Due Process Clause: The Rise and Fall of Due Process I.

Due Process as a Restraint on the Subject of Legislation (Substantive Due Process) A. State Economic Regulatory Regulation 1. Lochner v. New York Harlans dissent later adopted as majority a. Constitutional questioning of a New York law prohibiting anyone from working more than 60 hours in a bakery i Not merely an act fixing the number of hours which shall constitute a legal days work but an absolute prohibition on the employer permitting more than te hours work to be done in his establishment b. Right asserted is the right of contract between the employer and his employees ii The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th amendment c. State defends on the grounds that the statute is within police powers d. State retains Police Powers without specific limitation relate to safety, health, morals and general welfare of the public iii Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers and with such conditions as the 14th amendment was not designed to interfere e. Question is which prevails between the two: 14th amendment v. Police powers f. The law must be upheld, if at all as a law pertaining to the health of the individuals who are following the trade of a baker iv The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether or not it is repugnant to the Constitution of the US must be determined from the natural effect of such statutes when put into operation, and not from their proclaimed purpose v The law has no relation to and no such substantial effect on the health of the employee as to justifying this in regarding this section as really a health law g. DISSENT - MAJORITY LATER vi When the validity of a statute is questioned the burden of proof is upon those who assert it to be unconstitutional Liberty of contract is subject to such regulations as the state may reasonably prescribe for the common good. The rule is universal that a legislative enactment, Fed or State, is never to be disregarded unless it be plainly and palpably in excess of legislative power There is a plain health issue at stake herestate should defer to the judgment made by the legislature in NY (know better than DC). Gov. should not be burdened to justify regulation beyond a plausible safety and health concern. Should not matter if there is an additional economic concern There is a plausible, legitimate rationale. 2. Nebbia v. New York a. New York regulation of a minimum and maximum milk price due to dairy farmers not meeting costs of production. Nebbia convicted of selling milk below minimum price. b. Nebbia asserts due process rights of free use of property, and liberty of contract

c. The function of courts in the application of 5th and 14th amendments is to determine in each case whether circumstances vindicate the challenged regulation as a reasonable exertion of governmental authority or condemn it as arbitrary or discriminatory vii Analysis: viii Court agrees that the milk industry is not a public utility and not a monopoly. ix But court determines that phrase affected with the public interest means that industry, for adequate reason, is subject to control for public good. There is no doubt that on the proper occasion and by appropriate measures the state may regulate a business in any of its aspects, including the price to be charged. x State required to justify act, but only to extent that it promote public welfare xi Same idea that grievances should be taken to the polls. xii If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary and discriminatory, the requirements of due process are satisfied xiii RATIONAL BASIS reviewdeference to the judgment of the legislature There is a presumption of validity. Require challenger to show that the rule is arbitrary or discriminatory xiv Adopts the view of Lochner dissentcourt will not second guess legislature xv Right to contract, establish prices and establish wages are NOT fundamental. NOT strict scrutinybut rational basis review. Right to determine business regulations is subject to reasonable state regulations (regardless of economic or public welfare concern) 3. US v. Carolene Products Co [congress allowed to prohibit filled milk for public good] Key difference here is that this is a CONGRESSIONAL act. Not a challenge of a state act under 14th but a challenged federal act th under 5 Different source of power (go straight to bill or rightsno need to incorporate 14th) a. FACTS: Carolene tried to sell imitation milk interstate. And congress passed an act prohibiting such sale. Sued as violation of due process guarantee under 5th xvi Consider source, nature and scope, limitations of power xvii Generally congress has plenary power in spheres of regulation, but what about due process clause? What is the scope of that power? b. Constitutional Issue: whether the filled milk act which prohibits the interstate shipment of milk compounded with any other fat or oil, so as to resemble milk or cream, transcends the power of congress to regulate interstate commerce or infringes on the 5th amendment c. Analysis xviii Court could have decided the entire case on a presumption of congressional validity but looked at the affirmative evidence offered by the state as well. (suggests that congressional findings are NOT necessary) Found substitute product generally injurious to health defrauding public

