All Commentary
Wednesday, June 1, 1977

How Did We Lose Our Freedom?

Mr. Leef is a student in the Duke University School of Law, Durham, North Carolina .

Many Americans have become aware of the great extent to which Federal and State regulation of their lives has cut into their liberty. So pervasive have the regulations become, and so domineering and powerful the regulators, that the thoughtful citizen may well be driven to wonder how this unhappy situation ever came about.

After all, we still live under a Con­stitution designed to protect life, liberty, and property. Why has not that document served to spare us from this plague of authoritarian­ism which seems to spread inex­orably across the land? It may come as a surprise to those who have never studied law, but there was a time when it did, when the judiciary understood the Constitution as providing a large measure of protection against legislative enactments which whittled away at our freedom.

Unfortunately, the courts aban­doned their defense of “economic freedom” and “property rights” at the same time as the nation swooned before the seductive promises of collectivism. There fol­lowed a long period during which the courts would accept virtually any measure the legislators might enact, so long as it could be argued—however speciously—to ad­vance the “public welfare.”

The purpose of this article is to trace briefly the evolution of judicial response to the constitu­tional dictate that neither Congress nor any state may “deprive any per­son of life, liberty, or property, without due process of law.”

The Early Cases: “Substantive Due Process”

In the early years of this century, the Supreme Court, and many state courts, often found legislative enactments which infringed upon a citizen’s freedom to be unconstitu­tional, as violative of the Fifth or Fourteenth Amendment. Probably the most famous—to many lawyers, infamous—case illustrating the judiciary’s early resistance to “progressive” legislation which cut deeply into the fabric of liberty is Lochner v. New York ‘.

In that case, Lochner, the owner of a bakery, had been convicted of a misdemeanor under a New York statute which prohibited employers and employees in the baking business from contracting for more than ten hours of work per day, or sixty hours per week. The New York Court of Appeals having upheld his conviction, the defendant appealed to the United States Supreme Court. In a 5-4 decision, the Court reversed the conviction. Mr. Justice Peckham, writing the majority opinion, first discussed the relationship between the in­dividual’s right to enter into con­tracts and the state’s power, under certain circumstances, to prevent him from doing so.

The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment. . . . Under that provision, no State can deprive any person of life, liberty, or property without due process of law. The right to purchase or sell labor is part of the liber­ty protected by this amendment unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State . . . somewhat vaguely termed police powers, the exact descrip­tion and limitation of which have not been attempted by the courts. Those powers relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers, and with such conditions the Fourteenth Amendment was not de­signed to interfere.

So the Court’s problem was to de­cide whether New York ‘s law for­bidding bakers to work more than sixty hours per week was a reason­able exercise of the state’s power over health, safety, or general welfare.

Unjustified Interference

Five justices thought that this in­terference with freedom of contract was not justified under the police power. They saw no need to treat bakers as “wards of the state,” as they presumably were quite capable of making contracts in their own best interests. Moreover, any rela­tionship to the public health or safety which might be thought to be furthered by this regulation was too remote and speculative to support it. The Court wrote, “There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with li­berty.”

The state also attempted to de­fend its statute on the ground that it promoted a strong and robust population. The Court treated this argument with the scorn it deserved—virtually any paternalistic law might be adopted under such a rubric, and if so, the Constitution’s protection would be “visionary.” In short, the Court found this law nothing more than a “mere meddle­some interference with the rights of the individual,” not bearing any substantial relation to public health, safety, morals, or general welfare and therefore an unconsti­tutional deprivation of liberty.

As a parting shot, the Court observed that if this statute were valid, there would be no stopping point for legislation impinging upon the contractual relations of employers and employees. Mr. Justice Peckham’s prophecy has, of course, proved to be distressingly accurate.

