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famous remark that the “Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics”. 198 U.S. at 75. During the era of economic substantive due process, the Court adopted an ad hoc approach, striking down laws that “unduly interfered" with freedom of contract but upholding those laws that were deemed "proper exercises” of the state's “police power" to provide for the public health and safety. See, e.g., Muller v. Oregon, 208 U.S. 412 (1908) (sustaining state legislation regulating the number of hours women could work); Nebbia v. New York, 291 U.S. 502 (1934) (sustaining law establishing regulatory board authorized to fix prices for the retail sale of milk); Morehead v. New York ex rel. Tipado, 298 U.S. 587 (1936) (invalidating law establishing a minimum wage for women).
In 1937, the Court sounded a retreat from economic substantive due process in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). In upholding Washington's minimum wage law for women, the Court stated:
What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty. . . [R]egulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.
300 U.S. at 391.
In the wake of West Coast Hotel, the Court began routinely to employ a deferential standard of review that upheld state economic legislation as long as some “rational basis” could be found for the legislature's action. See, e.g., Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949) (upholding state's "right-towork” law); Williamson v. Lee Optical Co., 348 U.S. 483 (1955) (upholding law prohibiting anyone other than a state-licensed ophthalmologist or optometrist from fitting eyeglass lenses).
Although the Court in recent years has shown little solicitude for Lochner-style economic substantive due process arguments, it has recognized that persons having property rights are entitled to minimal levels of procedural regularity, despite contrary state law.227 In Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972), the Court, per Justice Stewart, recognized that:
a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized.
The Court's actions in subsequent cases backed up the Court's stated determination to “take property rights seriously” in the procedural sense. In Fuentes v. Shevin, 407 U.S. 67 (1972), the Court required notice and hearing before prejudgment replevin; state law requirements to the contrary were found to violate due process. In North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975), the Court invalidated garnishment of a corporate bank account without a probable cause hearing, despite a contract conditioning the corporation's property interest in the bank account upon relinquishment of the right to demand such a hearing. According to the Court, the fact that the "debtor was deprived of only the use and possession of the property, and perhaps only temporarily, did not put the seizure beyond scrutiny under the Due Process Clause." 419 U.S. at 606. Unlike substantive due process, procedural due process acts as a “safeguard of the security of interests that a person has already acquired in specific benefits”, Board of Regents v. Roth, 408 U.S. 564, 576 (1972) (emphasis added).
227 See Oakes, “Property Rights” in Constitutional Analysis Today, 56 Wash. L. Rev. 583,
597-99 (1981). 228 This is not to suggest that “procedural due process” does not acquire an undesirably
activist and substantive flavor when it is employed to “discover” existing property rights that merit “protection.” For example, federal courts have transformed government welfare benefits and employment rights into “new property entitlements” that may be protected by procedural due process review. See Treatise on Constitutional Law, supra, $17.5, at 234-245. Under more traditional notions of property, a property right either would not have been found to exist in the first place in those situations, or the "right” would have been defined as conditioned upon whatever procedural conditions attached (“the bitter with the sweet"). See Arnett v. Kennedy, 416 U.S. 134, 154 (1974) (Rehnquist, J.) (“where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet").
In short, the Supreme Court has largely reverted to its original 19th century tradition of according state economic regulation deferential review under the due process clause. The Court has, however, recognized that existing property rights deserve to be safeguarded from abusive procedures. Thus, it has occasionally sought to vindicate these rights through procedural due process review. The Court does not appear to be about to revive the economic substantive due process standards of the Lochner era, even though it increasingly has seen fit to invoke substantive due process in the "civil liberties” area.
Economic Liberties Analysis of Substantive Due Process
The substantive due process cases of the Lochner era displayed a great solicitude for the economic rights of the individual. It is certainly correct that individual economic liberties enjoy substantial constitutional protection. Nevertheless, we believe that reliance on an unbounded due process clause approach to vindicate those liberties is at odds with a jurisprudence of original meaning.
First, as this Report has demonstrated, the contract and just compensation clauses, correctly interpreted, provide substantial protection for economic liberties. It is clearly inappropriate to advance those substantive liberties by invoking a clause (due process) that was designed to afford only procedural protections. Once procedural requirements have been met, the due process clause plainly allows deprivations of “life, liberty, or property."
