Williamson V. Lee Optical - Full employment for ophthalmologists

• Douglas 1955. Holding. SCt upheld an Oklahoma statute that, inter alia, prevented opticians from fitting eyeglass lenses into frames (even old lenses into new frames) without a prescription from an ophthalmologist or optometrist.

• The purpose of the law seemed obviously to be full employment for ophthalmologists and optometrists, but Douglas strained to find other purposes.

• The statute was a rational health measure, SCt found, because the legislature “might have concluded” that in some instances prescriptions were necessary to permit accurate fitting, or that “eye examinations were so critical, not only for correction of vision, but also for detection of latent ailments or diseases, that every change in frames and every duplication of a lens should be accompanied by a prescription from a medical expert.” Similar hypothetical justifications were given for restrictions on advertising by opticians.

Ferguson V. Skrupa

• Black 1963. Holding. Sustained a Kansas law prohibiting non-lawyers from engaging “in the business of debt adjusting.”

• Rationale. Black stated that SCt had “abandoned the use of the ‘vague contours’ of the Due Process Clause to nullify laws which a majority of the SCt believed to be economically unwise. SCt would not “refuse to sit as a ‘superlegislature to weigh the wisdom of legislation.’”

• AK. This was precisely the sort of monopoly upheld in Slaughter-House, which suggests that SCt has come full circle here. Against, SCt saw the lesson of history as involving the limits of judicial authority.

Summary of substantive due process - Economic rights

• Should SCt go further than it has in protecting economic liberty?

• The answer depends in part on whether you think New Deal revolution was constitutionally and/or democratically legitimate.

• Also depends on whether you think that an unregulated economy maximizes individual liberty. Cardozo (in Blaisdell), argued that unprecedented economic regulation was necessary to “maintaining the economic structure on which the good of all depends.” At the time, millions of people who found themselves unemployed did not feel especially free, and aggressive government action to put them back to work did not feel especially oppressive.

• Without a doubt, SCt has cheerfully upheld some abusive legislation.

• Carolene and Williamson both have little to do with protecting the public or regulating the economy, and as much to do with creating monopolistic advantages for certain undeserving special interests.

• Should the courts do anything about this? Answer depends not only on how severe the problem is, but also on the courts’ institutional capacities.

1. Once it is conceded that redistributive and paternalistic purposes are acceptable, it is hard for courts to rule out in advance any category of legislation.

2. Policing the legislative process would require courts to evaluate the case for each one of the thousands of interferences with economic liberty that the modern regulatory state undertakes daily. This may be the principal consideration that has moved SCt to abdicate this field altogether.