Republication- Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany-Reference-Cited by-同舟云学术

Republication- Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany

Published:2008-12-01 Issue:12 Volume:9 Page:2179-2222
ISSN:2071-8322
Container-title:German Law Journal
language:en
Short-container-title:Ger. law j.

Author:

Currie David P.

Abstract

[T]here exists some strange misconception of the scope of this [due process] provision. … [I]t would seem, from the character of many of the cases before us, and the arguments made in them, that the clause… is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant… of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.

As Justice Miller's famous lament suggests, wishful thinkers have sought since the beginning to find a way of making the United States Supreme Court ultimate censor of the reasonableness of all governmental action. Justice Chase thought he had discovered the magic wand in natural law, Justice Bradley in the Privileges or Immunities Clause, Justice Goldberg in the Ninth Amendment. Miller battled bravely, but he had lent significant support to the enemy with his freewheeling opinion inLoan Association v. Topeka.The fire was kept flickering in dissent and in majority opinions upholding laws against due process and equal protection challenges only because they were reasonable. It burst into full flame inLochner v. New Yorkin 1905, and for the next quarter century the Supreme Court was indeed what Justice Miller had denied it should be: ultimate censor of the reasonableness of all governmental action.

Publisher

Cambridge University Press (CUP)

Subject

Law

Reference360 articles.

1. See, e.g., 27 BVerfGE 1, 6(1969) (Microcensus): “It would be inconsistent with the principle of human dignity to require a person to record and register all aspects of his personality even though such an effort is carried out in the form of a statistical survey; [the state] may not treat a person as an object subject to an inventory of any kind.” The census questions in issue, which pertained to vacation habits, were held permissible.

2. See 24 BVerfGE 367, 400 (1968).

3. 6 BVerfGE 55, 70–84 (1957).

4. The civil and administrative courts, on the other hand, have developed an extensive jurisprudence for determining when regulation amounts to a taking; the problem has proved as refractory in Germany as it has in the United States. See Papier, Art. 14, in 2 Maunz/Dürig, Para. Nr. 291–450, arguing (Para. Nr. 449) for a test based upon the severity of the restriction (cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)); Leisner, in 6 Handbuch des Staatsrechts § 149, Para. Nr. 148–51, arguing that such a test should be complemented by special concern for those made to bear an undue share of the total burden (Sonderopfertheorie).

5. 45 BVerfGE at 245; see also id. at 228–29. As the quotation suggests, this decision was not based entirely on Article 1(1). See id. at 223, noting the obvious involvement of Article 2(2)'s right to personal liberty; id. at 239, concluding that the “interest in rehabilitation flows from Article 2(1) in tandem with Article 1.” In early days doubts had been expressed whether Article 1(1) was directly enforceable at all, partly because Article 1(3) made only the “following” basic rights binding on government organs as “directly enforceable law.” See, e.g., Dürig, Art. 1(1), in 1 Maunz/Dürig, Para. Nr. 4, 7 (adding, in Para. Nr. 13, 16, that it hardly mattered since the dignity principle had to be employed as a standard in interpreting other constitutional provisions as well as the ordinary law). For the contrary view, see Podlech, Art. 1(1), in 1 Luchterhand, Para. Nr. 61. To this date the Constitutional Court has never invalidated government action on the basis of Article 1(1) alone.