From Warren to Burger: The Rise and Decline of Substantive Equal Protection

1972 ◽  
Vol 66 (4) ◽  
pp. 1226-1233 ◽  
Author(s):  
Wallace Mendelson
Keyword(s):  
Due Process ◽  
Fourteenth Amendment ◽  
Equal Protection ◽  
Judicial Activism ◽  
Bill Of Rights ◽  
Burger Court ◽  
Judicial Supremacy ◽  
Warren Court ◽  
Substantive Due Process

Substantive due process is the classic, if temporary, achievement of judicial activism. The Roosevelt Court destroyed it out of respect for the democratic processes. Mr. Justice Black's “incorporation” ploy was calculated to forestall backsliding by equating the Fourteenth Amendment with the Bill of Rights. But the Bill of Rights, after all, is quite old fashioned. It does not cover many matters deemed crucial in our day, e.g., poverty. To fill this “gap” the Warren Court used “equal protection” as “actively” as the pre-Roosevelt Court had used “due process.” Obviously inspired by the Black incorporation principle, the early Burger Court is doing to substantive equal protection what the Roosevelt Court did to substantive due process. A generation ago we called it a “return to the Constitution,” now it is called strict construction. If in time the full Nixon Court succumbs to the magic of power and imposes its ideals upon the nation, some of us may find embarrassment in our quondam efforts to convince ourselves that judicial activism (it used to be called judicial supremacy) is a proper handmaiden of democracy.

Legal Aid for Children: Some Reflections

1979 ◽  
Vol 4 (4) ◽  
pp. 29-32
Author(s):  
Brian Lucas
Keyword(s):  
United States Of America ◽  
Due Process ◽  
Juvenile Court ◽  
The United States ◽  
Fourteenth Amendment ◽  
Court System ◽  
Bill Of Rights ◽  
Legal Aid ◽  
Legal Representation ◽  
The Supreme Court

In its Second Main Report, Law and Poverty in Australia, the Commission of Inquiry into Poverty expressed the view that “legal representation for children appearing before the children's court, whether in the criminal or protective jurisdiction, is necessary if justice is to be done.”This view coincides with the opinion of the Supreme Court of the United States of America in In re Gault. It has been said that this decision “unleashed a frontal assault on the juvenile court system.” It confirmed that juveniles were entitled to “due process” and the same protection which the Fourteenth Amendment and the Bill of Rights afforded to adults.

Plessy’s Long Shadow

2004 ◽  
Author(s):  
Derrick Bell
Keyword(s):  
United States ◽  
Civil Rights ◽  
Due Process ◽  
The United States ◽  
Fourteenth Amendment ◽  
Equal Protection ◽  
Political Equality ◽  
Race Riots ◽  
Black And White ◽  
The Law

The supreme court’s 1896 Decision in Plessy v. Ferguson served to bring the law into a dismal harmony with the nation’s view of race in life. The Court decided that segregation in public facilities through “separate but equal” accommodations for black citizens would satisfy the equal protection clause in the Fourteenth Amendment. The years since the sporadically enforced policies of Reconstruction ended in 1876 had been hard for those former slaves and their offspring whose slavery had legally ended with the passage of the Thir­teenth Amendment in 1865. To ensure their rights to due process and the equal protection of the law, the Fourteenth Amendment in 1868 provided that “all persons born or naturalized in the United States, . . . are citizens of the United States and of the State wherein they reside.” Despite legislation intended to provide enforcement of these rights, the laws were poorly enforced and most were subsequently declared unconstitutional. Corrupting law but relying on intimidation and violence, southern governments stripped blacks of political power. Given meaningful if unspoken assurances that the federal government would not protect black civil rights, conservative southerners regained power utilizing racial fear and hatred to break up competing populist groups of poor black and white farmers. In addition to the disenfranchisement of blacks, whites sought to secure their power through intensive anti-Negro propaganda campaigns championing white supremacy. Literary and scientific leaders published tracts and books intended to “prove” the inhumanity of the Negro. In this hostile climate, segregation laws that had made a brief appearance during Reconstruction were revived across the South, accompanied by waves of violence punctuated by an increase in lynchings and race riots. In an effort both to protest the indignity of segregation and challenge its validity, Homer Plessy, acting for a New Orleans civil rights group, attempted to ride in a railroad car reserved for whites. He was arrested and convicted of violating Louisiana’s 1890 segregation law. On appeal, the Supreme Court acknowledged that the Fourteenth Amendment required absolute equality of the two races before the law, adding: “but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.”

