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

Published online by Cambridge University Press:  01 August 2014

Wallace Mendelson
Wallace Mendelson*
Affiliation:
University of Texasat Austin
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Abstract

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.

Type
Articles
Information
American Political Science Review , Volume 66 , Issue 4 , December 1972 , pp. 1226 - 1233
Copyright
Copyright © American Political Science Association 1972

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References

1 Connolly v. Union Sewer Pipe Co., 184 U.S. 540 (1902).

2 257 U.S. 312 (1921).

3 Kotch v. Bd. of River Port Pilots Comm'rs, 330 U.S. 552 (1947).

4 Goesaert v. Cleary, 335 U.S. 464 (1948).

5 Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

6 This expression of the traditional view actually comes from Chief Justice Warren's opinion of the Court in McGowan v. Maryland, 366 U.S. 420, 425–426 (1961). It is an outline of an extended statement in Morey v. Doud, 354 U.S. 457, 463–464 (1957).

7 Excluded here are cases in which state measures were stricken down because of their extraterritorial effects. These of course involve the old problem of “taxation [or regulation] without representation,” and thus come within the Roosevelt Court's special concern for the processes of popular self-government. See, for example, Southern Pacific v. Arizona, 325 U.S. 761 (1945).

8 Cited in fn. 6.

9 316 U.S. 535 (1942).

10 347 U.S. 483 (1954).

11 For example, Slaughter House Cases, 16 Wall. 36 (1873); Strauder v. West Virginia, 100 U.S. 303 (1880).

12 Politics, the Constitution, and the Supreme Court (Chicago: The University of Chicago Press, 1970), pp. 110–111Google Scholar.

13 UCLA Law Review 716 (1969).

14 351 U.S. 12 (1956).

15 Chicago, M. & St. P. R. Co. v. Minnesota, 134 U.S. 418 (1890) is generally considered the beginning of the flood of substantive due process cases. The Court's opinion rests in part on procedural considerations.

16 377 U.S. 533 (1964).

17 369 U.S. 186 (1962).

18 See, for example, Williams v. Rhodes, 393 U.S 23 (1968). For the Warren Court's own comparison of the traditional and the new tests, see McDonald v. Bd. of Election of Chicago, 394 U.S. 802, 807–809 (1969). The “careful scrutiny” rule is used also in case of “suspect classifications.” See note 44 and related text, below.

19 Avery v. Midland County, 390 U.S. 474 (1968); Hadley v. Junior College District, 397 U.S. 50 (1970); Kramer v. Union Free School District, 395 U.S. 621 (1969); Cipriano v. City of Houma, 395 U.S. 701 (1969).

20 For example, Carrington v. Rash, 380 U.S. 89 (1965); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Williams v. Rhodes, 393 U.S. 23 (1968).

21 391 U.S. 68 (1968).

22 In Connolly v. Union Sewer Pipe Co. (cited in fn. 1) the “old Court” found invidious discrimination in a state antitrust law which covered businessmen but not farmers. It struck down not the “bad” exception but the whole measure! This and the opposite tactic in Levy demonstrate a crucial phase of judicial activism.

23 394 U.S. 618, 638 (1969).

24 91 S.Ct. 780 (1971).

25 Prior to the new poverty-procedural-due-process approach in Boddie, the Burger Court unanimously invalidated on equal protection grounds two state laws which would incarcerate indigents (unable “forthwith to pay a fine in full”) when others could escape that fate by virtue of fiscal competence. The first of these— Williams v. Illinois, 399 U.S. 235 (1970)— rested simply on Griffin v. Illinois (cited in fn. 14). The opinion in the second, Tate v. Short, 91 S.Ct. 668 (1971) was singularly laconic, marking presumably the soon to be accomplished transition to Boddie.

26 91 S.Ct. 1017 (1971).

27 397 U.S. 471 (1970).

28 Adamson v. California, 332 U.S. 46, 68 (1947).

29 91 S.Ct. 1331 (1971).

30 Hunter v. Erickson, 393 U.S. 385 (1969).

31 397 U.S. 254 (1970).

32 91 S.Ct. 1858 (1971).

