Will, Judgment and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Proces Clause

The modern law of substantive due process provides disparate treatment to certain “personal” rights, on the one hand, and so-called “economic rights,” on the other. Thus, laws that interfere with “liberty of contract” or regulate the use of property without destroying its value pass constitutional muster if a court can hypothesize a “rational basis” for the enactment. By contrast, courts subject laws burdening certain personal liberties, including the so-called right of privacy, to more intensive scrutiny and such provisions rarely survive judicial review. The most complete judicial explanation for this disparate treatment of economic and other rights can be found in two opinions — one a plurality opinion and one a concurrence — authored or co-authored by Justice Souter: Planned Parenthood v. Casey and Washington v. Glucksberg. Taken together, these opinions mount a comprehensive “original meaning” defense of the enterprise of substantive due process, while at the same time insisting that decisions such as Lochner v. New York and Adkins v. Childrens’ Hospital, each of which accorded significant protection to liberty of contract, were incorrect and, in addition, properly overruled. According to the Justice, “substantive due process” has a long historical pedigree, and the duty of judicial review articulated in Marbury v. Madison requires judges to employ the due process clauses to protect certain fundamental liberties. Ironically, in his Glucksberg concurrence, Justice Souter invoked decisions and scholarly commentary from the 19th and early 20th century recognizing economic liberties to help build his case that substantive due process has a deeply rooted historical pedigree. This article evaluates Justice Souter’s effort to justify the bifurcation between economic and other rights in the due process context. Both Casey and Glucksberg, it is shown, suggest or adumbrate several bases for “translating” the principles purportedly contained in the Due Process Clauses and enforced during the Lochner era, in light of changed economic circumstances. These changes, it is said, undermine the rationale for protecting economic liberties and supposedly required the Court to overrule the numerous and deeply-rooted decisions that did protect such liberties. Various constitutional scholars have offered similar translation-based justifications for abandoning meaningful protection for economic liberty in the due process context. None of the translations offered or hinted at by Justice Souter withstands scrutiny. For instance, Justice Souter and others have argued or adumbrated the claim that protection for economic liberties somehow brought on or exacerbated the Great Depression, and that abridgment of economic liberties was necessary to counter-act the Depression and stabilize the national economy. This claim has no basis in macroeconomic theory, which if anything suggests that many New Deal-era abridgments of contractual liberty, including the National Industrial Recovery Act, actually interfered with the process of normal economic adjustment, stultified economic expansion and thereby prolonged the Depression. Moreover, contrary to the Justice’s suggestion, no changed circumstances established that decisions protecting economic liberty somehow prevented states and the national government from assuring “minimal levels of human welfare.” Real wages rose during the Lochner era, thereby increasing human welfare. In addition, no aspect of the Court’s economic liberty jurisprudence prevented states and/or the national government from enhancing human welfare by means of redistributive taxation and spending. Furthermore, no “changed circumstance” suggested that employers were the sole beneficiaries of their employees’ labor or uniquely responsible for employees’ economic plight. Thus, no “new facts” justified repudiation of Adkins, for instance, which rested upon the purely normative judgment that minimum wage regulation was an invalid means of redistributing income between employers and employees, given the alternative of taxpayer-funded social programs. Finally, the apparent suggestion by Justice Souter and others that the presence of unequal bargaining power somehow justified wholesale repudiation of economic liberty cannot be taken seriously. Even if some industries are characterized by such unequal bargaining power, many, like the baking industry in Lochner, are not, and the presence of unequal bargaining power in some industries cannot justify trumping economic liberty in those industries that are highly competitive. In any event, none of Justice Souter’s suggested translations, either alone or taken together, even purports to justify the wholesale repudiation of economic liberty. Instead, each such translation merely purports to justify the reversal of decisions protecting liberty of contract from state or federal abridgment. None purports to justify the failure to protect other forms of economic liberty, particularly the liberty to pursue one’s occupation without harming others. Thus, decisions such as United States v. Carolene Products, that sustained statutes banning entire harmless industries without justification, cannot be justified as “translations” of earlier decisions, such as New State Ice Company v. Liebmann, that provided robust protection for occupational liberty. Justice Souter and other proponents of “translation” have thus failed to offer a convincing rationale for their repudiation of the sort of economic liberties protected under the aegis of the due process clause during the Lochner era. Absent some new explanation for this repudiation, the failure to protect economic liberties calls into question the assertion by Justice Souter and others that the disparate treatment of economic and other rights can be explained as a faithful application of the original meaning of the Due Process Clause.