The Volokh Conspiracy

It is often argued that regulatory takings doctrine is a form of “Lochnerism” and a revival of “substantive due process” constraints on economic regulation.  So, for instance, in his Dolan v. Tigard dissent, Justice Stevens traces the history of the doctrine to the Lochner period and finds the roots of regulatory takings doctrine in late-19th century substantive due process.

The so called “regulatory takings” doctrine . . . has an obvious kinship with the line of substantive due process cases that Lochner exemplified. Besides having similar ancestry, both doctrines are potentially open ended sources of judicial power to invalidate state economic regulations that Members of this Court view as unwise or unfair.

As a historical matter, Justice Stevens was correct that the first decisions obligating states to compensate  landowners for the taking private property for public use  (Chicago, Burlington & Quincy Railroad v. Chicago) and holding that the regulation of land use could require compensation if it “goes too far” (Pennsylvania Coal v. Mahon) date from the so-called “Lochner era.”  Curiously enough, the authors of these two opinions are, respectively, Justice John Marshall Harlan and Justice Oliver Wendell Holmes.  Why is this curious?  Because Justices Harlan and Holmes wrote the two dissenting opinions in Lochner.  So while contemporary commentators and critics may see regulatory takings doctrine as Lochnerism reborn.  Those who challenged Lochner at the time apparently saw things differently.

Let’s say someone hired me to write an amicus brief in the McDonald Second Amendment case, and my goal was to get the Court to overrule the SlaughterHouse Cases (holding that the Privileges or Immunities Clause is a virtual nullity) and get the Court to hold that the Clause protects a right to bear arms, how would I go about it?

First, I would recount the scholarly consensus that SlaughterHouse was incorrectly decided, in that the P or I Clause was meant to provide substantive protection for individual rights beyond the extremely narrow category of rights enumerated in SlaughterHouse.

Second, I would explain why I think it’s important to decide this case on P or I grounds.  My argument would be that in due process incorporation cases, the Court has consistently (and thoughtlessly) determined that the scope of the right against the states is precisely the same as the scope of the right against the Federal government.  This is problematic in the context of the right to bear arms because of the confusion over what the “militia” language in the Second Amendment means.  Heller came out the “right” way, but by a bare 5-4 majority, with much dispute about whether the Second Amendment was meant to protect an individual right to bear arms.  By contrast, it’s entirely clear that the Framers of the Fourteenth Amendment thought that the P or I Clause protected an individual right to bear arms.  In particular, they understood that African Americans and “carpetbaggers” needed weaponry to protect themselves from assaults by armed Southern terrorist groups.

Third, I would try to craft an argument that would appeal to the Court’s four conservatives, by far my most likely votes.  I would conclude that originalism isn’t  nearly enough–as witnessed by Antonin “Mr. Originalism” Scalia’s appalling concurrence in the Raich v. Gonzalez.  Indeed, it’s unlikely that judicial, as opposed to political, ideology, ever persuades more than a Justice or two on a previously settled issue.

So what are the conservatives’ concerns that need to be addressed? (1) Further undermine Roe v. Wade, and certainly don’t create a free-floating liberty interest under P or I that can be abused by liberals; (2) Don’t bring back the dreaded Lochner.

The argument would go like this: (a) the Court should take this opportunity to start to move its individual rights jurisprudence from the Due Process Clause to the P or I Clause; (b) The problem with the D.P. Clause is that it traditionally prohibits “arbitrary” infringements on liberty, but arbitrariness is in the eye of the beholder, as is what is meant by “liberty,” see in both contexts Roe v. Wade; (c) worse yet, cases like Roe fail to give any real weight to the police power, the traditional brake on the D.P. Clause; (d) by contrast, through historical investigation, we can determine with some precision what rights were considered privileges or immunities of citizens.  Abortion, (right to die, etc.) was not one of them!; (e) Justice Field and Justice Bradley were correct in their SlaughterHouse dissents that one p or i of citizenship is the right to pursue an occupation  free from government-sponsored monopoly, a much narrower right than the later Lochner due process right to be free from arbitrary restrictions on liberty of contract, and a right that goes way back in Anglo-American history; (f) the ultimate holding of SlaughterHouse was still correct, because Louisiana had a legitimate police power interest in ensuring that its waterways didn’t carry disease, and the butchers who sued weren’t driven out of the profession, they just had to work in the safe location dictated by the government and pay a license fee to the slaughterhouse owner.

So, by deciding McDonald on P or I grounds, the conservatives can (1) help ensure the survival of the individual right to bear arms, and ground it in a much less controversial historical context, while leaving more room for federal than for state regulation of firearms; (2) start the process of transferring liberty jurisprudence from the D.P. Clause to the P or I Clause, which should help undermine Roe v. Wade and other rights with no historical basis as of 1868; and (3) allow some room for the Court to engage in serious review of a very narrow category of abusive economic regulations, along the lines of the cases brought by the Institute for Justice (requiring hairbraiders to take a two-year cosmetology course, creating a government-imposed cartel in funeral caskets, etc.)

