Judicial Response to Regulatory Legislation

In the late nineteenth century, this surge in judicial review involved judicial scrutiny of legislative regulation of the social and economic consequences of industrialization. The American Law Review, for example, claimed in 1894 that "it has come to be the fashion . . . for courts to overturn acts of the State legislatures upon mere economical

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theories and upon mere casuistical grounds." ¹⁶ Upon close examination, in instances of both regulatory and protective legislation, and in both state and federal courts, judicial behavior was far more complex and less doctrinaire than once believed.

State Courts and Economic Regulation

Courts employed several constitutional hooks on which to impale economic regulatory measures. The most important was substantive due process of law, which was "the most formidable doctrine in the judicial arsenal of antilegislative weapons." ¹⁷ Due process before the Civil War had essentially one meaning: procedural. The due-process provisions in state constitutions and the Fifth Amendment to the federal Constitution provided that every person was entitled to an orderly proceeding that afforded an opportunity to be heard and to be protected in his or her rights. But due process began about the time of the Civil War to take on another substantive meaning that derived from the old doctrine of vested rights. Substantive due process meant that there existed an irreducible sum of rights that vested in the individual and with which government could not arbitrarily interfere. In short, there were substantive, not just procedural limitations on legislative power. The New York Court of Appeals in 1856, in Wynehamer v. People, gave the first significant decision involving the doctrine, and a year later Chief Justice Roger B. Taney, in Dred Scott, weakly argued that the due-process clause of the Fifth Amendment protected slave property from federal regulation. ¹⁸

Substantive due process had two purposes. First, it had certain antiredistributive economic effects. When legislatures attempted through regulatory measures to redistribute the costs of economic development, high state courts objected on substantive due-process grounds, thereby favoring the wealthy at the expense of the poor.

Second, it was a means of voiding special legislation that aided one group over another. Thus, substantive due process was not used exclusively, or even predominately, in state appellate courts to protect the rich from the poor. For example, in People v. Gillson ( 1888), the New York Court of Appeals invalidated an act that prohibited the Atlantic and Pacific Tea Company from giving a teacup and saucer to consumers who purchased its coffee. What was at stake in this litigation had nothing to do with the redistribution of wealth but instead involved the right of "citizen traders" to sell and consumers to buy a cup, a saucer, and coffee, rather than coffee alone, for the price of the coffee. ¹⁹ The Iowa Supreme Court in 1900 struck down legislation that permitted the use of oil for lighting purposes only in lamps made by a particular manufacturer, but not in other lamps. The judges reasoned that as a matter of right any producer capable of manufacturing the required oil should be able to sell it. ²⁰

State courts upheld the vast majority of economic regulatory measures, leaving intact legislation that demonstrated a proper use of the police powers to promote health, safety, morals, and welfare. Typical was the fate of most occupational licensing laws, where only a whisper of constitutional conflict was heard in the courts. Appellate judges overturned these statutes only when they granted some advantage to one occupational group over another. In People v. Ringe ( 1910), for example, the New York Court of Appeals considered the constitutionality of an "undertaker-embalmer" statute that mandated that all undertakers be duly licensed embalmers. The judges made clear that the legislature had authority to regulate the profession, but that it had gone too far in combining the two jobs in one person. It was common knowledge that

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undertakers had not always been embalmers and that most rural undertakers were not embalmers at the time the case was decided. The law was simply a way of giving undertakers a monopoly over the funeral business, cutting out embalmers, and having little to do with the health, morals, or safety of the community. What bothered the court in Ringe was that the statute vested monopoly power in an occupational group, interfering with the "common law right to engage in a lawful business" and involving an "unnecessary and unwarrantable interference with constitutional rights." ²¹

Date: 2015-01-29; view: 713