Furthermore, a facially incorrect “substantive” reading of the due process clause is troublesome because it lacks standards and stopping points. “Due process” is in our view a procedural term that contains no language limiting its substantive application. Because it rests on no clearly demonstrable textual or historical principle of the Constitution, substantive due process yields an unprincipled jurisprudence, in which courts uphold or overturn legislative determinations based on an ad hoc policy calculus of the “reasonableness” of a law's interference with economic liberties. This approach finds no support in the Constitution.
A number of interpretivist scholars have expressed their opposition to substantive due process. Chief Justice Rehnquist, for example, has expressed his belief that the due process clause does not embody
“fundamental economic rights."? Justice Scalia has written that reliance on the due process clause to promote "economic constitutional guarantees mistakes the nature of the constitutionalizing process.” 230 Moreover, Justice Scalia bemoans the adverse "effect of constitutionalizing substantive economic guarantees on the behavior of the courts in other areas: There is an inevitable connection between judges' ability and willingness to craft substantive due process in the economic field and their ability and willingness to do its elsewhere.” 231 Judge Bork has argued that economic substantive due process “works a massive shift away from democracy and toward judicial rule . . . without guidance from the interpreted Constitution.” 232 Economically restrictive laws presumably would not violate due process, according to this test. Finally, Judge Easterbrook rejects substantive due process on the ground that “judges have not been charged with imposing their social views on the economic system.” 233
In sum, it is the view of several prominent interpretivist judges and scholars that the old economic substantive due process was unprincipled. They view Lochner-era due process theory as involving impermissible judicial usurpation of the legislature's role. We agree with this point of view. Substantive due process analysis is inappropriate because it clashes with the original meaning of the words of the due process clause (which refer to procedure, not substance). Moreover, substantive due process invites unbridled judicial activism: it places no obvious limitation on the scope of "fundamental liberties" that are to be protected.
229 See generally Rydell, Mr. Justice Rehnquist and Judicial Self-Restraint, 26 Hastings
L.J. 875 (1985). 230 Scalia, On the Merits of the Frying Pan, 9 Regulation, No. 1, at 10-14 (Jan.-Feb. 1986).
231 Id. at 12.
232 R. Bork, The Constitution, Original Intent, and Economic Rights 12 (unpublished
manus ipt distributed at the Attorney General's Conference on Economic Liberties, Washington, D.C., June 14, 1986). See also Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 6 (1971) (judges should adhere to the text and the history of the Constitution, and not manufacture new rights lacking a constitutional basis). Easterbrook, Foreword: The Court and the Economic System, 98 Harv. L. Rev. 4, 60 (1984). See also Easterbrook, Substance and Due Process, 1982 Sup. Ct. Rev. 85.
The due process clause of the Fourteenth Amendment was relied upon by the Supreme Court to strike down a host of state economic regulatory laws during the early 20th century. A few scholars have advocated that “economic substantive due process” be revived and used as a weapon to invalidate laws that invade economic liberties. Evidence of original meaning, however, indicates that the due process clause affords procedural, not substantive, protection. Substantive protection for economic rights is afforded instead by the just compensation and contract clauses.
The rejection of substantive due process does not, however, suggest that the due process clause has no role to play in vindicating economic liberties. The due process clause can and should be applied to afford procedural protection to persons whose property rights are threatened. While the scope of this protection is rather limited, it is not insignificant. Procedural due process review does serve partially to rein in government by requiring it to follow accepted procedures whenever it attempts to impinge on a person's economic rights.
B. The Commerce Clause
The commerce clause of the Constitution provides that Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” 234 “Negative” or “dormant” implications of the commerce clause have been judicially invoked to strike down state or local laws that restrain economic freedom by impermissibly burdening interstate commerce:
The commerce clause has been recognized since the time of Chief Justice Marshall as having a negative implication which restricts state laws that burden interstate commerce. When the Court strikes down a state or local regulatory act as inconsistent with the “dormant" commerce clause, it is interpreting the silence of Congress to hold that, in the absence of federal legislation, the state or local law creates a trade barrier or imposes a burden on interstate commerce that is inconsistent with the principle that one state should not be able to gain an
234 U.S. Const. art. I, $8, cl. 3.