In short, I would appeal not just to originalism, but to the conservatives’ long-term political self-interest, and affinity for the conservative political coalition that put them in power.

And I should add that I do not in any way mean to disparage or criticize any of those who are writing or have written briefs in this case.

UPDATE: Josh Blackman makes a good point in the comments: if the conservatives don’t define (and limit) the scope of the P or I Clause while they have a majority, the liberals may do so in the future, with very unconservative consequences.

I’ve read most of Mel Urofsky’s new biography of Louis Brandeis, and it’s an extremely good, and very informative, book.  But I’m afraid that Mel vastly exaggerates Brandeis’s influence on the Supreme Court’s adoption of the “incorporation doctrine”, to wit:

(1) p. 618: “Scholars now believe that the Fourteenth Amendment ... was intended to extend the protection of the Bill of Rights to the states.  Brandeis took this position in his dissent in Gilbert v. Minnesota.”  False.  You can read the dissent here. The last paragraph contains everything Brandeis wrote about the Fourteenth Amendment in that opinion, and he certainly did not take the position Mel attributes to him, or anything like it.

(2) p.619 “Within a few years the first fruits of Brandeis’s dissent appeared in, of all places, an opinion of Justice McReynolds [Meyer v. Nebraska]“.  False.  There is no reason to believe that Justice McReynolds’ opinion was influenced in any way by Brandeis’s Gilbert dissent.   Rather, McReynolds, who hated Brandeis both as a Jew and as a “radical”, cited a long string of liberty-of-contract decisions, including Lochner v. New York.

(3) p. 619 McReynolds in Meyer “found a violation of free speech,” and “applied the clear-and-present danger test” without using those words.  False.  Meyer was not decided as a free speech case, and neither the concept of freedom of speech nor the text of the First Amendment appears in the opinion.

(4) p. 641 “Brandeis’s assertion that the Due Process Clause implicated rights other than property is the starting point for the idea of incorporation by which the states become bound by the same standards for individual liberties as the national government.”  False.  The first Justice Harlan had argued over a period of decades, always in dissent (but getting as many as two additional votes, includng, if I recall correctly, Justice Stephen Field’s), that the rights enumerated in the Bill of Rights also applied to the states.

Earlier, on p. 619, Mel correctly notes that Brandeis only identified the rights to speech, education, choice of profession and travel [only the first of which is actually specifically mentioned in the Bill of Rights] as fundamental rights deserving protection under the Due Process Clause.

And it’s not like the idea of applying some of the rights in the Bill of Rights to the state was otherwise unheard of before Brandeis. In 1908, the Supreme Court stated that “some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.”   A year earlier, the Court had reserved for the future the question of whether “there is to be found in the Fourteenth Amendment a prohibition [of restriction of freedom of speech] similar to that in the First.”

Moreover, Brandeis would have preferred that the Due Process Clause not apply to any substantive rights at all, but insisted that all fundamental rights be protected if liberty of contract was to be protected.

Also, in 1897, well before Brandeis joined the Court a unanimous Supreme Court noted that the Fourteenth Amendment’s Due Process Clause protected not just liberty of contract, but “freedom from all substantial arbitrary impositions and purposeless restraints.”

Finally, if we are going to anachronistically consider pre-New Deal Due Process opinions that protect rights that happen to be mentioned in the Bill of Rights to be “incorporation” cases, even when no provision of the Bill of Rights was relied upon, it turns out that the Supreme Court “incorporated” the Takings Clause of the Fifth Amendment in 1897, twenty-three years before Brandeis’ dissent in Gilbert.

(5) p.632: Brandeis “especially wanted to advance the idea that the Fourteenth Amendment incorporated the Bill of Rights and applied it to the states.”  False.  Again, the pre-World War II Justice who consistently plugged something resembling the modern incorporation doctrine was Harlan, and it was he, not Brandeis, whom Justice Hugo Black later cited in advocating incorporation (though unlike Black, Harlan believed that the Fourteenth Amendment also protected unenumerated rights).

(6) p. 632 “Brandeis had first planted the seed [of the incorporation doctrine]” and McReynolds had advanced the cause in his two school opinions [Meyer and Pierce v. Society of Sisters].   False.  Neither case had anything to do with incorporation of the Bill of Rights.  Both cases were quite clearly what we now refer to as pure “substantive due process” opinions, applying unenumerated rights against the states via the Due Process Clause without any reference, even implicit, to the Bill of Rights.

I think I had noticed a few other examples, but I can’t find them right now, and I think I’ve made my point.

Don’t let this discourage you from buying this book, which is a wonderful resource on the life and accomplishments of Justice Brandeis. But on this particular issue of Brandeis’s influence on incorporation, it happens to be wrong.