5.3.5. The Midwest, 1865-1900: The Rise of Substantive Due Process


  • The Granger Cases opened the door to an ever-expanding body of laws and agencies designed to address the many problems that followed in the wake of industrialization.  After 1875 Midwestern legislatures began to enact pure-food and public health laws; laws regulating physicians, pharmacists and other professions; laws for conservation of fish, game and soil; and laws regulating labor-management relations, unfair business practices and workplace safety.  The stream of laws grew steadily to the end of the century, although it did not reach its peak until the Progressive era (1900-1925).
  • Midwestern businesses frequently challenged such laws as unconstitutional.  They usually argued that the laws violated one or more of the following legal doctrines, collectively known as “substantive due process”: 
    • Due process and freedom of contract, because the laws deprived them of their property and contract rights to conduct their business and make bargains with others on terms of their own choosing.
    • Equal protection, because the laws unfairly singled out their businesses for regulation and thus discriminated against them.
    • The delegation doctrine:  only legislatures could create regulations, and they could not let agencies do the job for them. 
  • In the 1890s, the U.S. Supreme Court and many American state courts began examining regulatory laws critically.  The courts upheld most laws but struck down enough that reformers complained they were improperly interfering with necessary social change.  Some reformers even argued that courts should not be allowed to examine reform laws at all.  The debate was particularly active in the Midwest.

Early substantive due process cases:

Town of Lake View v. Rose Hill Cemetery – Illinois, 1873 (70 Ill. 191); Rippe v. Becker Minnesota, 1894 (57  N.W. 331)

  • In 1859, the Illinois legislature authorized a company to establish a cemetery in the small town of Lake View; but 10 years later, as Lake View was being engulfed by Chicago, the legislature enacted a new law barring use of part of the land for cemetery purposes.  The company claimed it had purchased the land in reliance on the old law and that the new law deprived it of its right to use its property.  In Rose Hill, a closely-divided Illinois supreme court agreed: once the legislature granted the company the right to acquire land and develop a cemetery it could not change the terms of that grant.  But __ judges argued the new restriction was a reasonable health measure, because urban growth would soon surround the cemetery and size restrictions were appropriate.   Rose Hill was one of the earliest judicial debates over the proper scope of police powers – a debate that would be repeated many times during the decades to come.
  • In Rippe, the Minnesota supreme court struck down a law authorizing construction of a state-owned grain elevator because Minnesota’s constitution prohibited state subsidy of internal improvements, but Justice William Mitchell defined the state’s powers broadly to include nearly anything which was “necessary for the general welfare.” Mitchell hinted that the court would not use substantive due process to put roadblocks in the way of such measures, and his hint proved accurate:  Minnesota’s court proved to be one of the most liberal in upholding reform measures.  

“The old Jeffersonian maxim was that the country is governed the best that is governed the least. At present, the tendency is all the other way, and toward socialism and paternalism in government.  This tendency is perhaps … inevitable, as … society [becomes] older,and more complex in its relations.” -Justice William Mitchell, in Rippe


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Rose Hill Cemetery, Lake View, Illinois (courtesy Wikimedia Commons)

“We are unwilling, however, to concede the existence of an indefinable [police] power, superior to the constitution, that may be invoked whenever the legislature may deem the public exigency may require it, by which a party may be capriciously deprived of his property or its use, without compensation.”  – Justice John Scott, in Rose Hill

“All property is acquired and held under the implied liability that the use of it may be so regulated that it shall not be injurious to the rights of the community.” Justice Benjamin Sheldon (dissenting), in Rose Hill