The First Amendment and Public Health, at Odds

2013 ◽  
Vol 39 (2-3) ◽  
pp. 298-307 ◽  
Author(s):  
Seth E. Mermin ◽  
Samantha K. Graff
Keyword(s):  
Public Health ◽  
Supreme Court ◽  
Child Labor ◽  
Due Process ◽  
Health And Safety ◽  
Working Hours ◽  
Fourteenth Amendment ◽  
Freedom Of Contract ◽  
The Supreme Court ◽  
Public Health And Safety

At the turn of the last century, allies of industry on the Supreme Court deployed a novel constitutional doctrine to thwart government regulations aimed at improving public health and safety. During the Lochner v. New York era, the Supreme Court discovered a right to “freedom of contract” in the Due Process Clause of the Fourteenth Amendment that advanced the “economic liberty” of businesses to conduct their affairs without government oversight. The newfound freedom of contract forbade, for example, public policies aimed at improving factory conditions by setting maximum working hours, forbidding child labor, or setting a minimum wage. The Court later somewhat abashedly changed course, finding that government in fact had great leeway to implement economic regulations protecting and promoting general welfare.Today, seventy-five years after the Supreme Court repudiated the doctrine of economic substantive due process, the Court has backtracked to the notion that the Constitution significantly impedes the government's ability to safeguard public health and safety by regulating commercial activities.

Need for a more Democratic Procedure of Amending the Constitution

1916 ◽  
Vol 10 (4) ◽  
pp. 683-688
Author(s):  
Seba Eldridge
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
State Legislatures ◽  
Fourteenth Amendment ◽  
Political Discussion ◽  
Legislative Authority ◽  
The Supreme Court ◽  
History Of ◽  
Electoral Control ◽  
Democratic Procedure

That final legislative authority in this country is lodged in the letter of a constitution that is amended with the greatest difficulty, and with a supreme court which is entirely independent of electoral control has become a commonplace of political discussion.To quote Professor Goodnow: “Acts of congress and of state legislatures are declared to be unconstitutional ‥‥ because they cannot be made to conform to a conception of the organization and powers of government which we have inherited from the eighteenth century;” and Dr. Blaine F. Moore: “If we may judge from the decisions based on the due process clause in the fourteenth amendment and applying to the States, the court has it in its power to make the similar clause in the fifth amendment cover practically all federal legislation dealing with new problems concerning which there are few or no precedents. If the court does make this entirely possible extension of its power, then the legislation dealing with the more recent and pressing questions is under the control of the popularly inaccessible justices of the supreme court.”Both these quotations are from studies published before the adoption of the sixteenth and seventeenth amendments, but they are only a little less true now than then, as an analysis of the history of those amendments will show.

A Class by Herself: Muller v. Oregon (1908)

2017 ◽  
Author(s):  
Nancy Woloch
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Turning Point ◽  
Due Process ◽  
Fourteenth Amendment ◽  
Labor Standards ◽  
Sexual Equality ◽  
The Supreme Court ◽  
The Law ◽  
Employment Of Women

This chapter assesses Muller v. Oregon (1908), its significance, and the law it upheld: Oregon's ten-hour law of 1903. Convicted of violating Oregon's law of 1903 that barred the employment of women in factories and laundries for more than ten hours a day, Curt Muller—the owner of a Portland laundry—challenged the constitutionality of the law, which he claimed violated his right of freedom to contract under the due process of the Fourteenth Amendment. On February 24, 1908, the Supreme Court unanimously upheld the Oregon law. This decision marked a momentous triumph for progressive reformers and a turning point in the movement for protective laws. At the same time, by declaring woman “in a class by herself,” the Supreme Court embedded in constitutional law an axiom of female difference. The Muller decision thus pushed public policy forward toward modern labor standards and simultaneously distanced it from sexual equality.

The U.S. Supreme Court Decisions

2020 ◽  
pp. 144-178
Author(s):  
Donald W. Rogers
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Civil Liberties ◽  
Fourteenth Amendment ◽  
District Court ◽  
Circuit Court ◽  
Court Of Appeals ◽  
The Supreme Court ◽  
Federal Jurisdiction ◽  
The U.S

This chapter traces Hague’s appeal through the Third Circuit Court of Appeals into the U.S. Supreme Court under Chief Justice Charles Evans Hughes, showing how the Hughes court’s inner dynamics explain affirmation of the district court injunction. Observing flux in court personnel and law, the chapter shows that both courts embraced the contemporaneous civil liberties revolution by defending worker speech and assembly rights, but it reveals the Supreme Court as divided over constitutional logic. Justice Owen Roberts’s plurality opinion upheld speech and assembly rights under the Fourteenth Amendment privileges and immunities clause, Justice Harlan Fiske Stone’s concurrence incorporated the First Amendment into the Fourteenth Amendment due-process clause, and dissenters rejected federal jurisdiction. The ruling reflected the contentious evolution of civil liberties jurisprudence, not antiboss or labor law politics.

The Supreme Court in the Era of Bifurcated Review V

2019 ◽  
pp. 691-784
Author(s):  
G. Edward White
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Due Process ◽  
Fourteenth Amendment ◽  
Political Campaigns ◽  
Religious Minorities ◽  
The Supreme Court ◽  
Constitutional Jurisprudence

Of all the areas of twentieth-century constitutional jurisprudence, that of free speech has had the most dramatic transformation. From a state of insignificance, the First Amendment has been applied against the states in the Due Process Clause of the Fourteenth Amendment and made the basis for invalidating restrictions on the expressive activities of political and religious minorities, corporations, contributors to political campaigns, and commercial advertisers.

