A Timeline of Key Events Related to Substantive Due Process
1761: Writs of Assistance Case. James Otis, in the Massachusetts colony, challenges writs of assistance (general search warrants that allowed searches without specifying in advance the person or place to be searched). Otis argues: even if authorized by Parliament, the writs are illegal because “An Act Against the Constitution is void,” citing the work of Sir Edward Coke and Magna Carta.
1776: The Declaration of Independence refers to the natural law tradition familiar to the era: “We hold these truths to be self-evident: that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.”
1798: Calder v. Bull. Justice Chase and Justice Iredell debate the propriety of the Supreme Court enforcing natural law principles.
1823: In Corfield v. Coryell, Justice Bushrod Washington discusses “fundamental” rights as he interprets the Privileges and Immunities Clause of Article IV, § 2.
1856: Wyndehamer v. The People. New York’s highest court uses substantive due process analysis to overturn a state law allowing for the confiscation of liquor. Court declares “all property is equally sacred in the view of the constitution” and that a mere statute cannot deprive a citizen of rights, including the right to property.
1857: Dred Scott v. Sanford. The U.S. Supreme Court uses substantive due process analysis to assert that Congress cannot deprive a person of lawfully held property (slaves) merely by a statute banning slavery in a federal territory. Such a statute abridged the substantive due process rights of the slaveowner. Chief Justice Taney wrote that “the right of property in a slave is distinctly and expressly affirmed in the Constitution” and Congress had “the duty of guarding and protecting the owner [of slave property] in his rights,” just as Congress had the duty to protect every other form of property.
1873: Slaughter-House Cases (5–4). The Court eviscerates the Privileges or Immunities Clause of the 14th Amendment in this and later cases. Consequently, later challenges to state legislation alleged to invade individual rights would have to look to the Due Process Clause or the Equal Protection Clause.
1877: Compromise of 1877, regarded as formal end of Reconstruction. Republicans get the Presidency in a contested election. Federal troops withdrawn from the South.
Munn v. Illinois (7–2). The Court upholds a state regulation of grain elevators against claims that it violated due process and rights to private property.
Railroad strikes across the nation. Industrial warfare continues to flare up in the late 19th and early 20th centuries.
1884: Hurtado v. California. The Court asserts that “Law is something more than mere will exerted as an act of power. . . . [I]t exclud[es], as not due process of law . . . special, partial and arbitrary exertions of power under the forms of legislation.”
1886: Wabash, St. Louis & Pacific Rw. Co. v. Illinois (6–3). The Court limits state power to regulate railroads.
Santa Clara County v. Southern Pacific Rw. Co. (9–0). The Court holds the 14th Amendment’s protection of “persons” includes corporations.
1892: People’s Party (Populists). The People’s Party brings the farmer’s protest movement into national politics. The party nominates General James B. Weaver for president in 1892. Its 1896 platform favors direct election of Senators; a progressive income tax; provisions for initiatives and referenda; government ownership of railroads, on the theory that either “the government must own the railroads or the railroads will own the government”; employment of labor on public works in times of depression; and other “radical” measures.
1894: Workers at the Pullman manufacturing plant strike, leading to a sympathy strike by railroad workers; federal troops sent to Chicago to break strike; strike is broken; federal courts issue injunctions vs. railroad union, its leaders, and locals; communication between locals is forbidden. (The broad decision upholding federal authority to punish unions under the commerce and postal powers in In re Debs (1895) contrasts with the Court’s restrictive holdings with reference to the power of the federal government under the 13th and 14th Amendments to punish Klansmen for violations of the rights of Republicans and blacks in the South during Reconstruction.)
1895: In United States v. E.C. Knight Co. (8–1), the Court articulates a narrow definition of commerce. In Pollock v. Farmers’ Loan and Trust Co. the Court holds the federal income tax unconstitutional.
1897: Allgeyer v. Louisiana (9–0). The Court holds there is a right to make contracts protected by the Due Process Clause of the 14th Amendment.
1905: Lochner v. New York (5–4). Court holds a state law limiting hours of work for bakers violates liberty of contract said to be secured by the Due Process Clause of the 14th Amendment. “Freedom of contract” and “substantive due process” will mark the “Lochner Era,” circa 1900–1936.
1918: Hammer v. Dagenhart (5–4). The Court holds that Congress may not prohibit movement in commerce of articles made by child labor, ruling that manufacturing is not commerce.
1923: Meyer v. Nebraska (7–2). The Court invalidates a state statute prohibiting the teaching of foreign languages in schools as a violation of the “liberty” of the Due Process Clause; shows Lochner Court’s recognition of personal as well as economic rights as “liberty.”
