Moore v. City of East Cleveland: A Few Comments and Questions

Justice Powell's plurality opinion is a wonderful example of a Justice struggling with the temptation to substitute his personal policy preferences for the rule of law under the Constitution. Take a look at his struggle on page 543:

"Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court."

So what does he decide to do? He says lets go with Substantive Due Process but limit the substantive liberties to those which are "deeply rooted in this Nation's history and tradition."

Would the Lochner Court have disagreed with Justice Powell's analysis of SDP? Or would it have simply argued that freedom of contract is a basic value that is deeply rooted in our Nation's history and traditions?

Indeed, the 5th vote in Moore was Justice Stevens who said the protected liberty was "appellant's right to use her own property as she sees fit." (p.545) Does he really mean this? Are all zoning laws and other laws regulating what property owners may do on their property unconstitutional?

Is the decision in Moore an example of "judicial activism?"