Notice that Lochner views Substantive Due Process as protecting the liberty of consenting adults to enter into any contract that pleases them, so long as no third party is harmed by their conduct. The decision protects the right of adults to choose--to make economic choices and to enter into economic relationships with other consenting adults.
Should laws that restrict the right of consenting adults to agree to wages, hours, rents, and other terms and conditions of their economic lives be held to violate the "liberty" protected by the Constitution? Does government have the right to impose a particular view of social justice and public morality on consenting adults who wish to enter into "unfair" or "immoral" or "unhealthy" agreements?
If you think the right of consenting adults to agree to labor on terms of their choosing is not a protected constitutional liberty, what about the liberty of consenting adults to engage in various types of sexual conduct and relationships? Should the state be allowed to regulate consensual sexual conduct under the police power--the power to pass laws to advance public health, safety, morals or the general welfare?
In other words, if you believe that the Constitution protects the "liberty of the citizen to do as he likes [in the bedroom] so long as he does not interfere with the liberty of others to do the same," (Holmes opinion at p. 520), then shouldn't adult citizens also have the right to do as they please in their economic lives? If your answer is no, why is paternalism and public morality a legitimate basis for legislation in the conference room, but not in the bedroom?
Why should we think SubstantiveDue Process protects the sexual autonomy and right of choice of adults, but not the economic autonomy and right of choice of adults? Is it because the one liberty is "fundamental" and the other is not? How do you know this? Which language or principle in the written Constitution supports your analysis?
No comments:
Post a Comment