions —
having in view not merely her own health, but the well-being of the race —
justify legislation to protect her from the greed as well as the passion of
man. The limitations which this statute places upon her contractual powers,
upon her right to agree with her employer as to the time she shall labor, are
not imposed solely for her benefit, but for the benefit of all. (My italics.)
This is
altruism-collectivism-statism run amok.[3]
No doubt some will say
that the connection between the Supreme Court’s rationale in Muller v. Oregon
and the later Nazi “Master Race” program is, at best, tenuous.
They are mistaken.
To hold women’s “physical
well-being” and their production of “vigorous offspring” to be matters of
“public interest” so as to “preserve the strength and vigor of the race” is to
consider women, as did the Nazis, a mere state resource—important to the
government for their procreational capacity, to be nurtured much like
livestock, and for the same reason.
The rationale underlying
the Supreme Court’s decision in Muller v. Oregon transcends mere altruism,
collectivism, and even statism— “isms” that deny and negate any possibility of
individual rights or limited government. In Muller, the Supreme Court gave voice to a
doctrine evil in its intent and murderous in its application: the belief
that human beings, in that case women, were mere resources to be used,
abused, and ultimately sacrificed of for the “common good” by those wielding
the power of the state.
The premises upon which Muller,
its predecessors and progeny, rest, are that individuals do not own their
own lives.
Muller v.
Oregon was decided by the Supreme Court of the United States in 1908.
Less than three decades later, the case’s shamelessly expressed rationale would
be evident in Hitler’s Nazi Germany.
In those three decades in
the United States, the final bricks would be put in place to complete the
jurisprudential edifice that would become known as the “Living Constitution.”[4]
It may have been a major
achievement for lawyers and judges to imbue the federal and states’ Due Process
Clauses with the substantive power to rule on the constitutionality of
legislation, but a major question remained. How could the protections of the
Bill of Rights — speech, double jeopardy, right of assembly, right to bear
arms, and the rest — which applied
against only the federal government be made applicable to the states and,
coupled with substantive due process, anoint the courts, especially the Supreme
Court, as the final arbiters on individual rights, limited government, and the economics of
capitalism?
Although invoking due
process did not help Mr. Muller and Mrs. Gotcher, it was the Gitlow case that put in place the final
brick: the “Incorporation Doctrine.”
That is my next, last
Blog on Constitutional Law.
[1] A “starcher” was the term used in those days by the laundry
industry for the employee whose job it was to apply starch to dress shirts. In
the early 1900s, rarely were hand laundries firmly instructed, “No starch.”
[2]
Ebenezer
Scrooge did give the Gotcher family only a lump of coal. But, for the reason
discussed in the text, despite Mrs. Gotcher’s hard work (she eventually became
head starcher), Tiny Tim did not get his sled for Christmas. The rest of Tiny
Tim’s sad story is well known.
[3] This is the same
rationale that underlay the monstrous program that would come a quarter-century
later in Nazi Germany.
[4]
In
1985, then-Attorney General of the United States Edwin Meese, III, delivered a
groundbreaking speech to the American Bar Association. Among his comments, he
said:
In
recent decades many have come to view the Constitution, more accurately part of
the Constitution, provisions of the Bill of Rights, the 14th Amendment, as a
charter for judicial activism on behalf of various constituencies. Those who
hold this view often have lacked demonstrable, textual, or historical support
for their conclusions. Instead they have “grounded” their rulings in appeals
to social theories, to model philosophies or personal notions of human dignity,
or to “penumbras” somehow emanating ghostlike from various provisions
identified—and not identified—in the Bill of Rights.
Meese
was of course referring to the liberal justices on the Supreme Court and their
cohorts in academia and the legal profession, all of whom worship at the altar
of the “Living Constitution,” the High Priest of which was the late, unlamented
by Conservatives and Libertarians, Associate Justice William J. Brennan Jr.
The Constitution,
according to Brennan,
. . .
embodies the aspiration to social justice, brotherhood, and human dignity
that brought this nation into being.” * * * Our amended Constitution is the
lodestar for our aspirations, like every text worth reading, it is not
crystalline. The phrasing is broad and the limitations of its provisions are
not clearly marked. Its majestic generalities and ennobling
pronouncement are both luminous and obscure. * * * When justices interpret
the Constitution they speak for their community,
not for themselves alone. The act of interpretation must be undertaken with
full consciousness that it is . . . the community’s
interpretation that is sought. (My Italics.)
Putting aside Brennan’s
flowery, meaningless prose — e.g., “social justice, brotherhood, and human
dignity,” “crystalline”— his statement is a naked paean to collectivism. Brennan
sees judges of lower courts and justices of the Supreme Court somehow
channeling the “community”— meaning some unidentified and unidentifiable
“others”— in ruling on fundamental questions of individual rights and limited
government. According to Brennan, judges and justices do not decide what the
Constitution means, their friends and neighbors do! The judges merely channel what the vox pop wants.
Brennan continued: “But
the ultimate question must be, what do the words or the text mean in our time?”
This revealing sentence
by Brennan is a flat-out repudiation of the truism that words have objective
meaning. If they do not, words are susceptible to subjective use by any Tom,
Dick, or Harry (or Bill) who wants to distort them to serve his own purposes.
Brennan’s statement is an utter betrayal of the principle that the Constitution
reflects what the Founders wanted it to mean.
He concluded with this:
For the
genius of the Constitution rests not in any static meaning it might have
had in a world that is dead and gone, but in the adaptability of its
great principles to cope with current problems and current needs. * * * Our constitution was not intended to preserve a
preexisting society, but to make a new one, to put in place new principles
that the prior political community have [sic] not sufficiently recognized.
(My italics.)
The “world that is dead
and gone,” according to Brennan, was the America that proudly declared that
“all men are created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the Pursuit of
Happiness—That to secure these rights, Governments are instituted among Men,
deriving their just powers from the consent of the governed.”
Brennan’s "dead world" was
the one in which American patriots stood at Bunker Hill, at Lexington, Concord,
and at Valley Forge; and at immeasurable cost in blood and treasure, eventually
threw off the yoke of British tyranny. A "dead world" whose Constitution promised
to “establish Justice” and “secure the Blessings of Liberty.” A "dead world"
where a Bill of Rights explicitly rejected the sacrifice of the one to the
many, and protected individual rights against the collective and its enforcer,
a statist government.
All this was Brennan’s “world that is dead and gone,” to be replaced by a world conceived by
altruists, collectivists, and statists, born in legislatures, and nurtured by
courts—one where “current problems and current needs” are to be satisfied by
the statist power of government.
One that used the Constitution to eschew our
“preexisting society . . . [and] make a new one, to put in place new principles
that the prior political community have [sic]
not sufficiently recognized.” Brennan meant that the dead hand of the
Founders cannot be allowed to leave today’s problems and needs unsatisfied—no
matter how twisted and irrational today’s judicial decisions had to be to
further that subversive goal.
That is the
constitutional methodology of the altruists-collectivists-statists, producing
the religion of the Living Constitution.
That Living
Constitution, central to liberal/progressive jurisprudence and evident in
Supreme Court adjudication, in reality means no Constitution at all. Because,
if that methodology is what judges can use in doing their job, the Constitution
is no different from any piece of legislation, which can be constantly amended
or repealed.
A Living Constitution is
anti-individual, limited government and capitalism. It removes from the public forum and from those who are
politically accountable — presidents, governors, legislators — and thus from the people
themselves, the important issues they are responsible for: social, economic,
financial, and cultural. Indeed, policy issues of every kind.
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