A Hierarchy of Rights

The Lochner rationale is known to lawyers as “substantive due pro­cess.” That is to say, the due pro­cess of law of which the Fifth and Fourteenth Amendments speak means more than that proper pro­cedures must be followed before a citizen may be deprived of his life, liberty, or property. It means that there are some restrictions upon liberty which are so unjustifiable, either because of the extent of the restriction or the insignificance of the end sought to be furthered thereby, that they will be struck down, even if all legal procedures in enacting and enforcing the law were complied with. It implicitly recog­nizes that there is a hierarchy of rights protected by the Constitu­tion and that the individual’s liber­ty, to make contracts, for instance, will be preferred unless the state can show a compelling reason why it should not be.

To overcome this presumption, the state must do more than merely put forth its conclusion that the restriction is necessary to protect health, safety, or public welfare, and any arguments it advances will have to be sound ones. Usually, of course, this burden could not be met, and the enactment would be struck down.

Furthermore, the Court was not hesitant to look behind verbal smokescreens to see the real pur­pose of a law. The opinion in Lochner expressly noted that not infrequently a legislature will pass a law, ostensibly in the interest of the public welfare, which in fact is calculated to benefit only a small, favored group. With the courts will­ing to make such close scrutiny of the legislative output, the citizen was spared many an encroachment upon his freedom.

Maintaining its solicitude for per­sonal liberty, in the years after Lochner, the Court would find numerous regulatory devices viola­tive of the due process clause. In Adair v. U.S.,2 the Court struck down a statute which made it a criminal offense for a carrier engaged in interstate commerce to discharge an employee because of membership in a labor organization. Similarly, a state attempt to outlaw the “yellow-dog” contract was in­validated in Coppage v. Kansas.3 A federal minimum wage law for adult women was held unconstitutional in Adkins v. Children’s Hospital.4 A Washington statute which forbade anyone to accept payment for the service of finding employment for another failed to pass the Four­teenth Amendment’s test in Adams v. Tanner,5 and the same fate befell a Tennessee statute fixing the retail price of gasoline in Williams v. Standard Oil.6 This is by no means an exhaustive catalogue, but serves to illustrate the Court’s adamant in­sistence that fundamental though not expressly enumerated rights, such as that of contract, would be protected against all but demon­strably necessary interference.

The Court Abdicates

This solicitude for personal liber­ty, however, did not survive the Depression. Even before the famous switch of 1937,7 the Court had caved in under the “Do Something!” pressures of the early thir­ties and upheld legislation it cer­tainly would not have twenty years before. A case most representative of the Court’s new understanding of due process of law is Nebbia v. New Yorks . A New York statute of 1933 established a Milk Control Board with power to fix minimum and maximum retail prices for milk. A price of nine cents per quart was set. Nebbia, the owner of a grocery store in Rochester , was convicted of violating the Board’s order upon proof that he had sold two quarts of milk and a five cent loaf of bread for eighteen cents.

The question before the Court was the constitutionality of this price-fixing scheme. The state ad­vanced a number of arguments to justify its interference with the liberty of buyers and sellers of milk to arrive at a mutually satisfactory price. The Court was told that the prices producers had been receiving were too low and this threatened a relaxation of their vigilance against contamination; that “curtailment or destruction of the dairy in­dustry” would cause a severe economic loss to the state; that there were “unfair and destructive trade practices” leading to low prices; and that the unequal distribution of surplus milk led to “destructive competition.”

The Court swallowed all of this hook, line, and sinker. A majority of five justices made it clear that the Court would not inquire into the wisdom of a legislative enactment to test it on due process grounds.

So far as the requirement of due pro­cess is concerned, and in the absence of other constitutional restrictions, a state is free to adopt whatever economic policy may reasonably be deemed to pro­mote the public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authori­ty either to declare such policy, or when it is declared by the legislature, to over­ride it. . . . With the wisdom of the policy adopted, with the adequacy or prac­ticability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal.

The Court therefore refused to con­sider just how control of the retail price of milk would do anything to improve the prices received by pro­ducers, nor was there any mention of the self-evident fact that the primary effect, if not purpose, of the law was the elimination of competi­tion from small grocers for large milk distributors—surely a measure not in the interest of the public welfare.

