RAND PAUL & THE LOCHNER ERA

Rand Paul, Tea Party Republican Candidate for U.S. Senate

Rand Paul is the Tea Party candidate running as the Republican Candidate for the United States Senate in Kentucky. He is a young man with some very old thinking. Thinking which harkens back to the early 1900's and a time known as the Lochner Era.

Recently Rand Paul has said some whacky things. He would not have voted for the Civil Rights Acts in the 1960's. He thinks government has no business telling restaurant owners who they have to let into their restaurants.

Lester Maddox

That was basically the position of Lester Maddox who owned the Pickrick Cafeteria in Atlanta. Following the Supreme Court's decision in Brown v. Board of Education and enactment of the Civil Rights Act of 1964 Maddox closed the restaurant after being ordered to desegregate by a court. Maddox thought it was his prerogative to say who could and couldn't come into his restaurant. Maddox, known for repelling African-American customers with pick axe handles and by brandishing a pistol, went on to become Georgia's Governor.

Rand says he wouldn't vote to repeal the decision. He just thinks that the property rights of the restaurant owners have been unfairly impinged upon by the courts and the Congress. Buttressing his argument, Rand extends this thinking to include the burden placed on restaurant owners, and other businesses, who now must comply with an increasing number of laws banning smoking in public places.

Rand is confusing his applesauce with his chicken manure. Rand erroneously thinks that property rights are on an equal plane with civil rights. That was the thinking espoused by an Activist Conservative Supreme Court during the Lochner Era.

In Lochner v. New York, Lochner had been convicted of a New York law which prohibited bakery employees from working more than 10 hours a day or 20 hours a week.

Associate Justice Rufus Peckham

Associate Justice Rufus Peckham delivered the opinion of the Court. He found that the Fourteenth Amendment's Due Process Clause protected Lochner's liberty to contract. This is an example of Substantive Due Process used to enforce property rights over Police Powers of the States. This errant judicial theory was subsequently overruled by the Supreme Court.

Associate Justice John M. Harlan, I

A dissent by Associate Justice John Marshall Harlan, I was joined by Associate Justices White and Day. He rejected the majority's opinion that the right to contract was an unfettered right. He said "I take it to be firmly established that what is called the liberty of contract may, within certain limits, be subjected to regulations designed and calculated to promote the general welfare or to guard the public health, the public morals or the public safety."

Associate Justice Oliver Wendell Holmes

Associate Justice Oliver Wendell Holmes also wrote a dissenting opinion in which said that economic theories are not embodied in the Constitution. He said "[a] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

Rand Paul's thinking coincides with the thinking of Rufus Peckham and the Activist Conservative Supreme Court which enforced a radical theory of Substantive Due Process. They struck down statutes forbidding Yellow Dog Contracts (agreements where the employee promises not to join a union) in Coppage v Kansas, (1905). Then they struck down Minimum Wage Laws in Adkins v. Children's Hospital, (1923).

Associate Justice Owen J. Roberts

In Nebbia v. New York, The Court's opinion was delivered by Associate Justice Owen J. Roberts. There was one concurring opinion and no dissent. The opinon said "The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases. Certain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned. Regulation of a business to prevent waste of the state's resources may be justified. And statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the state's competency"

Associate Justice Harlan Fiske Stone

Civil rights litigation is premised on the famous Footnote Four of United States v. Carolene Products. Justice Harlan Fisk Stone laid the foundation for levels of judicial scrutiny with a preliminary analysis of fundamental rights and suspect classifications. That footnote reads:

"There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth…

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry"

If Rand Paul would have his way then the States' Police Powers would be diminished, environmental laws mangled, minimum wage and worker safety laws would be threatened, to say nothing about the right to join a union. Rand Paul is a young mind trapped in the Lochner Era. We do not need to return to Conservative Judicial Activism and the likes of Associate Justice Rufus Peckham.

The Abortion Cases - Part Two

The Texas laws at the heart of Roe v. Wade proscribed procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life.