scholarly journals The Argument for Same-Sex Marriage

2018 ◽  
Author(s):  
Nelson Tebbe ◽  
Deborah Widiss ◽  
Shannon Gilreath
Keyword(s):  
Due Process ◽  
Equal Access ◽  
Equal Protection ◽  
University Of Pennsylvania ◽  
Gay Identity ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Substantive Due Process ◽  
The Right ◽  
Made In

159 University of Pennsylvania Law Review PENNumbra 21 (2010)Professors Tebbe and Widiss revisit the arguments they made in "Equal Access and the Right to Marry" and emphasize their belief that distinguishing between different-sex marriage and same-sex marriage is inappropriate. They lament the sustained emphasis on the equal-protection and substantive-due-process challenges in the Perry litigation and suggest that an equal-access approach is more likely to be successful on appeal.Professor Shannon Gilreath questions some of the fundamental premises for same-sex marriage. He challenges proponents to truly reflect on "what there is to commend marriage to Gay people," and points to his own reversal on the question as evidence. Though he stands fully in opposition to critics of same-sex marriage who use the stance to veil attacks on equality generally, Gilreath argues that marriage can be seen as a further institutionalization of gays and lesbians that risks "assimilationist erasure of Gay identity." Gilreath concludes by noting that to the extent that marriage is assumed to be normatively good, the Tebbe-Widiss equal access approach to same-sex marriage recognition may be the most successful; still, he invites those on all sides of the debate to vigorously challenge that assumption.

Protective Labor Legislation in the Courts: Substantive Due Process and Fairness in the Progressive Era

2013 ◽  
Vol 31 (2) ◽  
pp. 275-323 ◽  
Author(s):  
Claudio J. Katz
Keyword(s):  
New York ◽  
Progressive Era ◽  
Due Process ◽  
Private Property ◽  
Working Hours ◽  
Fourteenth Amendment ◽  
Social Darwinism ◽  
Labor Legislation ◽  
Substantive Due Process ◽  
Chief Characteristic

The Supreme Court's decision inLochner v. New York(1905), invalidating an act limiting working hours for bakers as a violation of contractual freedom, has come to symbolize an era in constitutional law. The period covers the years from the end of the Gilded Age through the Progressive Era. Its chief characteristic, according to its critics, is the judiciary's hostility to progressive labor legislation. Statutes intended to protect vulnerable classes from the ravages of industrialization were routinely defeated in the courts. Progressives pioneered an interpretation in whichLochnerbecame a leading “anticanonical” case, wrongly deploying the doctrine of substantive due process to shield inherited distributions of wealth and power. The time is long past when scholars characterized the era as a product of judges' reactionary commitments to laissez-faire or, worse, to Social Darwinism, following Justice Holmes's quip, dissenting inLochner, that “the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.” Contemporary scholars have reconstructed the period's jurisprudence, finding in it a principled commitment to a conception of justice grounded in the Founding. The most widely accepted explanation, developed by Gillman's influential study, is that substantive due process embodied a principle of neutrality requiring courts to distinguish the authentic public aims of legislation from illegitimate attempts to advantage some classes at others' expense. An alternative explanation is that judges, drawing on the theory of natural rights, developed the doctrine of substantive due process to limit government's discretion to encumber prepolitical rights to private property and liberty of contract.