With this new, self-effacing posi­tion, the Court abdicated its role as a protector of liberty and property as comprehended by the Fifth and Fourteenth Amendments. Whereas before there had been an unspoken presumption in favor of the in­dividual’s freedom, to be overcome only upon a showing that some legitimate and significant concern for the public health, safety, or general welfare required the restric­tion, the Court’s new approach would be to defer to virtually any rationale the state could put forth. And, as we shall see, the Court would even go so far as to invent justifications for the most patently indefensible laws, so great was its desire to allow legislatures a free hand in experimenting to solve “social problems.”

A Series of Reverses: The Domino Effect

After Nebbia, the rest of the dominoes fell quickly. Minimum wage laws were upheld in West Coast Hotel v. Parrish.9 In that case, Washington’s statute recited that, “The welfare of the State of Washington demands that women and minors be protected from condi­tions of labor which have a per­nicious effect on their health and morals,” and declared that “inade­quate wages” had such an effect. That settled the matter for Chief Justice Hughes and four other members of the Court.

The same attitude led the Court to sweep away those cases which had upheld an employer’s right to refuse to employ union members. In Phelps Dodge v. N.L.R.B., 10 Mr. Justice Frankfurter, writing the Court’s opinion, looked to the alleged necessity for workers to be able to organize if the national goal of industrial peace was to be at­tained, and concluded that if an employer were free to decide whether or not he wanted to employ union members, the whole principle of self-organization would be under­mined. Congress was therefore within its power to make it an un­fair labor practice for an employer to refuse to hire an applicant because of his membership in a labor union. And what of cases such as Adair and Coppage? They had been “sapped of their authority.”

The Court Capitulates

A truly outrageous case illustrat­ing the Court’s extreme aversion to conflict with the legislatures where merely “economic freedoms” were involved is Williamson v. Lee Op­tical.11 An Oklahoma statute for­bade an optician to fit lenses into a new glasses frame or to make a duplicate lens without a prescrip­tion from a licensed optometrist or ophthalmologist. A more pater­nalistic and illiberal statute than this is hard to imagine.

Lee Optical sought a declaratory judgment in Federal district court to pronounce the law unconstitu­tional and enjoin its enforcement. The district court agreed with the plaintiff’s contention that the law was not reasonably or rationally related to the health or welfare of the people, and granted the relief sought. The Attorney General of Oklahoma appealed to the Supreme Court, which reversed the district court’s judgment. In an opinion by Mr. Justice Douglas, the Court vouchsafes to us a variety of reasons which might have caused the legislature to believe that this law was reasonably calculated to protect the public health and welfare.

The legislature might have concluded that the frequency of occasions when a prescription is necessary was sufficient to justify this regulation of the fitting of eyeglasses. . . . Or the legislature may have concluded that eye exams were so critical, not only for the correction of vi­sion but also for the detection of latent ailments or diseases, that every change in frames and every duplication of a lens should be accompanied by a prescrip­tion from a medical expert.

Thus we see that the freedom of a person to engage in a useful service falls before any minute “public welfare” concern—encouraging eye examinations—which the Court can attribute as possibly having motivated the legislature to act. There was no dissent from this em­barrassing nonsense.

Finally, some mention must be made of Ferguson v. Skrupa.12 A Kansas statute forbade any person to engage in the business of “debt adjusting” except as incident to the practice of law. Skrupa, who had been doing business as “Credit Ad­visors” sought an injunction against enforcement of the statute in Federal district court. Kansas argued that the business of debt ad­justing lent itself to “grave abuses against distressed debtors, particu­larly in the lower income brackets,” but the court found this law to be an unreasonable regulation of a lawful business in violation of the Fourteenth Amendment. Kansas appealed, and, not surprisingly, the Supreme Court reversed, citing the Lee Optical case.

What sticks in the throat about the opinion is Mr. Justice Black’s statement that, “Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no concern of ours.” Does this mean that a state, or Congress, might declare an end to private ownership of property, justifying its action upon an alleged need to promote “social harmony” or some other phrase calculated to waft by insou­ciant judges trained to believe that whatever a legislature says pro­motes the general welfare is un­challengeable? If so, then the docu­ment written by Madison, et al., and the document our present jurists are reading, are entirely different.

