StrictSeparationist

I'm certainly not disputing the importance that has been ascribed to it over the years- there can be no doubt that when you say "liberty of contract", the average attorney's mind would jump to Lochner. And I don't dispute that it was an important case in the substantive due process line. However, I would not call it a watershed, and I think it's certainly going too far to call it "one of the most important decisions by SCOTUS".

As for other cases of equal importance in this line, there are several that come to mind. The doctrine of substantive due process (not, of course, the natural law component of the "liberty of contract" argument- that dates to 1810) makes its first appearance in Mugler v. Kansas, 123 U.S. 623 (1887). There, Justice Harlan (the original Harlan, that is ), writing for the Court, said "The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty, indeed, are under a solemn duty, to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority." Although the state law in question (a prohibition statute) was upheld, substantive due process gained a major foothold at the Supreme Court level in Mugler.

Then, in Chicago, Milwaukee & St. Paul Railway Company v. Minnesota, 134 U.S. 418 (1890) a state law that created a commission to set "reasonable" rates for freight traffic was struck down by the Court, which stated that "The question of the reasonableness of a rate of charge for transportation by a railroad company... is eminently a question for judicial investigation, requiring due process of law for its determination".

Another singularly important case in the early substantive due process line was Allgeyer v. Louisiana, 165 U.S. 578 (1897), in which a law that prohibited Louisiana corporations from obtaining property insurance by an out-of-state insurance company. Justice Peckham, writing for the Court in Allgeyer, said that the "liberty" of the Due Process Clause was "the right of the citizen to br 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".

Then, of course, came Lochner in 1905. There were, of course, some important liberty of contract cases that followed Lochner, one of which was Adair v. United States 208 U.S. 161 (1908). Justice Harlan once again wrote for the Court, asking if a federal law that criminalized blacklisting union members was a "fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?". Harlan answered the question in the negative, holding the liberty of contract to be supreme over Congress' power to regulate commerce.

And, as just one example among many of the substantive due process cases that pervaded the Court in the 1930s, Morehead v. Tipaldo, 298 U.S. 602 (1936) can be cited. There, the Court struck down as violative of the Due Process Clause a New York minimum wage law.

So as you can see just from this sampling of cases, there are plenty of examples both before and after Lochner of important substantive due process cases. Lochner was certainly an important stepping stone, but I'd say it was hardly any more important than most of these. Unfortunately, we seem to have wandered somewhat off the topic of this thread- perhaps this discussion can be continued by private message.

SLD

First off SS, welcome to the Boards. It's great to see such a serious Constitutional Scholar. Also, don't worry about getting a little off topic, most of the threads that go on longer than one page venture far off topic. In any event, I think you make a good point about Lochner being one in a stepping stone of cases developping the whole concept of due process - something that started with the Slaughterhouse cases and is still going on as we anxiously await a very serious decision shortly on Homosexual rights.

But why then is Lochner viewed as so pivotal? Why is it that Lochner is cited 9 times in Griswold and the others not at all? (I just checked it.) Lochner may be one of those cases that has become pivotal because of its impact in later cases rather than in and of itself. But that doesn't lessen my point about it being so important.

I well remember my Conlaw class some 13 years ago and being accused in a discussion of "Lochnerizing". Frankly, I think the case should be studied in High School history classes - not just in law school. It's legacy (or if you will, that whole line of cases legacies) is still with us whereas such cases as Plessy and Dred Scott that are studied in High School have long since been so discredited. (not to minimize their historical importance). Wanna bet that in the next two weeks we will have a Supreme cite Lochner?

SLD

StrictSeperationist

The citations of Lochner in Griswold appear chiefly in the dissents (the citation in the majority opinion is only to forswear any use of the Lochner doctrine in deciding the instant case), of course, and it's obvious why. This is that peculiar level of almost mystical importance than has been ascribed to Lochner, an importance that I feel is ill-placed. As used here, and really whenever it has been cited in modern times for any reason, it has been to conjure up the specter of the time when the Court abused its power so seriously that it threatened to completely usurp the powers of Congress. My only objection to this use of Lochner-that is, as a symbol- is that it tends to obscure the fact that the liberty of contract doctrine did not suddenly spring into being, fully formed, on April 17, 1905. For someone who is less familiar with the substantive due process line, the level of importance that Lochner has taken on could be quite confusing if one is looking for an actual history of the way the doctrine formed. I realize that no one here is really looking for that, but it is important to understand just how important Lochner really is in relation to other cases of that time.