1929: Wall Street’s crash brings the far-from-uniform prosperity of the Harding-Coolidge-Hoover era to an end and triggers the Great Depression. Widespread unemployment, bank failures, business and personal bankruptcy, and foreclosure of mortgages on homes and farms.
1932: Franklin Roosevelt elected President. Legislation proposed and enacted after his inauguration in 1933 marks the start of the New Deal. Roosevelt serves until 1945.
1935: Schechter Poultry Corp. v. United States. The Court invalidates a key New Deal measure (setting minimum wages, maximum hours, and codes of fair competition — including setting minimum prices). The Court holds the act is an unconstitutional delegation of power to the President and exceeds the power of Congress to regulate commerce.
1936: FDR re-elected in a landslide. Carries 46 of 48 states.
1937: West Coast Hotel v. Parrish (5–4). The Court allows a state minimum wage law for women to stand.
1941: United States v. Darby (9–0). The Court overrules Hammer v. Dagenhart, allowing Congress to ban interstate transportation of items made in violation of the Fair Labor Standards Act.
1942: Wickard v. Filburn (9–0). The Court adopts an extremely deferential aggregate impact test for determining scope of federal commerce power.
Skinner v. Oklahoma (7–2–0). The Court invalidates criminal eugenics law (mandatory sterilization for larceny but not embezzlement) as violating Equal Protection Clause. Heightened scrutiny of statute that involved fundamental right of procreation.
1955: Williamson v. Lee Optical (8–0). Burial of substantive due process and of heightened equal protection scrutiny for most purely economic regulation.
1963: Lyndon Johnson (LBJ) assumes presidency following assassination of JFK.
1964: Congress passes Civil Rights Act of 1964 following 75-day filibuster by Southern Senators. The Act prohibits racial discrimination in most public accommodations and prohibits employment discrimination based on race, national origin, religion, or sex.
Johnson re-elected in 1964, defeating “new conservative” Barry Goldwater, who criticizes civil rights legislation and carries several states in the South. Further erosion of once solidly Democratic South. Johnson launches War on Poverty at home. After the 1964 election he begins a gradual but eventually massive escalation of war in Vietnam. Widespread protests against the war begin after escalation.
Heart of Atlanta Motel v. United States (6–3). The Court upholds public accommodation part of Civil Rights Act of 1964 based on the Commerce Clause.
1965: Griswold v. Connecticut. Court upholds right of married couples to use birth control devices under 14th Amendment “right to privacy.”
Voting Rights Act of 1965. Six days of rioting in Watts. In 1967 a “Long Hot Summer” of northern rioting begins.
1968: LBJ declines to run for re-election in face of anti-war protests. Dr. Martin Luther King, Jr. and Robert Kennedy assassinated. Students seize control of administrative buildings at several universities. Richard Nixon elected President. Governor George Wallace of Alabama runs as candidate of American Independent Party and receives 46 electoral votes. Nixon calls for appointment of strict constructionists to Court and greater comparative role for states in the federal system.
1973: President Nixon fires special prosecutor Archibald Cox.
Frontiero v. Richardson (4–4–1). View that gender discrimination should receive strict scrutiny receives 4 votes; three Justices say to wait for the ratification of the Equal Rights Amendment to resolve the issue.
Roe v. Wade (7–2). Limited right to abortion protected under the 14th Amendment Due Process Clause.
1980: Ronald Reagan elected President.
1985: Bowers v. Hardwick (5–4). The Court rejects substantive due process challenge by a homosexual to state sodomy law. Law upheld as applied to private, homosexual, consensual, oral taking place in the home.
1992: Bill Clinton elected President.
Planned Parenthood v. Casey (plurality decision). The Court rejects calls for reversal of Roe v. Wade, but allows much regulation of abortion under “undue burden” standard.
1997: Washington v. Glucksberg (5–4). The Court holds a Washington state statute’s ban on physician-assisted suicide for terminally ill patients does not violate the Due Process Clause of the 14th Amendment. The Court emphasizes the Nation’s history, legal traditions, and practices which it said demonstrate that the Anglo-American common law has disapproved of assisting suicide for 700 years.
2003: Lawrence v. Texas (6–3). The Court overrules Bowers.
2007: Gonzales v. Carhardt (5–4). The Court upholds a congressional statute banning “partial birth abortion” in the absence of a health exception.
2010: McDonald v. City of Chicago (5–4). The Court finds that a substantive right to possess a handgun in the home is protected by the guarantee of liberty in the Due Process Clause.