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

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


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


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



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


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)


Substantive Due Process Defense

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


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


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


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


Levels of Scrutiny 

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

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


Rational Basis