The Tempting of America

by Robert H. Bork

  Courts cannot nullify an act of the State legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the constitution, where neither the terms nor the implications of the instrument disclose any such restriction. Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism.44

  Of course the power claimed by the Loan Association majority would convert the government into a “judicial despotism”; in some degree, it has. The despotism is selective; it does not operate on all subjects of life all of the time. But it is there, ready to hand, when judges feel strongly enough. Clifford made the case for the correct judicial role about as well as it can be made. The security furnished by “the interest, wisdom, and justice” of the legislature is at least as good as that provided by free-ranging judges, with the added advantage that legislative despotism, if you, with Justice Miller, are pleased to call it that, can be cured at the polls. But logical demonstrations based upon the character of our republican form of government, in which courts do not rule as they see fit, is, apparently, no match for the passions of judges. In such behavior, of course, judges are encouraged not only by those who share their politics but by lawyers who see in the absence of law, and the existence of unguided judicial discretion, always the possibility of winning.

  Indeed, Justice Miller saw what was happening and yet could not bring himself to cut it short. In Davidson v. New Orleans,45 an 1877 decision, he managed to say both that the due process clause of the fourteenth amendment was satisfied by a fair judicial procedure and also that it was not, because the clause had substantive content. He and the Court held that “it is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the State, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case.” Yet, a few pages earlier, he said that “a statute which declares in terms, and without more, that the full and exclusive title of a described piece of land, which is now in A., shall be and is hereby vested in B., would, if effectual, deprive A. of his property without due process of law, within the meaning of the constitutional provision.” So a fair judicial proceeding would not be enough; the clause prohibits some undefined category of substantive legislation, of which Miller offered only one instance. The bar was thus invited to continue challenging the substance of statutes under the due process clause and simultaneously kept in the dark as to what the Court thought that clause might cover.

  Given that performance, it required considerable gall for Miller to write, in the same brief opinion: “[T]here exists some strange misconception of the scope of this provision as found in the fourteenth amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court … of the merits of the legislation. …” On the basis of Miller’s own performance, that view of the clause was not a “misconception” but a perfectly rational litigating stance. And so it proved.

  Substantive due process, though it had originated in the judicial desire to protect slavery, had now been validated as constitutional doctrine. Perhaps “doctrine” implies too much of rationality and intellectual rigor. Since the clause was designed only to require fair procedures in implementing laws, there is no original understanding that gives it any substantive content. Thus, a judge who insists upon giving the due process clause such content must make it up. That is why substantive due process, wherever it appears, is never more than a pretense that the judge’s views are in the Constitution. That has been true from Dred Scott to today.

  The doctrine took a new turn in Allgeyer v. Louisiana.46 Justice Rufus Peckham, writing for a unanimous Court, held that the word “liberty” in the due process clause meant “liberty of contract.” The real Constitution, in an altogether different provision, had been interpreted to prevent states from impairing the obligation only of existing contracts. Now, Peckham invented a provision preventing states from forbidding the making of new contracts that the Justices thought worthy. Louisiana enacted a statute imposing fines on persons who did any act to effect marine insurance with any company that had not complied with the laws of the state. Allgeyer made an open marine insurance contract with a New York company calling for insurance to go into effect when he notified the company that a shipment was being made. He wrote a letter from New Orleans notifying the company of a shipment of cotton and the state levied fines upon him because the company had not complied with Louisiana law.

  Peckham conceded that Louisiana could put such conditions as it pleased upon doing business within the state but insisted that it could not punish the mailing of a letter from the state, where the cotton was, to bring insurance coverage into effect. He said, in a passage conspicuous for its circularity, “To deprive the citizen of such a right as herein described without due process of law is illegal.” Why did the statute lack due process? “Such a statute as this in question is not due process of law, because it prohibits an act which under the Federal Constitution the defendants had a right to perform.” Where in the Constitution is this right to be found? Why, in the due process clause. How do we know that this right is in the due process clause? Because Peckham and his brethren put it there. “The liberty mentioned in that amendment means … the right of the citizen to be free in the enjoyment 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 contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.”

