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Flashcards in Due Process intro + Economic DP Deck (10):
1

Slaughterhouse Cases (1873) J. Miller

Issue: Does the 14th amendment privileges/immunities clause mean to apply the Bill of Rights to the states?

Facts: LA legislature gave monopoly in livestock/slaughterhouse business. Several butchers challenged the monopoly, saying the law violated their right to practice their trade

Holding: Narrow interpretation of 14th A: DP, equal protection, and privileges/immunities clauses used to sustain law

13th and 14th amendments were solely to protect former slaves

Can’t restrain state to exercise their trade

Implications:  Privileges/immunities clause remains nullity, while restrictive interpretations of DP and EP clauses have been overruled

Immunities clause: Court said all of the rights this clause meant to protect already existed before the clause was adopted, thus it was rendered a nullity, and has been ever since

Dissent: shouldn’t render clause a nullity

2

Emergence of DP

Post-Slaughterhouse: Bill of Rights couldn’t apply to states through privileges/immunities clause → Court used DP clause as the alternative approach

Views:

Total Incorporationists: all of the Bill of Rights should be included in DP clause

Selective Incorporationists: only some of Bill of Rights were sufficiently fundamental to apply to state gov’ts

3

DP DEBATE ISSUES + COURT OPINION

Three issues frame this debate:

  • Framers intent
  • Federalism concerns
  • What is the proper judicial role

Currently: Court has never endorsed total incorporationist approach, but practically, Court has found almost all of the provisions to be incorporated

4

Substantive Due Process Criticisms

  1. DP clause only refers to procedures, not substantive rights – wrong provision
  2. Court is protecting rights that aren’t expressly enumerated in Constitution
  3. Criticisms of how Court has used the doctrine (Lochner, Roe)

5

Substantive Due Process Defense

  1. Due process of law includes substantive limits
  2. Must protect rights that aren’t expressly stated (non-originalism)

6

Lochner v. New York (1905) J. Peckham

DP clause was used to ensure that laws served adequate purpose, otherwise, gov’t can’t interfere.

3 principles:

Freedom of K is a basic right protected as liberty under DP clause

Gov’t could interfere w/ freedom of K only to serve a valid police purpose: protect public safety, public health, or public morals

It was judicial role to carefully scrutinize legislation interfering w/ freedom of K to make sure it served valid police purpose

Holding: Court declared a NY law that set max hours that bakers could work was unconstitutional as violating DP clause – interfered w/ freedom of contract and did not serve valid police purpose

7

Nebbia v. NY (1934) J. Roberts

shift to judicial deference

Holding: Court upheld a NY law that set prices for milk.

Asserted that property rights and contract rights are not absolute – power to promote general welfare is inherent in gov’t

Need to have judicial deference for legislative choices - “evils in the market” wouldn’t right themselves through ordinary supply and demand

8

West Coast Hotel v. Parrish (1937) J. Hughes

key abandonment of Lochner

Holding: Court upheld state law that required minimum wage for women employees and expressly overruled previous cases

Abandoned Lochner principles: Constitution speaks of liberty and prohibits deprivation of liberty w/o DP, sometimes regulations adapted in the interests of the community is DP

Exploitation of a class of workers who have unequal bargaining power is detrimental to their well-being and gov’t can interfere

9

Levels of Scrutiny 

​Source: United States v. Carolene Products Co. (1938) Footnote 4

  1. Rational Basis
  2. Intermediate Scrutiny
  3. Strict Scrutiny

10

Rational Basis