There were numerous appellants in the cause. Roe was a single woman who brought a class action suit challenging the constitutionality of the Texas statutes. Halford was a physician with two state criminal cases charging him with violating the Texas statutes, he was allowed to intervene in the case. The Does were a childless married couple, the wife having health issues, and wanted to avoid pregnancy.

Roe, and members of the class action lawsuit were deemed to have presented judiciable controversies to the Court. The Does and Halford did not have standing to sue.

The Wade in Roe v. Wade was Dallas County District Attorney Henry Wade.

I have often heard others say that Roe v. Wade was wrongfully decided. I disagree. This case held that State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term.

Associate Justice Harry Blackmun

The opinion of the Court's 6 to 3 majority was delivered by Associate Justice Harry Blackmun. He said that the interest of the State escalated as the pregnancy, and the attendant fetal development, progressed. For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician .

For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

So, if you think about it, the qualified right to an abortion, under Roe v. Wade, is tenuous because medical science is advancing fetal viability, ex utero, into the second trimester.  Therefore the State's interest in the potential life of the fetus attaches earlier in the pregnancy. Roe v. Wade does not make the right a woman has in her body absolute when it comes to pregnancy.  Likewise the State's interest does not overcome the preservation of the mother's life or health.

For those who are opposed to abortion, I suggest they direct their enormous energy and resources to those advancements in medical science which will increase the state's interest in regulating abortion. The foes of abortion rights must constrain themselves and quit harassing women, killing doctors, and committing other acts of domestic terrorism.

Associate Justice Oliver Wendell Holmes

Those who just can't get over the fact that the Supreme Court can overrule State law as violating the Constitution, need to read the reference to Justice Oliver Wendell Holmes' dissent in Lochner v. New York, with which he prefaced his opinion. " [The Constitution is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

This case is as much about privacy as it is about abortion. In a lengthy discourse Blackmun addressed the history of abortion. He considered Ancient Attitudes, the Hippocratic Oath, the Common Law, English Statutory Law, The American Law, The position of the American Medical Association, and the position of the American Public Health Association,

Further on in the opinion Blackmun engages in a length discourse about what, or when, a person becomes a person. This analysis includes a healthy dose of what religion has to say on the topic. Like I said, this is a well reasoned opinion.

Blackmun properly noted that the Constitution does not explicitly mention the word privacy in its text. That doesn't mean privacy is not a protected interest. Blackmun cited a litany of cases backing up this point.

The opinion said "this right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

Blackmun goes on to say "[w]e, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation."

Roe v. Wade was decided in 1973.

Doe v. Bolton was a companion case to Roe v. Wade. Again Justice Blackmun delivered the opinion of the Court. Doe affirmed the decision in Roe that a woman's right to an abortion is not an absolute right. The case originated in Georgia and required that a physician's decision to perform an abortion must rest upon "his best clinical judgment" of its necessity. The Court said this requirement was not unconstitutionally vague since the medical decision is made in the light of all the attendant circumstances.

The Georgia Statute contained three procedural requirements which the Court said violated the Fourteenth Amendment. The statute required the abortions to be performed at hospitals with Joint Commission on Accreditation of Hospitals. Georgia failed to demonstrate why abortions needed to be performed at hospitals, let alone accredited hospitals.

Georgia's law interposed a hospital committee's approval as roadblock to obtaining an abortion. The committee was created to protect the hospital, not the patient. The Court said: " We conclude that the interposition of the hospital abortion committee is unduly restrictive of the patient's rights and needs that, at this point, have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State."

Using similar reasoning the Court said that requiring acquiescence by two co practitioners also has no rational connection with a patient's needs, and unduly infringes on her physician's right to practice.

The Georgia statute had a residence requirement provision. The Court the residency requirement violated the Privileges and Immunities Clause by denying protection to persons who enter Georgia for medical services there.

Doe v. Bolton was decided in 1973.