It goes without saying that the members of the Supreme Court today do not share the scruples of their 1872 forebears when they refused to stretch the Fourteenth Amendment beyond its narrow function, and it certainly did not take long after 1872 for the Court to yield to the irresistible temptation to overturn unpopular (albeit perfectly constitutional) state laws.
Towards the end of the nineteenth century and the beginning of the twentieth, a new generation of judges arrived on the scene who had little or no memory of what the Union had been like before the Civil War. America was entering the “Gilded Age,” when everyone worshipped material progress; Social Darwinism was the intellectual fad of the moment; and large numbers of people began moving from farms to the cities. Unsurprisingly, the Supreme Court absorbed this zeitgeist and began to strike down contrary state laws by invoking the portion of the Fourteenth Amendment prohibiting States from depriving their citizens of “due process of law.” One of the most notorious examples is the 1905 decision in Lochner v. New York. In that case, the State of New York had passed a maximum hours provision prohibiting bakers from employing their workers for more than ten hours per day or sixty hours per week. Such a regulation was hardly as oppressive as the blanket deprivation of livelihoods at issue in the Slaughterhouse Cases of 1872, and it certainly fell within the presumptive power of the State of New York (owing to the absence of a specific constitutional prohibition). Nevertheless, the Court struck down the regulation on the grounds that it robbed the bakers of their liberty of contract and their property without due process of law:
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 of the Federal Constitution. . . . Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right.
Although the Court’s rationale was indeed compelling in terms of logic, ethics, and even economics (modern minds may disagree), it usurped the right of the state legislatures to consider such factors when creating laws, and it certainly extended the Fourteenth Amendment beyond its original purpose. The Court, which had previously acknowledged that the Fourteenth Amendment was meant to protect African-Americans, had now used the Amendment to annul a generic workplace regulation of a sort that the States had always enjoyed the presumptive ability to enact.
To the credit of the Gilded-Age Court, its jurisprudence was consistently interventionist, as its broad definition of “due process” worked to strike down state laws that curtailed all manner of rights, whether “economic” or “non-economic.” In this sense, the Court at least retained an appearance of impartiality. For example, in 1925 the Court struck down a Nebraska law criminalizing the teaching of languages other than English to schoolchildren. This law, which sought to protect against the perceived threat of foreign influences, was clearly “non-economic” in nature. Notwithstanding, the Supreme Court struck it down and offered a broad, robust definition of liberty that strongly limited the discretion of the States:
While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. . . . Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.
Also during this period the Court displayed enthusiasm for expanding the “equal protection” clause of the Fourteenth Amendment beyond its scope of protecting African-Americans by striking down state laws and activities that differentiated among citizens regardless of whether those citizens were African-American or not. Again, to the Court’s credit, it applied its reasoning in a straightforward manner by questioning only those measures that explicitly singled out certain citizens for negative treatment, rather than questioning neutral laws that simply produced disparate effects (which virtually all laws do).
Obviously, though, the pendulum had swung to the opposite side of the spectrum from where it started. In 1872, the Court had warned of the danger of overstepping its bounds to become a “perpetual censor” of state legislation; now, however, the Court relished its godlike role as censor and proudly announced its expansive, supervisory mission. That self-appointed mission grew more expansive, and more renegade, as the Court began pillaging its way across the mid to late twentieth century.
No comments:
Post a Comment