Note: This is an educational course, not legal advice.
The Lochner era ended in two steps, during the Depression. The result is the rule you met in Con Law I: rational basis: ordinary economic regulation is presumed valid.
Why it works
After 1937 the Court stopped second-guessing the wisdom of economic laws. United States v. Carolene Products Co. (1938) said such laws are presumed constitutional if any rational basis supports them, and its famous footnote four suggested closer review for laws that touch specific Bill of Rights guarantees, distort the political process, or target "discrete and insular minorities." Williamson v. Lee Optical (1955) upheld an Oklahoma law favoring optometrists and ophthalmologists over opticians because the legislature "might have" had a reason. Footnote four is the seed of the tiers of scrutiny in Unit 3: closer review for some rights and some groups, deference for the rest.
Key idea
Nebbia v. New York (1934) and West Coast Hotel Co. v. Parrish (1937) (overruling Adkins) ended close review of economic laws. Since then economic and social regulation gets rational basis review. Substantive due process did not end: its protection of personal and family rights continued and grew.
Worked example: A licensing law
A state requires anyone who sells caskets to hold a funeral director's license. A seller challenges it under the Due Process Clause as an irrational economic burden. What standard applies?
- This is economic regulation, with no suspect class and no fundamental right.
- After West Coast Hotel and Carolene Products, rational basis applies: the challenger must show no conceivable legitimate reason.
- Lower courts have split on laws like this one when the only apparent purpose is protecting an industry from competition; the standard itself is deferential.
Answer: Rational basis review, with the burden on the challenger.
Worked example: What did footnote four suggest?
Name the three kinds of laws that Carolene Products' footnote four said might get closer review.
- Laws that on their face fall within a specific prohibition of the Constitution, such as the Bill of Rights.
- Laws that restrict the political processes that could repeal bad laws (voting, speech, assembly).
- Laws aimed at "discrete and insular minorities," whom prejudice may shut out of those processes.
Answer: Specific constitutional prohibitions; restrictions on the political process; laws aimed at discrete and insular minorities.
Common mistake
Thinking substantive due process ended in 1937. Its economic branch receded. Its protection of personal rights, which had begun in cases like Meyer (1923) and Pierce (1925), continued and grew in Griswold, Loving and later cases (family and autonomy).