Will the Court Reconsider?

We have seen that since the mid-thirties, the Court has demon­strated a marked lack of concern over what some refer to as “proper­ty rights,” and that this attitude led to an extreme deference toward any legislation which regulated economic activity. There may, however, be a faint glow on the horizon. Recently the Court has used language which leads one to believe that it may be interested in reentering the long-abandoned bat­tlefield over such “non-preferred” rights as contract and property. In 1972 Mr. Justice Stewart wrote,

The dichotomy between personal liberties and property rights is a false one. Property does not have rights. Peo­ple have rights. The right to property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a “personal” right, whether the “property” in question be a welfare check, a home, or a savings ac­count. In fact, a fundamental interde­pendence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other.¹³

One can only hope that the Court will seize upon this newly rediscov­ered truth to safeguard the citizen’s right to be free of arbitrary and unreasonable deprivations of liber­ty and property with as much zeal­ousness as it has protected the rights guaranteed by the First Amendment.

In Defense of Property

The days of substantive due pro­cess will not soon be resurrected, but the judiciary can and should take a more active role where con­tract and property rights are in­volved. At the least, the Court should reconsider its self-effacing position that it has no competence to judge whether a law is a reasonable method of achieving a legitimate purpose. The state should be required to do more than merely allege its conclusion that a restriction on freedom is necessary to prevent a significant evil. It should have to demonstrate that the restriction actually does make a contribution to the end sought.14 A good many useless and even coun­terproductive statutes would fail under such scrutiny.

Or the Court could adopt a least restrictive means approach. In such a case as Ferguson v. Skrupa, for in­stance, the Court would in effect say to the legislature, “If you wish to prevent abuses in debt adjusting, you may do so, but you will have to find some way which is less restric­tive of personal freedom than an outright prohibition on entering the business.” What this would accom­plish would be to compel legislative bodies to take cognizance of the fact that liberty and property rights under the Fifth and Four­teenth Amendments are not archaic notions which will take a back seat to a scheme of regulation for every “problem” the legislators may discern, but that they are indispen­sable components of freedom which must be given appropriate weight in the balance of competing in­terests.

Final responsibility for our decline in freedom lies with the courts. Retreat from the old vigilant protection for the rights of liberty and property was so com­plete that for many years we have lived with a presumption that anything the state did in the way of economic regulation was reasonable and of sufficient importance to justify the diminution in the citizen’s freedom. Our freedom has thus been left to the mercies of elected representatives who more often than not are concerned only with satisfying the demands of assorted interest groups, to the detriment of the public at large. It is time for the courts to resume their intended role as defenders of the citizen against rapacious and authoritarian legislation, restoring the words liberty and property to their proper respect under the Con­stitution.



1198 U.S. 45 (1905).

2208 U.S. 161 (1908).

3236 U.S. 1 (1915).

4261 U.S. 525 (1923).

5244 U.S. 590 (1917).

6278 U.S. 235 (1929).

7The “switch” actually relates to the Court’s position on the meaning of “interstate commerce” which Congress may regulate under Article I, section 8. Compare Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935) with N.L.R.B. v. Jones & Laughlin Steel, 301 U.S. 1 (1937).

8291 U.S. 502 (1934). 9300 U.S. 379 (1937). 10313 U.S. 177 (1941). 11348 U.S. 483 (1955). 12372 U.S. 726 (1963).

13Lynch u. Household Finance, 405 U.S. at 552 (1972).

14Such a means-oriented test has recently been advocated by at least one commentator. See Gunther, “Foreword: In Search of Evolv­ing Doctrine on a Changing Court: A Model for a Newer Equal Protection,” 86 Harvard Law Review 1. 

  • George Leef is the former book review editor of The Freeman. He is director of research at the John W. Pope Center for Higher Education Policy.