Knowledge And Decisions

Courts in the “substantive due process” era — roughly 1905 to 1937 — regarded property not as simply the physical things themselves, but as the options pertaining to those things, and recognized that to destroy options was exactly the same as confiscating property — even though the physical objects as such might be left in the possession of the owners. The economic validity of their reasoning is demonstrated perhaps most dramatically in the case of New York City rent-controlled buildings, whose value is often reduced to negative levels (note abandonment despite the risk of legal penalties), by simply reducing the landlord’s options, while leaving him in sole possession of the physical structure itself. Conversely, working men possessing no physical property nevertheless had options of employment alternatives, and to reduce these alternatives was also considered by the Supreme Court to be a deprivation of property in violation of the Constitution.³⁷⁴ The economic reasoning is as valid here as in the case of business property, for it is essentially the same principle that property rights are basically options rather than physical things. A more fundamental constitutional question regarding the Supreme Court’s role in the “substantive due process” era was whether the protection of property under the Fifth and Fourteenth Amendments required the courts to monitor the economic substance of legislation. In short, the economic argument shows only that there has in fact been a confiscation of property, while the legal question is — was it under due process of law? Later decisions repudiating economic “substantive due process” either deny or sidestep the confiscation of property.

Post-1937 Supreme Court decisions somewhat ostentatiously cited decisions of the economic “substantive due process” era as examples of what it was not going to do.³⁷⁵ Paradoxically, it was Justice William O. Douglas, a leading judicial activist, who wrote opinions sweepingly rejecting the use of “notions of public policy”³⁷⁶ and declared that “we do not sit as a super-legislature to weigh the wisdom of legislation.”³⁷⁷ The apparent paradox turns on the addition of clauses restricting this judicial restraint to areas of “economic and social programs,”³⁷⁸ “the business-labor field,”³⁷⁹ or “business, economic, and social affairs,”³⁸⁰ or “business and industrial conditions.”³⁸¹ In short, a constitutional double standard was created by the court, relieving itself of the burden and the political responsibility for liberal social legislation, while pioneering in new judicial activism in criminal law, civil rights, and political power areas. Far from signalling a reduction in Supreme Court inquiry into the substance of “due process,” it marked the expansion of such substantive issues on an unprecedented scale. “Due process” became the phrase by which federal restrictions — both explicit constitutional provisions and judicial extrapolations — were imposed on state courts and state law enforcement agencies,³⁸² in defiance of the Constitution and its judicial interpretations for nearly two hundred years. The exclusion of evidence,³⁸³ the requirement of government paid defense lawyers,³⁸⁴ restrictions on questioning suspects,³⁸⁵ on search warrants,³⁸⁶ on confessions,³⁸⁷ and even the desegregation of the District of Columbia schools³⁸⁸ and the nullification of Connecticut’s anticontraception law,³⁸⁹ were all based on substantive rather than procedural “due process.” Only the phrase “substantive due process” had been stricken from judicial interpretation.

SUMMARY AND IMPLICATIONS

Trends in American law in the twentieth century — and especially in the Warren Court era — have included (1) a growing volume of law and litigation in general, and especially of laws and litigation growing out of decisions made by institutions insulated from feedback — especially administrative agencies and the federal judiciary, (2) a changing role of appellate courts from defining the boundaries of other institutions’ discretion to second-guessing the substance of the decisions made by those other institutions, and (3) an ever more apparent social partisanship, as distinguished from biased principles, in applying the law.