Con Law final research paper

Research paper on the evolution of SC doctrine re: the tri-branch power rivalry, documented parallel to the evolution of the economically laissez-faire Court.


The issue of economic protectionism by the Supreme Court, specifically dealing with the “liberty of contracts,” might seem like a topic more apt for a discussion of rights and liberties than of the Court’s own definition of its sphere of power relative to Congress and the President. Yet the evolution of this doctrine, whereby the Court adopted a laissez-faire theory of economic involvement and treaded remarkably close to Congress’ power of lawmaking, demonstrates the dynamic nature of the tri-branch power struggle as well as any subsequent series of cases yet documented. From 1858 to 1937, through the adaptation of the Fourteenth Amendment and the crisis of Franklin Roosevelt’s threats to pack the Court, the Supreme Court found itself in every role from congressional watchdog to, eventually, presidential political subsidiary.

The first milestone in this series of cases was Butchers’ Benevolent Association v. Crescent City Livestock Landing & Slaughterhouse Co. (1873), also known as The Slaughterhouses Cases. It stood effectively as the beginning of a Supreme Court doctrine that protected economic liberties beyond those protections offered in the contract clause (O’Brien 982).
In 1869, Louisiana passed a state law, aimed at reducing the spread of pollution and cholera in the Mississippi River, that prohibited the slaughtering of livestock in New Orleans and the surrounding area with the exception of one slaughterhouse. This slaughterhouse was afforded an exclusive slaughtering franchise in southern Louisiana lasting 25 years – a franchise that some claimed constituted a monopoly (O’Brien 993).
The Butcher’s Benevolent Association (BBA), a group of independent slaughterers (O’Brien 993), challenged that the legislation granting one slaughterhouse exclusive rights was a violation of the Thirteenth and Fourteenth Amendments of the Constitution, holding that it deprived them of their livelihood (O’Brien 993). Specifically, BBA alleged that the law “creates an involuntary servitude forbidden by the 13th article of the amendment; That it abridges the privileges and immunities of citizens of the United States; That it denies to the plaintiffs the equal protection of the laws; and, That it deprives them of their property without due process of law” (O’Brien 994).
The Court upheld the law 5-4, affirming the judgments of a Louisiana state court and the state Supreme Court, on the grounds that the Fourteenth Amendment only applied to residents claiming injury under national citizenship (O’Brien 981). In his delivering the opinion of the Court, Justice Sam Miller wrote that “It is quite clear, then that there is a citizenship of the United States and a citizenship of a state, which are distinct from each other and which depend upon different characteristics or circumstances in the individual” (O’Brien 994) and held, citing the language in the Amendment that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” (O’Brien 980), that “it is only the [privileges and immunities belonging to a citizen of the United States] which are placed by this clause under the protection of the Federal Constitution, and that [those of citizens of individual states]…are not intended to have any additional protection by this paragraph of the Amendment” (O’Brien 995).
This decision effectively quashed any hope that the Fourteenth Amendment would wholly protect privileges and immunities past the initial implication that citizenship was to be extended to blacks (mostly former slaves), which effectively overturned Dred Scott v. Sandford (O’Brien 980-981, Ross 649-650). Likewise, this inadvertently unraveled the doctrine established in Dred Scott whereby Congress could not legislate so broadly as to regulate the property of particular state citizens (Ross 649). Michael Ross quoted a Supreme Court historian from the 1960s in saying that “the only thing slaughtered in The Slaughterhouse Cases was the right of the negro to equality” (Ross 650).