xix Only looking at rational basis herethe decision of the validity of the act was for congressthe court cannot override where there is clearly evidence of a rational congressional decision Burden of proving arbitrary, unreasonable, irrational, or discriminatory is on the CHALLENGER (34 years later able to show enforcement of this law violated Equal Protection Claimcourt inferred an EPC within the 5th amendmentbecause similar products were treated differently) xx If congress offers a plausible, conceivable rationalnot going to second guess. Presumption of validityhard to meet burden of showing violation. B. State Regulation Regulating Personal Liberties 1. Personal rights recognized by the courts that are subject to a different analysis than economic regulations a. Right to marry, raise children, and acquire useful knowledge as essential to the liberty protected by due process Meyer v. Nebraska b. Court invalidated a state law requiring attendance at public school as violative of parents liberty to direct the education of their children Pierce v. Society of Sisters c. Court held that mandatory sterilization of felonious habitual criminals violated due process because it included relatively minor offenders and excluded major offenders, and because it involved a basic familial right Skinner v. Oklahoma 2. Griswold v. Connecticut a. Griswold and associate supplied info to married couples on contraceptives and were convicted as accessories to the crime of using contraceptives in violation of Connecticut statute prohibiting contraceptives b. This law operates directly on an intimate relation of husband and wife and their physicians role in one aspect of that relation c. The state may not consistently with the spirit of the 1st amend. contract the spectrum of available knowledge d. 9th Amendment :The enumeration in the constitution, of certain rights shall not be construed to deny or disparage others retained by the people e. This statute concerns a relationship within the zone of privacy created by several fundamental constitutional guarantees. xxi It concerns a law which in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship xxii Such a law cannot stand in light of the principle so often applied by the court that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms 3. Moore v. City of East Cleveland a. Constitutional challenge to a city ordinance that restricts occupancy of a dwelling to members of a single family of which Moores family does not meet the classification b. Court previously considered land-use ordinance in Belle Terre and applied test requiring that the ordinance bear a rational relationship to the permissible state objective xxiii This case is distinguished from Belle Terre because the ordinance in that case only affected unrelated individuals. It allowed those who were related by blood,

adoption, or marriage to live together and noted that the ordinance promoted family values and family needs. xxiv This law in contrast slices deeply into the family itself c. When the govt intrudes on choices concerning family living arrangements, this court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation d. As a general matter states are permitted to pass zoning regulations and they are reviewed under the rational basis test (they give extreme deference to local zoning land use restrictions)but here you have the implication of a fundamental right which requires STRICT SCRUTINY. xxv The ordinance cannot survive on the legitimate govt interests put forth of preventing overcrowding, minimizing traffic and parking congestion. The statute serves them marginally at best. It allows situations that go against the purposes, and bar situations where the govt interests do not come into play. e. The history of Lochner shows that the court should be careful to exercise caution and restraint when giving enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights xxvi Appropriate limits come not from drawing arbitrary lines but rather from careful respect from the teachings of history and solid recognition of the basic values that underlie our society xxvii Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this nations history and tradition. 4. Troxel v. Granville a. FACTS: Washington statute permitted any person to petition for visitation rights and authorized the court to grant rights when it deemed it served the best interest of the child. Grandparents seek visitation against mothers wishes after father dies. b. Analysis xxviii Statute was too broad and violated the mothers due process right to direct the upbringing of her children absent some circumstance that would not be in the childs best interest. The state accorded no deference to what the mother thought was in the best interest of her child. If such subjects can be the topic of judicial review court has to accord weight to the mothers wishes. Gives the court too much power to determine what is in the best interest of the child. xxix Unfairly placed the burden of disproving the ability of the grandparents right to visitation. Should be a presumption of fitness of mother that grandparents have to overcome. xxx Statute contravened the assumption that a fit parent can determine what is in the best interest of her child. xxxi STRICT SCRUTINYpresumption of invalidity (burdens fundamental right), Government must show the presumption of the unfitness of the mother to show action in best interest of the child. 5. Roe v. Wade [court determines state has no pre-viability right to regulate abortion]

RULE ESTABLISHED: an abortion statute that excepts from criminality only life saving procedures on behalf of the mother, without regard to pregnancy stage and other interests involved is in violation of the due process of the 14th amendment Stage division of states interest: 1) Before end of first trimester: abortion decision and its effectuation must be left to the medical judgment of the doctor 2) After the end of the first trimester: the state, in promoting the health of the mother, may, if it chooses, regulation the abortion procedure in ways that are reasonably related to maternal health. 3) After viability, the state, in promoting the interest of human life, may if it chooses, regulation or even proscribe abortion (except when necessary to preserve the life or health of the mother) Leaves states free to place increasing restrictions on abortions as the period of pregnancy lengthens, as long as those restrictions are tailored to the recognized state interests. I. FACTS: constitutional challenge of a states criminal abortion statute. a. Analysis b. Constitution does not explicitly mention a right to privacybut the court has developed the notion through a line of cases to determine that the right of privacy is a fundamental constitutional right. (reading into the constitution a substantive guarantee) Lochner is deadbut the court is still using the theory of reading in c. Clear that the state would impose detriment to the mother by forcing her to carry an unwanted child, but the court does NOT agree with a mothers absolute right to terminate pregnancy at anytime for any reasonlimitations 1. Some state regulation in the area of privacy are appropriate a. State may properly assert protection if health, medical standards and potential life. b. At some point in pregnancy right of protection of interests becomes sufficiently important (compelling state interest) to sustain regulation of abortionsNOT an absolute right. d. Here the state failed to meet the burden of proof demonstrating the necessity of the infringement on the fundamental right to privacy that is necessary to prove a compelling state interest. i. Court determines that states interest becomes compelling at point of viability (end first trimester) establishes trimester framework of regulation. ii. Statute that only allows medical necessity abortions is unconstitutional 1. Does not survive STRICT SCRUTINY (burden fundamental right) 2. Apply within new trimester frameworkcriticism that court is establishing a legislative code. 3. BEAUTIFUL LANGUAGE

