Procedural Assault on the Warren Legacy: A Study in Repeal by Indirection, The (original) (raw)
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bepress Legal Series, 2005
The coming of the New Deal may have spelled the end of the Lochner era in the federal courts, but in the state courts Lochner's doctrine of economic substantive due process lives on. Since the New Deal, courts in almost every state have rebuffed the United States Supreme Court and have interpreted their own state constitutions' due process clauses to provide substantive protections to economic liberties. This Article presents a comprehensive survey of state court use of economic substantive due process since the New Deal. It includes an enumeration of every instance since 1940 of a state court of highest review protecting economic liberties through state constitutional economic substantive due process. Previous work on the subject has examined this post-New Deal rejection of the United States Supreme Court's jurisprudence, but this is the first study to comprehensively analyze the trends of that rejection. This comprehensive analysis reveals an intriguing, and potentially controversial, discovery. The discovery is that although state courts still to some degree apply state constitutional economic substantive due process in protecting economic liberties, the rate of that application declined dramatically in the 1970s and 1980s. The decline is surprising considering that through the 1940s, 1950s, and even 1960s, a full thirty years after the New Deal, state courts did not shy from invoking the long-past ghost of Lochner. This Article argues that the reason for this relatively sudden decline is that many state judges were comfortable applying economic substantive due process until the coming of Roe v. Wade and its related right to privacy cases. Because the right to privacy cases utilized substantive due process, but of the non-economic variety, a continued use of economic substantive due process provided legitimacy to their holdings. Faced with either legitimizing opinions legalizing abortion and other privacy rights, or rejecting substantive due process altogether, conservative state jurists chose the latter. These conservatives joined with progressive jurists who were already hostile toward the protection of economic liberties. Thus, with these strange bedfellows aligned, the use of economic substantive due process under state constitutional law quickly withered into the rare, but not quite extinct, doctrine that it is today.
Due Process as Choice of Law: A Study in the History of a Judicial Doctrine
William and Mary Bill of Rights Journal, 2016
This Article argues that procedural due process can be understood as a choice-of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law - personal notice, oral hearing, neutral judge, and jury trial - and summary procedures employed in administrative agencies.This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It begins with a reading of due process cases in state courts before the Civil War, and argues that, in many of these cases, courts were asked to negotiate the institutional conflict between themselves and various summary bodies, including non-common-law courts, magistrates, commissioners, corporations, and even legislatures, which played a significant role in t...
The Warren Court and the Concept of a Right
1999
The Warren Court is dead. None of its Justices remain on the benchindeed, only Justice White survives-and the recent history of the Supreme Court has been in large part a history of repudiating controversial Warren Court doctrines. Public opinion likewise repudiates Warren-style judicial activism, and constitutional scholarship-which as recently as the mid-1980s consisted in considerable measure of theoretical defenses for Warren Court-inspired methods of interpreting the Bill of Rights-has grown increasingly skeptical of expansive interpretive strategies. It is quite possible that future constitutional historians will regard the Warren era as an aberration. The Warren Court, after all, was not just the most liberal Supreme Court in American history, but arguably the only liberal Supreme Court in American history. Is there any reason, beyond a nostalgia that is by no means universally shared, to continue discussing the Warren Court? It seems that nearly everyone now agrees that judicial activism is pernicious and judicial restraint desirable. And everyone seems to believe that this opinion, if true, requires one to discard the Warren Court's jurisprudence. I will argue that these conclusions are mistaken, for the hackneyed contrast between activism and restraint misses the true significance of the Warren Court, the real reason that its jurisprudence merits continued discussion. That significance lies not in the Warren Court's transformation of the judicial role, but in its transformation of the concept of a legal right. The problem with focusing on judicial role is this: "Judicial activism" and "judicial restraint" originated as obscure lawyers' terms for concepts that had a fairly precise meaning, or rather, a handful of fairly precise meanings. To Holmes's law partner and Brandeis's teacher James Bradley Thayer, who wrote the first major article on the subject, the doc-"
Reviving Hugo Black? The Court's 'Jot for Jot' Account of Substantive Due Process
New York University Law Review, 1998
In Graham v. Connor, the United States Supreme Court held that the Fourth Amendment effectively preempts any substantive due process claims that law enforcement officers used excessive force in the course of an arrest. Graham's disarmingly simple rationale was that an explicit textual provision trumps a more general constitutional provision. This article argues that this rationale, as subsequently invoked by the Supreme Court and expansively applied by the lower courts in First, Fourth, Fifth, and Eighth Amendment cases, may ultimately have a pervasive impact on substantive due process. At the very least, the logic of Graham requires that substantive due process be confined to its current doctrinal limits. Carried to its furthest extreme, Graham requires overruling the Court's substantive due process "unenumerated rights" caselaw altogether. The author argues that Graham is an analytical and doctrinal oddity, inconsistent with well-accepted and regularly enforced p...
American Constitutional Law and History
2012
Preface xv Articles of Confederation xvii The Constitution of the United States xxiii Timeline of Events in American Legal and Political History xxxvii Biographies of Selected Justices of the Supreme Court li Chapter One • The Constitution and Judicial Power 3 A. Background to the Creation of the Constitution 3 B. Judicial Review 6 1. Review of Federal Action 6 A Timeline of Events Leading to Marbury v. Madison 7 Marbury v. Madison 9 2. Judicial Review of State Actions Martin v. Hunter's Lessee C. Modes of Constitutional Interpretation 1. Historical Background Cohens v. Virginia Calder v. Bull 2. Sources of Constitutional Interpretation a. Text b. History c. Structure d. Precedent e. Consensus f. Purposes 3. The Modern Court and Constitutional Interpretation District of Columbia v. Heller D. The Limits of the Judicial Power 1. Justiciability a. Standing
A Workable Substantive Due Process
Notre Dame Law Review, 2020
This Article has three objectives. First, it provides a conceptualization of the various flavors of due process adjudication. Our aim here is not to add a new theory, but to explain what exists in new ways—to put all the pieces of the due process puzzle together and explain how they relate to each other. To the surprise of some, perhaps, we find a small kernel of originalist truth within current forms of substantive due process. In short, the “shocks the conscience” strand of substantive due process jurisprudence prohibits some egregious torts by the state. At a certain level of abstraction, this approach can be squared with the original public meaning of the Fourteenth Amendment’s Due Process Clause during ratification. Second, the Article explains the confusion currently overtaking the circuits. The confusion we refer to is not about nitty-gritty details. It is fundamental. Courts do not know what law to apply to a given plaintiff’s claim under substantive due process doctrine. Th...
A House Divided: Substantive Due Process in the Twentieth Century
Nebraska Law Review, 1983
See infra notes 60-65. 6. UNGER, supra note 1, at 265. 7. The theory of coherence presented here has multiple sources. W. BiSHI & C. STONE, LAW, LANGUAGE, AND ETmcs 321-45 (1972) [hereinafter cited as BisHm & STONE], have gathered a sampling of the works of two eminent coherence theorists, W. Quine and Brand Blanshand. The adaptation of their theories into a jurisprudential method labeled "Holistic Jurisprudence" is the achievement of Professor John Snowden of the University of Nebraska College of Law. The result of his adaptation and its application can be found inA