33 Pp. 1872–1874.

34 P. 1878.

35 P. 1883.

36 See Elliott, Ward, “Prometheus, Proteus, Pandora, and Procrustes Unbound: The Political Consequences of Reapportionment,” 37 The University of Chicago Law Review 474 (1970)CrossRefGoogle Scholar; Mendelson, Wallace, “Book Review,” 58 Georgetown Law Journal 435 (1969)Google Scholar.

37 Mendelson.

38 See their dissenting opinions in Baker v. Carr (cited in fn. 17).

39 91 S.Ct. 1904 (1971).

40 91 S.Ct. 1889 (1971).

41 Kirkpatrick v. Preisler, 394 U.S. 526 (1969). The Warren Court had said that justifiable deviations from mathematical equality would be permitted, but it never found any it deemed justifiable.

42 Cf. the two-thirds majority requirement for impeachment and treaty ratification in the federal Constitution. The lower court had relied mistakenly, as it turned out, on Gray v. Sanders, 372 U.S. 368 (1963) and Cipriano v. City of Houma, 395 U.S. 701 (1969).

43 This seems to be the new trend also among scholars. See, for example, Dixon, Robert G., Democratic Representation: Reapportionment in Law and Politics (New York: Oxford University Press, 1968), pp. 544et seq.Google Scholar; Dye, Thomas R., Politics, Economics and the Public (Chicago: Rand McNally, 1966) p. 280Google Scholar; Elliott, “Prometheus …” (cited in fn. 36).

44 Graham v. Richardson and Sailer v. Leger, 91 S. Ct. 1848, 1852 (1971). Cf. Rogers v. Bellei, 91 S.Ct. 1060 (1971).

45 396 U.S. 19 (1969).

46 91 S.Ct. 1267 (1971)

47 91 S.Ct. 1940 (1971). See also Griggs v. Duke Power Co., 91 S.Ct. 849 (1971). It is arguable that the Warren Court's position in Griffin v. Prince Edwards County, 377 U.S. 218 (1964) and Orleans Parish School District v. Bush, 365 U.S. 569 (1961), required a different result in Palmer.

48 See his opinion in Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

49 Griswold v. Connecticut.

50 He saw “incorporation” as an antiactivist device. Apart from the problem of racism, it was calculated to confine the Fourteenth Amendment to a Bill of Rights meaning.

51 The literature on this problem is extensive. Some of it is covered in Mendelson, Wallace, “Mr. Justice Black's Fourteenth Amendment,” 53 Minnesota Law Review 711 (1969)Google Scholar.

52 FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 601, note 4 (1942).

53 The poverty cases are discussed above. As to birth control, see his biting dissent in Griswold v. Connecticut (cited in fn. 48).

54 See cases cited in fns. 16, 18–20.

55 Oyler v. Boles, 368 U.S. 448 (1962); McDonald v. Bd. of Election Comm'rs, 394 U.S. 802 (1969).

56 McGowan v. Maryland, 366 U.S. 420 (1961).

57 The crux of Mr. Justice Black's problem was that his dedication to democracy dictated special court protection for the suffrage, though suffrage is not covered in the Bill of Rights. Writing the Court's first one-man-one-vote opinion he carefully avoided reliance upon equal protection. Wesberry v. Sanders, 376 U.S. 1 (1–964). Then he silently, and no doubt painfully, went along with the Court's substantive equal protection approch in Sims et al. In Harper he returned to type, but it was too late. Griswold a few months earlier had already emasculated his quarter century effort to tame the Fourteenth Amendment. The Court's effort in that case to tie birth control into the Bill of Rights, if designed to placate the Justice, can only be deemed an insult to his intelligence. As he forcefully pointed out, the Court had simply put new garments on the old due process wolf. For Mr. Justice Black the lesson of Sims must have been this: The role of demivirgin is not easily maintained.

58 Karst, , “Invidious Discrimination …,” p. 740Google Scholar.

59 Including, as Karst would have it (see quotation at note 58, above) governmental nonaction. Since equal protection is included in the Fifth Amendment (at least for some purposes, Boiling v. Sharpe, 347 U.S. 497 [1954]), the supervisory power would extend to the federal government as well as to the states.

60 Mr. Justice Harlan dissenting in Harper v. Virginia Bd. of Elections (cited in fn. 20) pp. 681–682.

61 Cited in fn. 1, above.

62 175 U.S. 528 (1899).

63 211 U.S. 45 (1908).

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