Skinner Again

I provided some links, including to other writings by the author of the book just cited.  One, to highlight it, included a bill out of California to add more protections against non-consensual sterilization of prisoners.  A 1970s case involving protecting safeguards for all women in that area was covered in Women and the Law: Stories. Also, the fiction book Necessary Lies covers the era well, using poor whites in North Carolina.  Prof. Nourse warns the limits of science continues to trouble us but this area in particular still is important.

One interesting aspect of her argument is that the often criticized "Lochner Era" was on the whole rather supportive of state power ("police power") upholding most legislation. There was a special concern -- especially at times (see, e.g, under CJ Taft) -- for certain types of labor legislation (and price regulation -- railroad rates, e.g., was a major concern) because it threatened the "free labor" philosophy of the era that was an honest reflection of one thread of 1850s Republican Party thought ("free labor, free land, free men").  But, the Lochner trope is overused.

Justice Souter once noted that Lochner (like Nourse, I like to focus on not Holmes' famous dissent, but Harlan's, who accepted substantive due process while still arguing the hour law was reasonable) was correct enough on the basic point that a law can be "arbitrary," but wrong on the reasonableness of the specific economic legislation often in question.  As Nourse notes in her book, Justice Douglas et. al. thought "substantive due process" applied to old fashioned property right talk.  Others ares willing to use that term, but think the problem is the merits. As Nourse notes in her "Two Lochners" article:

rights are vessels of history in two senses of the word. They are vessels in the sense that they are lessons of the past that help guide our future. They are also vessels in the sense that they are containers of memory, and in particular, memories of grave political danger, adopted by majorities to prevent themselves from repeating the lessons they have learned.

Prof. Nourse argues that the Skinner case is important in part as the one bringing the concept of "strict scrutiny" to laws of a particular type. The ruling was decided on equal protection grounds -- the infamous sterilization case of Buck v. Bell ridiculed that but by 1942 some history lessons had developed. This by the way is a problem with ridicule of "living" constitutionalism.  It is simply absurd really to deny that over time the basic principles of the Constitution will develop in certain ways that past generations will not readily expect. The document sets the basics; the particularly is ongoing.  Self-government in the long run is furthered.

Skinner is usually cited these days as a privacy case -- procreation and marriage is cited as "one of the basic civil rights of man." The dissent below also flagged that sentiment. This counseled the "strict scrutiny" particularly since the sterilization was assumed to be permanent. The combination of due process and equal protection continues to this day as shown in the same sex marriage litigation. Two justices also cited procedural due process concerns (Jackson supported both arguments)  directly -- the assumption a criminal convicted three times of certain crimes should not be enough; there should be a hearing putting the state to its proof. But, the seriousness of the burden still matters -- cf. a case involving a $20 hobby kit being broken in prison, to cite an actual USSC matter.

Concern for substantive liberties has a long history; substantive due process is not just an invention of this era.  Justice Harlan in an unanimous decision on the point cited the fundamental nature of property in a 1890s case that incorporated the Takings Clause, discussing "substantive" due process:

But a state may not, by any of its agencies, disregard the prohibitions of the fourteenth amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law, regard must be had to substance, not to form. This court, referring to the fourteenth amendment, has said: 'Can a state make anything due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the states is of no avail, or has no application, where the invasion of private rights is effected under the forms of state legislation.'

The state supreme court below in Skinner:

"Due process" has a dual significance, as it pertains to procedure and substantive law. As to procedure it means "notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a competent and impartial tribunal having jurisdiction of the cause." 12 Am. Jur. 267, § 573; 16 C. J. S. 1156. In substantive law, due process may be characterized as a standard of reasonableness, and as such it is a limitation upon the exercise of the police power. 6 R. C. L.  [**127]  433-446; 11 Am. Jur. 998, 1073-1081; 16 C. J. S. 1156.

Legal citations included to show the principle was standard at the time, not "an oxymoron" as some might put it.  The majority, if only by one vote, however put a high test to holding a law as "unreasonable" -- "clearly and beyond a reasonable doubt in error," which sounds almost higher than what is required to put someone to death in a criminal trial.  But, there was and is a respect for the democratic process here, certain safeguards still present. The court here was less concerned with a sterilization law that picked and chose among its victims.  The dissent, including someone who had voted to uphold an earlier sterilization law with arguably somewhat better individualized review, did not buy this:

True, the laws providing for the sterilization of insane persons and habitual criminals usually provide that there be a finding that the accused is a probable potential parent of offspring that will be insane or criminal, but the fact that other statutes make such provision does not mean that they must do so. For some reason, not known to us and with which we should not concern ourselves, our Legislature thought such provision not necessary or proper. It may be because it thought such a finding could not be based upon satisfactory proof. The Legislature should be allowed some latitude on this question.

Happily, the USSC did "concern" themselves on the point, particularly because it ran against more than one particular constitutional safeguard against such "class legislation." From the bans against nobility and  "corruption of blood" to the direct concern about equal protection in the 14A (seen in some fashion to also be applied against the federal government), there is a particular concern against invidious class legislation.  Eugenics is an attempt for a sort of nobility, which is a basic violation of our founding principles.

As seen by the citation to procreation, there is also a particular concern for certain liberties. Civil and criminal law treat classes of wrongdoers differently and the result can be severe loss of liberty, often wrong-minded in nature.  But, eugenics touched a particularly troublesome area. As seen in cases like Meyer and Pierce (education of children), particular liberties are of special concern, including those not expressly enumerated. These too, if by lines that might be complicated in various ways, also are a concern for the courts.  Ultimately, we are best on guard to not merely rely on them, especially since there is an "Overton Window" affected by public opinion and current practice, however imperfect as reflected by an elite here well tenured judiciary.  All the same, substantive liberty counts.

A final word on the book is that it is particularly noted that the case arose out of prison litigation with support of the warden.  This adds to the colorful nature of the story -- these legal case studies (as Justice Brennan once told Nat Hentoff -- tell them stories!) are often particularly interesting for the background, which should not be missed for the specific legal details.  Both are important and it is left for those to tell them well.