Though Slaughterhouse was essentially a case about personal and corporate economic liberties, however, there was a larger sphere of influence into which its decision and ramifications tapped. It touched on the sphere of court-congress power divisions. In this case, the definition of that sphere and its borders gained a new degree of ambiguity. Precedent established in the denial of congressional federal property law-making was thrown out the window, the dynamic of the tri-branch power struggle set back in motion.
In his dissent, Justice Bradley wrote, concisely, that “a law which prohibits a large class of citizens from adopting lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law” (O’Brien 997), arguing that the ousted workers were entitled to keep their jobs under the due process clauses of not only the Fourteenth Amendment, but the Fifth (O’Brien 981). He was also a proponent of the interpretation of the Fourteenth Amendment purported by John Campbell, who represented BBA – that the due process clause ought to be interpreted as more than a mere “procedural guarantee” (O’Brien 981). For the time being, Cambell’s interpretation would remain stagnant, if only ahead of its time. The Slaughterhouse Cases represented the beginning of a legal movement that resulted in vast protection of economic freedoms, aided by a decision in Santa Clara County v. Southern Pacific Railroad Company (1886) that ascertained the status of “legal persons” for corporations (O’Brien 983).
As drastic as things may have seemed, a new era was about to be ushered into the history of Supreme Court doctrines on economic interference and judicial activism.
Lochner v. New York (1905), which O’Brien calls “one of the most notorious rulings on the liberty of contract” (984), was preceded by Allgeyer v. Louisiana (1897), in which a Louisiana law restricting the issuance of insurance policies was struck down and the doctrine of a “liberty of contract” was announced by Justice Rufus Peckham:
The Liberty mentioned in the [Fourteenth] Amendment means not only the right of a citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the employment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contacts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned (O’Brien 984).
The “Lochner Era,” which O’Brien says was ushered in with Allgeyer, was a period marked by extensive economic protection from the due process clause (984). Lochner originated when Joseph Lochner was fined $50 for violating an 1897 New York statute that barred employers from having their employees work more than 60 hours per week in a bakery. The Court struck down the state law as a violation of the liberty of contract established after Allgeyer. Justice Peckham, in delivering the Court’s opinion, wrote that “The state…has power to prevent the individual from making certain kinds of contracts” (O’Brien 1001) because states possess broadly stated powers to make laws for the general welfare over which the Fourteenth Amendment has no jurisdiction, negative or affirmative. However, he wrote, “[t]his is not a question of substituting the judgment of the court for that of the legislature…It is a question of which of two powers or rights shall prevail, - the power of the state to legislate or the right of the individual to liberty of person and freedom of contract” (O’Brien 1001-1002).
And given this question? “We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right to free contract on the part of the individual” (O’Brien 1003).
But the implications of Lochner were far from definite. Justice Holmes, in his dissent, wrote that “the Constitution is not intended to embody a particular economic theory…It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States” (O’Brien 1003-1004). Thus Holmes does three things – first, he argues that the Supreme Court ought to interpret laws rather than create them, terms he says are being violated in Lochner and the Allgeyer doctrine. Second, he establishes that the Lochner era can be interpreted two different ways – the first being that the court was imposing a free market doctrine, the second that the court is trying to distinguish between legislation aimed at promoting the general welfare and legislation that was invalid because it advanced special interests (O’Brien 985).