Some Thoughts on the Constitutionality of Good Samaritan Statutes

1982 ◽  
Vol 8 (1) ◽  
pp. 27-43
Author(s):  
Barry Sullivan
Keyword(s):  
Due Process ◽  
Common Law ◽  
Equal Protection ◽  
Good Samaritan ◽  
Federal Constitutional ◽  
Medical Emergencies ◽  
The Common ◽  
Substantive Due Process ◽  
Good Samaritan Laws

AbstractGood Samaritan laws provide legal immunity to persons who assist in medical emergencies. Because good Samaritan laws eliminate the common law right of victims to secure redress for their injuries, these statutes raise certain constitutional questions. The Article begins by examining the vulnerability of good Samaritan statutes to federal constitutional attack on substantive due process and equal protection grounds. It then considers the susceptibility of such laws to state constitutional attack on the same grounds. The Article concludes that while such statutes are not likely to violate federal substantive due process and equal protection provisions, they may be held unconstitutional on similar state grounds.

Implying a Federal Constitutional Right to Education

2019 ◽  
pp. 135-163
Author(s):  
Derek W. Black
Keyword(s):  
United States ◽  
Due Process ◽  
The United States ◽  
United States Constitution ◽  
Equal Protection ◽  
Right To Education ◽  
Federal Constitutional ◽  
Substantive Due Process ◽  
Constitutional Right

In this chapter, Derek W. Black surveys the various litigation, judicial, and scholarly theories through which courts might recognize a right to education under the United States Constitution. He begins by sorting those theories into their major doctrinal categories and subcategories and explaining their basic arguments, including substantive due process, equal protection, privileges and immunities, citizenship, and originalism. Black then critically evaluates those theories, examining both the positives and negatives of the leading theories. He concludes that while a number of theories are plausible, scholarly theories have tended toward originalism in recent years and are the most likely to be successful before the courts.

Have Justices Stevens and Kennedy Forged a New Doctrine of Substantive Due Process?

2013 ◽  
Vol 1 (1) ◽  
pp. 129-162
Author(s):  
Douglas S. Broyles
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Fourteenth Amendment ◽  
Fundamental Rights ◽  
Same Sex ◽  
Supreme Court Justice ◽  
Review Finding ◽  
Substantive Due Process ◽  
Definition Of ◽  
The Right

As issues such as the nature of the sexual, marital, and other relationships and claims—both personal and economic—continue to face Americans and America’s lawyers, the question of how we as a people distinguish fundamental from non-fundamental rights is one of first importance. In constitutional law, the Supreme Court has addressed this question through the doctrine of “Substantive Due Process.” In his lengthy dissent in McDonald v. Chicago—his final opinion as a Supreme Court Justice—Justice John Paul Stevens claimed that substantive due process is fundamentally a matter of how we interpret the meaning of the word “liberty.” The issue as to whether the right is specifically enumerated in the Amendments is irrelevant, Stevens argues, if the interest is naturally within the definition of “liberty.” Moreover, Justice Stevens’s argument in McDonald was approved by his liberal colleagues on the Court, which indicates that his theory of liberty may well become the baseline for determining what are, and what are not, fundamental rights. However, in the recent case of United States v. Windsor, the Court refused to employ the substantive due process doctrine, as traditionally understood, as the basis for striking down the Defense of Marriage Act (DOMA). Instead, the Court employed rational basis review, finding that the legislative purpose and effect behind DOMA was “to disparage and to injure” those wishing to enter into same-sex marriages, and thus served “no legitimate purpose.” Still, Justice Kennedy clearly signals in his Windsor opinion that some formulation of the substantive due process doctrine remains alive and well as a constitutional basis for deciding Fifth and Fourteenth Amendment Due Process “liberty” interests such as same-sex marriage. Indeed, both Justices share a conceptual core in their understandings of what constitutes a constitutionally protected liberty interest.

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