Absolutely we will- if the Court actually does the right thing with Lawrence and fills in the odd hole in its privacy jurisprudence, you can be sure that Scalia or Rehnquist's dissent will warn, in dire terms, of how the Court threatens to return us to the days of Lochner. You can also be sure that the words "superlegislature" and "judicial tyranny" will see more than their fair share of use in these hypothetical opinions.

Ron Garrett

I acknowledge there is a subset of the right-to-life movement consisting mostly of fundamentalists and Catholics that genuinely believes interference with the progress of a pregnancy is murder, as they consider that ensoulment takes place at conception. I reject this of course because I reject the notion of a soul.

There is another subset that would accept a prohibition on late term abortions as sufficient for the reason you gave, i.e. fetal viability.

My stance is really a two-parter. First of all, I think the right to self-defense when one's life and health are threatened must remain absolute. Some persons would accept the death and/or injury of a pregnant woman from complications surrounding pregnancy as being God's will. Since I reject the notion of any God that is so stupid and heartless, I of course reject their stance.

The second part is as I stated, i.e. that the notion that the government can classify a woman as an incubator for the sake of someone else's superstitions is repugnant and will never be acceptable.

In any case, this is an issue where I think men don't get a vote, including popes and pastors.

hezekiah jones

Strict:

I join with SLD in great appreciation of your thoughtful posts. I would like to reply when I have a moment, but in consideration of thread derailment issues, I'm not sure where.

Perhaps a formal debate:

Economic substantive due process doctrine
Resolved: That The Minnesota Rate Case, Mugler, and Allgeyer were the mere predecessors of Lochner.

Kevin Dorner

Doesn't look like they are going to move on.

"Roe" of Roe vs. Wade wants the decision reversed

I wonder how far this will get in the new... er... "Neo-" judicial climate.

Edit: McCorvey's ("Roe's") Affadavit

Jewel

I couldn't find anything but the emotional and anecdotal kind in her affadavit.

While I'm sure an abortion is not like a walk in the park, I would argue that childbirth is more dangerous. Besides, I really don't think the government should be making my medical decisions for me -- that's between me and my doctor.

BlackSheep

What IS wrong with adoption? Thousands of unwanted children living in orphanages are probably wondering that right now. The religious right seems so hell-bent on "rescuing unborn children" but seem to say "to hell with the unwanted children who are already born!" So many barren hypocrites claim they want to adopt children, but they will not accept a child that isn't "brand new." THEY, in my opinion, aren't fit to raise any child.

A PRESCRIPTION FOR CHANGE - THE DOCTOR IS IN!

HOWARD DEAN FOR PRESIDENT 2004

Stephen Maturin

That remains to be seen, of course, but the more I look at the documents filed with the court the more convinced I become that these clowns haven't got a leg to stand on. Any judge who'd grant that motion ought to be impeached, then pilloried.

That ain't no affidavit; it's a pro-life movement manifesto. It makes a good spot-the-inadmissible-statements training tool, though.

DMB

I think the issue I raised earlier about whether the foetus can or ought to be considered a person is extremely important. Attributing legal personhood to foetuses in some contexts is a way for some anti-choice advocates to erode the possibilities for abortion.

Consider the situation where A is pregnant with a foetus that is subsequently born as B. A third party, C, injures the pregnant A and as a result B is born with some defect or health problem. Should B have the right to sue C as a result? As I understand it, this situation is creeping in in some parts of the USA. I am happy to say that so far the English courts have gone the other way and ruled that A can sue C for the damage to her foetus, but B can't.

I believe that there have also been some American cases of pregnant women being imprisoned to protect their foetuses from the woman's drink or drunk abuse. Sort of "drunk in charge of a foetus". I find this a monstrous concept, and once again it ought only to have any validity if the foetus is considered to be a person.