Third, and most important to this exploration, Holmes opines in such a way as to keep the freedom of contract debate at least partially within the sphere of the power struggle between the Court and the law-making power of the state insofar as it falls outside the sphere of the Fourteenth Amendment. Peckham argued that the Court’s power to protect economic liberties supercedes the power of the state legislature, and Holmes disagreed.
William J. Novak, in a review of Paul Kens’ Judicial Power and Reform Politics: The Anatomy of Lochner v. New York, cites Kens and his argument that the Lochner “myth,” or retained doctrine, still exists (Novak 1447). Given that judicial activism and an overly politicized bench is all but a dead issue, Kens appears insightful, if not slightly prophetic; lacking a read on the Court situation in 1990, when the book was written, that conclusion cannot be made. But Novak writes, with respect to Kens, that one reason for the supposed continued existence of Lochner laissez-faire Court economics is Lochner’s “lure for contemporary jurisprudes debating the ins and outs of judicial activism” (Novak 1447). Of course, a true assessment of Lochner’s current influence would be prudent; a series of cases between 1908 and 1937 provide the best conventional assessment as of yet.
In Muller v. Oregon (1908), the Court unanimously upheld an Oregon state law that limited the workday to 10 hours for women. While this appears at first as though the Court is retracting its own power to protect economic freedoms in favor of the state’s legislative powers, the reasoning behind the decision was almost exclusively factual rather than constitutional (O’Brien 1007-1008). In delivering the Court’s opinion, Justice Brewer wrote that “the general right to contract in relation to one’s business is part of the liberty of the individual, protected by the Fourteenth Amendment to the Federal Constitution; yet it is equally well settled that this liberty is not absolute and extending to all contracts” (O’Brien 1008).
When not, then? “[A] State may, without conflicting with the provisions of the Fourteenth Amendment, restrict in many respects the individual’s power of contract” (O’Brien 1008).
Why the change in doctrine? Or does this even constitute a change in doctrine?
Oregon was represented in Muller by Louis Brandeis, who filed a brief containing only two pages of legal arguments but over 100 pages of factual information regarding the special needs of women and the discrepancies between men and women in a physically exhaustive work state (O’Brien 987). This represented a return to the tactics of the Court that marked Lochner in that the Court was essentially debating the factual merits of a law rather than the constitutionality thereof. And they were convinced – Brewer cited a number of Brandeis’ statistics and facts in defending the law as within state powers, even within the sphere of the general welfare:
“The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength…This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her…” (O’Brien 1009).
A 1912 article in the Michigan Law Review cited Muller as valid defense of a Washington statute limiting the number of consecutive hours women are allowed to work with machinery, stating that “limitation upon this freedom is a valid exercise of the police power when the circumstances under which labor is performed…or the condition of the persons engaged in it…require it” (Constitutional 642).
Is this an arbitrary point in the question of spheres of power? On the contrary – the nature of the statute or act and the aspect of said statute in question can determine the nature of the case – one of general welfare, perhaps; one of simple fact and lawmaking, though the Court effectively hijacked such cases in Lochner and Muller, or one of interpretation (Constitutional 642). This distinction, it so happened, would turn out to matter a great deal.