  Louisiana, through its legislature, had already decided that what Allgeyer did was unlawful. So Peckham’s rule that citizens are free to do whatever is “lawful” meant that, without the assistance of any constitutional provision, he and not the legislature would decide what was lawful and what was not. The assumption of authority was open-ended and ad hoc, so it was not too surprising that Peckham wrote, “When and how far [the state’s legislative] power may be legitimately exercised with regard to these subjects must be left for determination to each case as it arises.” This was lawlessness. The Court made up an entire new set of freedoms, including a liberty to enter into contracts the legislature had prohibited, then refused to say what contracts were protected, but promised to go from case to case deciding in each whether the legislature or the Court would govern.

  Peckham was as good as his word. In 1905 he wrote an opinion whose name lives in the law as the symbol, indeed the quintessence, of judicial usurpation of power: Lochner v. New York.47 To this day, when a judge simply makes up the Constitution he is said “to Lochnerize,” usually by someone who does not like the result. A New York statute set maximum daily and weekly hours for bakers. Six Justices struck the law down, calling statutes of this nature “mere meddlesome interferences with the rights of the individual.” “The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment… . The right to purchase or sell labor is part of the liberty protected … unless there are circumstances which exclude the right.” Peckham thought it proper to limit hours where the nature of the work made that reasonable, but baking, in his view, was not such work. Peckham employed another concept that judges have found useful in overturning legislation, the concept of “the police power.” That is a term historically given to the general powers of legislatures. The better view of state legislative power is that, as Justice Iredell said in Calder v. Bull, it encompasses the power to make any enactment whatever that is not forbidden by a provision of a constitution.48 In such cases, as Chi
ef Justice Marshall said, the protection of citizens lies in the “interest, wisdom, and justice” of their elected representatives. But a different view of the police power, to which Peckham subscribed, came into being: that the power had inherent limits independent of any constitutional prohibition, and that judges could enforce those limits by invalidating legislation even where the Constitution was silent. That idea, of course, gave judges free rein to decide what were and were not proper legislative purposes.

  Four Justices dissented in Lochner, but three of them accepted the notion that there was a liberty of contract to be found in the due process clause of the fourteenth amendment. Even the dissent of Justice Oliver Wendell Holmes, Jr., which has become famous in the law, was flawed in this manner. “I strongly believe,” he wrote, “that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract… . The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.”49

  Holmes went on in an oft-quoted passage: “[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views. …” But he spoiled it all by adding, “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” So Holmes, after all, did accept substantive due process, he merely disagreed with Peckham and the majority about which principles were fundamental. Nor did he explain why a free people could not decide to change or abandon principles supported by tradition but not by the Constitution. There was no Justice on the Court who was not prepared to substitute his opinions for those of elected representatives at some point. The difference was merely about when that point was reached.

  It is hard to say why Lochner rather than Allgeyer became the symbol of judicial usurpation of power. Perhaps the reason is that to the modern liberal mind it is essential that the state have the power to protect labor while the regulation of the details of the insurance business are unimportant. Or perhaps it is that Holmes who, oddly enough, given most of his views, is a hero to liberals, wrote a dissent in Lochner. The fact remains, however, that, as judicial performances the two are indistinguishable and equally unjustifiable assumptions of power. But, even with Lochner, the Court had not yet hit its stride. It will be possible to discuss only a few representative cases. Both federal and state courts were producing lots of Lochners.

  Adair v. United States,50 in 1908, struck down, under the due process clause of the fifth amendment, a federal statute banning “yellow dog” contracts—contracts by which an employee agreed not to join a union—on interstate railroads. In 1915, Coppage v. Kansas51 held unconstitutional a similar state law. Adkins v. Children’s Hospital,52 a 1923 decision, invalidated a District of Columbia law setting minimum wages for women. The statute was defended on the ground that women needed special protection. The majority opinion argued that the passage of the nineteenth amendment, giving women the vote, meant that their civil inferiority was almost at a “vanishing point,” which in turn meant that their liberty of contract was equal to that of men. This enabled Holmes, in dissent, to give the case its one memorable remark: “It will need more than the 19th Amendment to convince me that there are no differences between men and women.”53

