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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, June 13, 2016

Griswold Again: Property Rights

It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children "come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements."
-- Stanley v. Illinois [1972]
During around a half-century after the ratification of the 14A, "shifting economic arrangements" was often more respected as a matter of constitutional law.  The "right to contract" in particular was the basis of many state and federal cases, including what for many later was an anathema, Lochner v. NY  (maximum hour law for bakers struck down).  The Contract Clause, including public contracts, was also of great importance in the early years of the Supreme Court.  [One book, e.g., noted how early attempts to regulate lotteries were complicated since property rights and contracts were involved while by the end of the 19th Century, it was much easier to do so.]  Property rights were of great importance to the Founding Fathers as well including in the constitutional barrier to states using paper money.

In time, however, it was deemed more and more appropriate to let economic affairs to generally be left to public policy.  Basic aspects of one's personality such as sex, race, religion and so forth remain things carefully handled; fine lines between professions, much less so.  Note that Lochner v. NY itself was 5-4. The dissent accepted a legitimate public health purpose for the law.  And, in time,  maximum hours and minimum wages were also seen as necessary for true equal protection.  In Poe v. Ullman, Justice Douglas voiced the sentiment of many, if rather simplistically:
For years, the Court struck down social legislation when a particular law did not fit the notions of a majority of Justices as to legislation appropriate for a free enterprise system.
Douglas continued:
Social legislation dealing with business and economic matters touches no particularized prohibition of the Constitution, unless it be the provision of the Fifth Amendment that private property should not be taken for public use without just compensation. If it is free of the latter guarantee, it has a wide scope for application. 
There are provisions in the Constitution which touch upon these issues such as the bankruptcy and currency provisions,  the Commerce Clause, the Contract Clause, the Due Process Clause ("property") and any provision that might arise.  For instance, equal protection issues can arise if certain businesses are treated differently without reasonable grounds.  What if the business was a newspaper or movie theater with zoning issues?  Finally, privacy can be involved too, including the Fourth Amendment.   There is not a 4A free zone here.  Justice Stevens in a case involving a grandparent choosing to live with her grandchildren separately relied on property rights.

There was a judgment here that business and economic arrangements was more "public" and open to regulation. This developed over time and even long before the 20th Century various types of regulations were allowed. But, property rights was quite important to the Founding Fathers, especially in a society greatly agriculturally and land based.  Personal predilections alone was not behind the resulting case law. Slavery also was deemed a special type of property, while one core concern of the anti-slavery movement was free labor.  The basic right to freely contract was and continues to be a basic right of freedom.  The legitimacy of regulation, including to deal with inequalities should not lead us to forget this.  But, neither the public nature of things either.

Property rights are important and "private" property is specifically protected by the Takings Clause.  The 4A specifically protects "homes" and "effects," which are forms of property.  Cars are repeat players in search and seizure cases.  But, property still on some level is not as personal as "life" and "liberty," resting not merely on state property law but "intrinsic human rights." Justice Douglas between Poe and Griswold spoke separately to differentiate the home from businesses with "service which has become of public interest."  The principle continues today with religious owners having some obligations to employees and customers. They are not merely private individuals any more.

Thus, property rights do have some constitutional importance, and this can blend into social and business affairs.  Some exaggerated approach here, after all, leads to Justice Black (and temporarily Stewart)  deciding contraceptives are among the "social" policies the state has broad control over.  Once upon a time, even equal protection gave limited control to "social" affairs, the general idea being that civil rights here did not touch interracial marriage.  Or, overall, it was good public policy unless it was done just plain irrationally.  OTOH, there was a changing understanding on correct policy here including what is best to protect equality itself.

But, there remains a belief that certain "personal rights" are particularly private such as family life, the general idea always there.  There is no absolute rule here -- families are regulated too -- but family life and one's own body was never on equal footing with business regulations.  The particulars change but even in the "Lochner Era" the libertarian approach only went so far.  And, as public matters were more regulated, the private was (and is) if anything more important.  Tricky as usual.

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