This much is obvious – that the Court commenced an unprecedented era of protection for economic freedoms, including those of businesses, beginning essentially with the Allgeyer definition of economic protectionism and Lochner’s upholding it, and that Muller represented a drastic change in precedent though not necessarily in doctrine. That last question, then, is next to be addressed.
At first, it seemed as though Muller has little effect on the doctrine of Supreme Court decisions regarding economic protections. Despite the decision in Muller and a similar ruling in Bunting v. Oregon (1917), in which a ten-hours-per-day limit on labor for both men and women was upheld, the Court continued to consistently strike down economic regulation laws thereafter (O’Brien 988) in a validation of what Novak, with respect to Kens, refers to as the persistence of the “Lochner myth” (Novak 1447). The pattern of protection for the liberty of contract persisted with Adair v. United States (988) when the Court overturned a congressional law banning employers from forcing employees to sign contracts under the condition that they would not join a union; it persisted in Coppage v. Kansas (1915) when the Court struck down a state law of the same nature; and it continued in Adkins v. Children’s Hospital (1923) when the Court struck down the Washington, D.C. minimum wage law for women (O’Brien 990).
The persistence of the Lochner doctrine, according to Novak, was different than the theory purported by Kens. “Lochner…and subsequent constitutionalism owed much more to fundamental Civil War era shifts in the definitions of federalism, legislation, sovereignty, common law rights, state police powers, and even the law of master/servant than to the capture of the Supreme Court by either Herbert Spencer or Adam Smith” (Novak 1447). Could it be that this sequence was initiated with the overturning of Dred Scott, the case that in many circles is blamed for instituting a doctrine of federalism that inadvertently led to the American Civil War?
Whatever the answer, President Franklin Delano Roosevelt was content to utilize the potential of judicial activism in passing the New Deal proposals, years-old doctrine beyond the realm of consideration. When key pieces of New Deal legislation were struck down by the Court, Roosevelt, fresh off a landslide reelection victory, threatened to “pack” the court with up to 15 justices (O’Brien 990). Shortly thereafter, the conservative Justice Roberts provided a swing vote to pass West Coast Hotel Co. v. Parish (1937), which upheld a Washington State minimum wage law, as well as the vote to affirm National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) and the National Labor Relations Act, a key piece of New Deal legislation (O’Brien 990-991).
The Court’s position had been reversed, to be certain – and so it remained. But whether the Court underwent a true self-renewal, or whether Roberts was simply reacting at a counter to the Court’s judicial activism to that point, is not entirely clear. If the latter is indeed the case, however extraordinary it would subsequently be that the Court has retained this change in doctrine, the evolution of the liberty of contract doctrine would have taken an astoundingly unpredictable path. What began as a struggle between Congress and the Court’s defense of property rights for state citizens in Dred Scott was turned on its head with the virtual eradication of the rights beyond those aimed at former slaves that the Fourteenth Amendment could well have provided – indeed, The Slaughterhouse Cases also called into doubt the relationship between the Court and Congress’ lawmaking and interpreting power, a relationship solidified enough from Dred Scott to have legitimately been blamed for the Civil War when Congress was left powerless to ban slavery via federal statute.
This ambiguity was taken to a new extreme at the ushering of the Lochner era and the definition of the liberty of contract, whereby the very role of the Court as either interpreter of laws or lawmaker) was called into question. Yet the Court persisted, as protective of the economic liberties of individuals and corporations as ever, possibly even at the inadvertent expense of certain personal and individual liberties or rights under the due process clause. The Court was an activist one.
But that changed when Roosevelt countered with a threat to use judicial activism to reverse the Lochner-era doctrine. The Court, as if exposing a degree of its own politicization, responded to the threat by backing off. Doctrine was simply abandoned. And whether the Court has revealed of itself a dark period of its history, and whether the answer to that question makes any difference, the fact is that a new dimension has been added to the dynamic and debatable definitions of the tri-branch power sharing question. The Court may have established itself as supreme interpreter in Marbury v. Madison and it established a “veto” power over Congress in Dred Scott. But the Court was no match for presidential politicking. Roosevelt proved, in virtually pressing the Court to swing a vote and subsequently perform an about-face on a doctrine of economic protectionism, that the question of interpretation and politicking, though two very different fields, both yield tremendous power in the face of the branch for whom one method is not a specialty.
O’Brien noted that, since the “revolution” of 1937, “the Court has evolved a proverbial double standard: it gives economic regulation only minimal scrutiny, requiring only that it have some rational basis, while giving that affecting civil liberties heightened scrutiny, often upholding legislation only if the government’s interest in regulation is compelling” (O’Brien 991). But more than that, the Court has spent the last 70 years fully aware of the consequences of intrusion into presidential or congressional lawmaking; and it has, likewise, retained sole proprietorship over interpretation of the law.

Works Cited

“Constitutional Law: Restrictive Laws for Women.” Michigan Law Review. 1912.

Novak, William J. “Review: Judicial Power and Reform Politics: The Anatomy of
Lochner v. New York.” The Journal of American History p. 1447. Organization of American Historians. 1992.

O’Brien, David M. Constitutional Law and Politics: Struggles for Power and
Governmental Accountability. New York: W. W. Norton and Company, Inc.
2005.

Ross, Michael A. “Justice Miller’s Reconstruction: The Slaughter-House Cases, Health
Codes, and Civil Rights in New Orleans, 1861-1873.” The Journal of Southern
History p. 649-676. Southern Historical Association. 1998.