GPO-CONAN-2017-10-15.pdf

Away by due process of law and which can only be

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away by due process of law, and which can only be interfered with, or the enjoy- ment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all . . . . This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect; and a calling, when cho- sen, is a man’s property right . . . . A law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previ- ously adopted, does deprive them of liberty as well as property, without due process of law.” Slaughter-House Cases , 83 U.S. (16 Wall.) 36, 116, 122 (1873) (Justice Brad- ley dissenting). 75 143 U.S. 517, 551 (1892). 76 See Fletcher v. Peck, 10 U.S. (6 Cr.) 87, 128 (1810). 77 94 U.S. 113, 123, 182 (1877). 1855 AMENDMENT 14—RIGHTS GUARANTEED
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v. Kansas , 78 rather than presume the relevant facts, the Court sus- tained a statewide anti-liquor law based on the proposition that the deleterious social effects of the excessive use of alcoholic liquors were sufficiently notorious for the Court to be able to take notice of them. 79 This opened the door for future Court appraisals of the facts that had induced the legislature to enact the statute. 80 Mugler was significant because it implied that, unless the Court found by judicial notice the existence of justifying fact, it would in- validate a police power regulation as bearing no reasonable or ad- equate relation to the purposes to be subserved by the latter— namely, health, morals, or safety. Interestingly, the Court found the rule of presumed validity quite serviceable for appraising state leg- islation affecting neither liberty nor property, but for legislation con- stituting governmental interference in the field of economic rela- tions, especially labor-management relations, the Court found the principle of judicial notice more advantageous. In litigation embrac- ing the latter type of legislation, the Court would also tend to shift the burden of proof, which had been with litigants challenging leg- islation, to the state seeking enforcement. Thus, the state had the task of demonstrating that a statute interfering with a natural right of liberty or property was in fact “authorized” by the Constitution, and not merely that the latter did not expressly prohibit enact- ment of the same. As will be discussed in detail below, this ap- proach was used from the turn of the century through the mid- 1930s to strike down numerous laws that were seen as restricting economic liberties. As a result of the Depression, however, the laissez faire ap- proach to economic regulation lost favor to the dictates of the New Deal. Thus, in 1934, the Court in Nebbia v. New York 81 discarded this approach to economic legislation. The modern approach is ex- emplified by the 1955 decision, Williamson v. Lee Optical Co. , 82 which upheld a statutory scheme regulating the sale of eyeglasses that favored ophthalmologists and optometrists in private professional 78 123 U.S. 623 (1887).
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