Constitutional Law in 1909-1910: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1909

1910 ◽  
Vol 4 (4) ◽  
pp. 483-497
Author(s):  
Eugene Wambaugh
Keyword(s):  
United States ◽  
Supreme Court ◽  
Due Process ◽  
The United States ◽  
Prima Facie ◽  
Fourteenth Amendment ◽  
Successful Attempt ◽  
Commerce Clause ◽  
State Statutes ◽  
The Supreme Court

It is indeed a substantial grist that the Supreme Court of the United States at the last term of court has ground for students of political science. The first opinion was delivered on November 1, 1909, and the last on May 31, 1910, and the court decided no less than sixty-five constitutional cases. Notice that with caution it is merely said that the court decided no less than that number; for it is often somewhat a matter of opinion whether a case should be classed as constitutional, and it may well be that there are readers who will find that the court exceeded sixty-five. And how were those sixty-five divided? Many turned on more constitutional points than one, and thus an enumeration of the cases bearing on the several clauses of the Constitution will reveal a total exceeding sixty-five. The enumeration, subject to amendment in accordance with each student's views, gives the following results: The Fourteenth Amendment, twenty-four cases; the Commerce Clause, twenty-one; the Obligation of Contracts Clause, eight; whether cases arise “under the laws of the United States,” eight; Full Faith and Credit Clause, five; and sixteen other clauses, from one to four cases each, aggregating twenty-seven.Through these dull figures some important facts shine distinctly. The Fourteenth Amendment and the Commerce Clause clearly took a vast part of the court's energy, and each of these provisions has to do with the curtailment of functions which prima facie belong to the several states. In other words, the chief feature of this term, as of every recent term, has been a more or less successful attempt of litigants to overthrow state statutes as denials of due process and equal protection or as interferences with interstate commerce.

Text and Textualism

2021 ◽  
pp. 17-34
Author(s):  
George Thomas
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Fourteenth Amendment ◽  
Bill Of Rights ◽  
The Supreme Court

This chapter focuses on Justice Hugo Black, the most prominent modern advocate of constitutional textualism to sit on the Supreme Court, revealing the unwritten understandings that drive Black’s textualist jurisprudence. Justice Black was most famous for advocating that the Fourteenth Amendment applied to the Bill of Rights to the states. Black argued that the liberty protected by the due process clause included, and only included, rights enumerated in the Bill of Rights. Black was famous for his constitutional literalism, pointing to his pocket Constitution to ask where a right like “privacy” was found in the Constitution. Yet Black’s own interpretation relied on his desire to cabin and limit judicial will much more than on constitutional text. It was Black’s understanding of the role of the judiciary in a democracy—and not constitutional text—that drove his jurisprudence of incorporation.

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.

scholarly journals The Fine Line: Rural Justice, Public Health and Safety, and the Coronavirus Pandemic

2021 ◽  
pp. 000276422110031
Author(s):  
Jennifer Sherman ◽  
Jennifer Schwartz
Keyword(s):  
Public Health ◽  
Law Enforcement ◽  
Rural Communities ◽  
Health And Safety ◽  
Criminal Activity ◽  
Personal Liberty ◽  
Local Law Enforcement ◽  
Local Law ◽  
Sheriff's Department ◽  
Public Health And Safety

In this article, we provide an early glimpse into how the issues of public health and safety played out in the rural United States during the coronavirus pandemic, focusing on Washington State. We utilize a combination of news articles and press releases, sheriff’s department Facebook posts, publicly available jail data, courtroom observations, in-depth interviews with those who have been held in rural jails, and interviews with rural law enforcement staff to explore this theme. As elected officials, rural sheriffs are beholden to populations that include many who are suspicious of science, liberal agendas, and anything that might threaten what they see as individual freedom. At the same time, they expect local law enforcement to employ punitive measures to control perceived criminal activity in their communities. These communities are often tightly knit, cohesive, and isolated, with high levels of social support both for community members and local leaders, including sheriffs and law enforcement. This complex social context often puts rural sheriffs and law enforcement officers in difficult positions. Given the multiple cross-pressures that rural justice systems faced in the wake of the COVID-19 pandemic, we explore the circumstances in which they attempted to protect and advocate for the health and safety of both their incarcerated and their nonincarcerated populations. We find that certain characteristics of rural communities both help and hinder local law enforcement in efforts to combat the virus, but these characteristics typically favor informal norms of social control to govern community health. Thus, rural sheriff’s departments repeatedly chose strategies that limited their abilities to protect populations from the disease, in favor of appearing tough on crime and supportive of personal liberty.

Legal Aid for Children: Some Reflections

1979 ◽  
Vol 4 (4) ◽  
pp. 29-32
Author(s):  
Brian Lucas
Keyword(s):  
United States Of America ◽  
Due Process ◽  
Juvenile Court ◽  
The United States ◽  
Fourteenth Amendment ◽  
Court System ◽  
Bill Of Rights ◽  
Legal Aid ◽  
Legal Representation ◽  
The Supreme Court

In its Second Main Report, Law and Poverty in Australia, the Commission of Inquiry into Poverty expressed the view that “legal representation for children appearing before the children's court, whether in the criminal or protective jurisdiction, is necessary if justice is to be done.”This view coincides with the opinion of the Supreme Court of the United States of America in In re Gault. It has been said that this decision “unleashed a frontal assault on the juvenile court system.” It confirmed that juveniles were entitled to “due process” and the same protection which the Fourteenth Amendment and the Bill of Rights afforded to adults.

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