  The Court went on to strike down a Washington law forbidding employment agencies to collect fees from workers; a Pennsylvania enactment forbidding corporate ownership of pharmacies unless all the corporation’s shareholders were licensed pharmacists; and an Oklahoma statute treating the manufacture of ice as a public utility and requiring any would-be entrant into the business to obtain from the state a certificate of public convenience and necessity. Many of these laws were pernicious. The pharmacy law was designed merely to prevent consumers from enjoying, and pharmacists from suffering, the competition of lower-cost services and medicines. The ice statute was an attempt to give existing ice manufacturers monopoly profits at the expense of consumers. The minimum wage law has the effect of putting less skilled workers out of work and limiting the competition of others with unionized labor. Perhaps there ought to have been a constitutional provision invalidating those laws. But there was not, and the Court had no business striking them down.

  The Court’s use of the concept of substantive due process was not limited to the protection of economic liberty, however. Immediately after the end of World War I, Nebraska and other states, including Iowa and Ohio, enacted laws that made it a criminal offense to teach a child who had not passed the eighth grade any language other than English. One Meyer was convicted in Nebraska of teaching a ten-year-old child attending a Lutheran parochial school to read German. The Supreme Court of Nebraska, in upholding the statute, made its purpose clear: foreigners who came to this country often reared and educated their children in the language of their native land; the children thus thought in that language and hence were inculcated with ideas and sentiments contrary to the best interests of the United States; for that reason, the children must be taught no language other than English.

  In Meyer v. Nebraska,54 the Supreme Court of the United States, in an opinion by Justice McReynolds, who is usually derided as a reactionary, and over a dissent by Justice Holmes, often mistakenly viewed as a liberal, held the statute unconstitutional under the due process clause of the fourteenth amendment. McReynolds began with the usual litany about the liberties protected by the due process clause—freedom from bodily restraint, the right to contract, to engage in the common occupations, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of one’s own conscience, and “generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Some of the listed freedoms, of course, are protected explicitly by other clauses of the Constitution. To the degree that McReynolds would apply them against the states through the due process clause, he was anticipating the later doctrine of “incorporation.” But he did not articulate that technique here.

  McReynolds’s opinion was short and uninformative. He did not doubt the power of the state to compel attendance at some school, require that schools give instruction in English, and prescribe a curriculum for schools it supports. But the prohibition went too far: “Mere knowledge of the German language cannot reasonably be regarded as harmful.” Holmes, today viewed as a civil libertarian, dissented because he thought the statute reasonable: “Youth is the time when familiarity with a language is established and if there are sections in the State where a child would hear only Polish or French or German spoken at home I am not prepared to say that it is unreasonable to provide that in his early years he shall hear and speak only English at school.”55

  Two years later, in 1925, another case involving the states’ power over education came to the Supreme Court in Pierce v. Society of Sisters.56 Oregon’s new Compulsory Education Act made it a misdemeanor for any parent to send a child who had not completed the eighth grade to any school other than a public one. The Society of Sisters operated primary schools that taught the subjects usually taught in the public schools and also provided systematic religious instruction and moral training according to the tenets of the Roman Catholic Church.
The Hill Military Academy conducted primary schools in which the courses of study conformed to state requirements and also gave military instruction and training. Both institutions challenged the act under the fourteenth amendment. Justice McReynolds’s opinion for a unanimous Court stressed that there was no challenge to the power of the state to require attendance at some school, that certain studies be taught, and that nothing be taught that was manifestly inimical to the public welfare. The state could, of course, regulate, inspect, test, and supervise to ensure that its regulations were followed. The statute failed, however, under the doctrine of Meyer v. Nebraska. “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”

  This last sentence suggests that McReynolds could have decided Meyer and Pierce in the same way by using an actual constitutional value rather than a judge-invented one. That was what Justice Hugo Black later attempted when he persuaded the Court that the fourteenth amendment incorporated, and so enforced against the states, various provisions of the Bill of Rights. Whatever the historical merits of that approach, it had the potential of confining judges to rights specified in the Constitution. In the end, Black’s strategy was unavailing. Court majorities accepted the power to enforce both the actual rights incorporated and new rights of their own invention.