FS08Study aid #6 - Study aid for reading assignment#6 Due...

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Study aid for reading assignment #6 Due Process and Social Darwinism In the late 1800s, working people organized against what they thought to be the abuses of big business and began electing state governments that were sympathetic to the laboring class. These legislatures passed laws to limit monopolies and to restrict the abilities of employers to exploit workers who had no choice but to work on whatever terms employers required. When corporate interests lost control of the legislatures, they still had great influence with the courts where judges come from the upper classes and were often corporate lawyers before being appointed as judges. These men brought their corporate interests with them to the courts. Because capitalists no longer controlled legislatures, they turned to the courts where there was the power to overrule legislatures. In other words, they relied on the courts to prevent the democratic majority from taking control of economic matters such as prices, wages and working hours. When the government regulates the society, imposing restrictions on behaviors of any kind, it does so under the concept of “police powers.” This is an ancient, common law justification of governmental power. It holds that governments are formed in order to keep social order and ensure the welfare of the community, and that it is just for governments to use their power to promote the communal good. Those who argued for the government to limit the power of America’s wealthy class did so on the grounds that it was a legitimate exercise of police power to impose some fairness on the distribution of wealth among all of those who were participating in the production of that wealth. Of course, the police powers doctrine does not give government unlimited power, so capitalists looked for legal arguments with which to limit the use of “police powers” in controlling the economy. In order to do this, the courts needed a way to rule that the laws passed by legislatures violated the Constitution. For this they developed a new interpretation of the "due process" clause of the Fourteenth Amendment. "Due process" is a vague concept that descends from the common law tradition and, in American law, means "fairness." When the Constitution says that people can not be denied the "due process of law," it means that there are deeply held, cultural traditions of fairness that can not be violated even if they are not specifically written in the law. When it is said that a law violates due process, it means that while the law in question may not violate any written law, it violates a cultural standard that is above all written laws. When judging whether a legislature has passed a law that violates the due process clause, judges have to decide what the culture's traditional, but unwritten, assumptions are. Irons points out that before the 1870s, the use of the due process clause was
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This note was uploaded on 10/17/2011 for the course WRA 115 taught by Professor Lackey during the Fall '08 term at Michigan State University.

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FS08Study aid #6 - Study aid for reading assignment#6 Due...

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