This right of privacy, whether it be founded in the 14th amendments concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the 9th amendments reservation of the rights of the people, is broad enough to encompass a womans decision whether or not to terminate her pregnancy. 6. Planned Parenthood v. Casey [replaces rigid trimester framework for undue burden test] a. FACTS: challenged constitutionality of an act that required a woman seeking an abortion to consider information for 24 hours, have informed consent of parents or judicial bypass if minor, notify husband if married. b. Constitutional Issue: whether states can resolve these philosophic questions in such a definite way that a woman lacks all choice in the matter, except perhaps in those rare instances in which pregnancy itself is a danger to life (or rape or incest). Immediate issue is not soundness of Roe but the precedential force of holding Question not whether state can regulate in earlier months, but what are the purposes and affects of that regulation. c. Analysis xxxii 14th still protects fundamental right of privacylaw protects personal choices xxxiii Court considers the soundness of Roe to determine if it is still good law. Basically Roe held that a state may not prohibit any woman from making ultimate decision to abort before viability, but subsequent viability, the state may choose to regulate or even proscribe abortion except where necessary to preserve the mothers life. Court refuses to overrule Roestare decisis too important. Fear weakening the credibility of the courtcannot suggest that decisions are grounded in political and social pressures and not law xxxiv Agrees that viability still marks the earliest point at which the states interest in the baby becomes constitutionally adequate to justify a legislative ban on unnecessary abortions. (a woman who fails to act before viability impliedly consents to state intervention on behalf of the child) xxxv But the court chooses to abandon the trimester frameworknot necessary to accomplish the goal of ensuring that a womans right to choose does not become subordinate to states interest (choice must be a fact not just theory) This framework is too rigid and unnecessary A state should not be prohibited from taking pre-viability steps to ensure a thoughtful and informed choice by the mother. Should be allowed to have provisions during the earliest stages of pregnancy to inform mother of weight of decision and opportunities for adoption. The fact that a law serves a valid purpose but has the incidental affect of making it more difficult or expensive to get an abortion is NOT enough to invalidate it. Court develops Undue Burden standard (intermediate scrutiny) To be invalid the regulation must have the purpose or affect of placing a substantial obstacle in the path of the woman (state should act to inform free choice, NOT hinder it)

Reconciles the states interest with the womans constitutionally protected liberty Burden on state to show right to choose not unduly burdened. xxxvi Consideration of the various aspects of this statute Neither informed consent, waiting period, nor parental notice by minor (with JUDICIARY BYPASS) impose an undue burden But spousal notification IS an undue burdenmay hinder a womans ability to seek services when in an abusive relationship. xxxvii Post-viability standards of review Proscription against post-viability regulating for to potential life But if the potential life is not at issue (health of the mother) court suggests (does not decide) undue burden as well. Does not overrule Roe but changes STRICT SCRUTINY to UNDUE BURDEN d. BEAUTIFUL LANGUAGE xxxviii at the heart of liberty is the right to define ones own concept of existence, of meaning, of the universe and of the mystery of human life. xxxix A finding of an undue burden is shorthand for the conclusion that a state regulation has the purpose of effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the state to further the interest in potential life must be calculated to inform the womans free choice, not hinder it xl These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14th amendment. At the heart of that liberty is the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the state xli Only where the state regulation imposes an undue burden on the womans ability to make this decision does the power of the state reach too far into the liberty protected by the due process clause. 7. C. Sub-topic 1. Details 2. Details a. More Details b. More Details xlii Further explanation xliii Further explanation D. Sub-topic II. Topic A. Sub-topic 1. Details 2. Details a. More Details b. More Details

xliv Further explanation xlv Further explanation B. Sub-topic