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.
There are, of necessity, limits beyond which legislation cannot rightfully go.
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.[] 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!
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.
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.”
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.
 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.”
 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.
 This is the same rationale that underlay the monstrous program that would come a quarter-century later in Nazi Germany.
 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.