Progressive Judges in a Progressive Age: Regulatory Legislation in the Minnesota Supreme Court, 1880–1925

1993 ◽  
Vol 11 (2) ◽  
pp. 383-440 ◽  
Author(s):  
Carol Chomsky
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Economic Inequality ◽  
Economic Regulation ◽  
Judicial Activism ◽  
Legislative Reform ◽  
Substantive Due Process ◽  
Laissez Faire

The years between 1890 and 1937 traditionally have been viewed as a period of extreme judicial activism with respect to economic regulation, a time during which courts, both state and federal, interfered on a grand scale with legislative reform agendas. Fueled by the constitutional theories of Thomas Cooley and Christopher Tiedeman, the story goes, the courts became bastions of laissez-faire constitutionalism, relying on doctrines of substantive due process and liberty of contract to invalidate legislative efforts to redress social and economic inequality.

Constitutional Limitations

2018 ◽  
Author(s):  
Scott Burris ◽  
Micah L. Berman ◽  
Matthew Penn, and ◽  
Tara Ramanathan Holiday
Keyword(s):  
Public Health ◽  
Supreme Court ◽  
Due Process ◽  
Reproductive Rights ◽  
Court Cases ◽  
Health It ◽  
State Action ◽  
Substantive Due Process ◽  
State Action Doctrine ◽  
Due Process Rights

This chapter describes “due process,” a Constitutional restriction on governmental actions that impact individuals, in the context of public health. It outlines the doctrines of procedural and substantive due process, including the legal tests that courts apply to decide whether individuals’ due process rights have been violated. It uses examples from Supreme Court cases that have defined due process in the context of public health, including those that struggle to define the scope of reproductive rights. It also examines two cases where public health principles were raised as a justification for governmental action: one about involuntary sterilization and one about Ebola. The chapter concludes with a brief discussion of the “state action doctrine” that defines which public health actors may be challenged on due process grounds.

The Prospects of the New Proceduralism

2019 ◽  
pp. 223-258
Author(s):  
Benjamin S. Yost
Keyword(s):  
United States ◽  
Supreme Court ◽  
Error Correction ◽  
Capital Punishment ◽  
Due Process ◽  
Substantive Due Process

The final chapter illuminates the book’s most significant implications. It first highlights the project’s improvements on extant versions of proceduralism. Targeting both legal and philosophical proceduralist critiques, it recounts how they fall prey to the retributivist challenge and unwittingly entail wholesale abolition. The procedural abolitionism developed here, it turns out, has no such shortcomings. The second part of the chapter assesses the book’s contributions to the constitutional debate over capital punishment, analyzing Judge Rakoff’s opinion in United States v. Quinones. Rakoff holds that the specter of irrevocable mistake renders capital punishment unconstitutional on substantive due process grounds; this ruling suggests that substantive due process furnishes the vehicle by which proceduralism could make inroads with a future Supreme Court. However, Quinones was overturned, mainly because its emphasis on error correction conflicts with the hallowed value of finality. Chapter 5 argues that the associated concerns do not generate reasons to reject abolitionism.

“The Painful Duty of This Tribunal”

2019 ◽  
pp. 156-174
Author(s):  
David S. Schwartz
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Common Law ◽  
Legal Profession ◽  
Judicial Activism ◽  
Personal Interest ◽  
Centennial Celebration ◽  
Laissez Faire ◽  
John Marshall ◽  
Opinion Writing

The emergence of McCulloch v. Maryland as a foundational case of constitutional law stemmed from several factors, each coming together on its own separate timeline, converging on the years 1895 to 1901. These factors included the personal interest in John Marshall’s jurisprudence held by Supreme Court justices John Marshall Harlan and Horace Gray; the emergence of an autonomous legal profession; the related transition from the Grand Style to a common-law style in constitutional opinion writing; the publication of Harvard Professor James Bradley Thayer’s first-ever constitutional law casebook; and the conservative judicial reaction against the Populist movement. Marshall was canonized in a 1901 “John Marshall Day” centennial celebration consisting of conservative and backward-looking speeches that used Marshall as a symbol to validate conservative judicial activism and laissez-faire jurisprudence.

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.

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.

Toward a Progressive Realisation of Socio-economic Rights in Ghana: A Socio-legal Analysis

2017 ◽  
Vol 25 (1) ◽  
pp. 91-113
Author(s):  
Nana Tawiah Okyir
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Social Movements ◽  
Supreme Court ◽  
State Policy ◽  
National Development ◽  
Building Blocks ◽  
Judicial Activism ◽  
Economic Rights ◽  
The Supreme Court

This article argues for the strengthening and entrenchment of socio-economic rights provisions in Ghana's jurisprudence. The purpose of this entrenchment is to engender judicial activism in promoting more creative pathways for enforcing socio-economic rights in Ghana. The article traces the development of socio-economic rights in Ghana's jurisprudence, especially the influence of the requirements of the international rights movement, particularly of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The article delves into the constitutional history of Ghana and its impact on the evolution of rights in the country. Of particular historical emphasis is the emergence of socio-economic rights under the Directive Principles of State Policy in the 1979 Constitution. However, the significance of the socio-economic rights only became profound with the return to democratic rule under the 1992 Constitution, again under a distinct chapter on Directive Principles of State Policy. However, unlike its counterpart, the chapter on the Fundamental Human Rights and Freedoms, which is directly enforceable, the Directive Principles of State Policy were not. It took the Supreme Court of Ghana a series of landmark decisions until finally, in 2008, it arrived at a presumption of justiciability in respect of all of the provisions in the 1992 Constitution. It is evident that prior to this, the Supreme Court was not willing to apply the same standards of adjudication and enforcement as it ordinarily applies in respect of rights under the chapter on Fundamental Human Rights and Freedoms. Having surmounted the non-justiciability hurdle, what is left is for the courts to begin to vigorously pursue an agenda that puts socio-economic rights at the centre of Ghana's rights adjudication framework. The article draws on comparative experiences from India and South Africa to showcase the extent of judicial creativity in rights adjudication. In India, the courts have been able to work around provisions restricting the enforcement of Directive Principles by often connecting them to Fundamental Freedoms. In South Africa, there is no hierarchy between civil and political rights on the one hand and socio-economic rights on the other; for that reason, the courts give equal ventilation to both sets of rights. The article further analyses these examples in the light of ongoing constitutional reforms in Ghana. It argues that these reforms fall short of the activism required to propel socio-economic rights adjudication to the forefront in Ghana's jurisprudence. In this regard, the article proposes social movements as a viable tool for socio-economic rights advocacy by recounting its success in previous controversial issues in Ghana. The article also connects this to other important building blocks like building socio-economic rights into a national development blueprint. Overall, the article calls for an imaginative socio-economic rights enforcement approach that is predicated on legislation, judicial activism, social movements and a national development blueprint aimed at delivering a qualitative life for the Ghanaian.

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