The Lochner Era & “Substantive Due Process” (Part Two)

May 17, 2020June 4, 2023 ~ Blue Cereal

NOTE: If you haven’t already done so, you should probably start with Part One of this post. I mean, I can’t force you or anything, but…

“Economic Substantive Due Process” in the Lochner Era

“School choice” wouldn’t emerge onto the national scene until after Brown v. Board of Education (1954) and the various forays into moral corruption and social decay wouldn’t become staples of the nation’s highest court until a decade after that. The rest of the Lochner Era was largely about how freedom meant letting corporations do whatever they wanted to workers because those being exploited had just as much theoretical control over the outcome as their gilded overlords did. (They didn’t put it in those exact terms.) Between 1897 – 1937, the Supreme Court struck down nearly 200 different statues, most as violations of “freedom of contract” or other violation of “economic substantive due process.”

The Court acknowledged in principle that state and even sometimes federal government had some limited authority to regulate workplaces in order to promote safety and the general welfare, but only in cases involving explicit physical danger. Efforts to regulate mining, for example, might have a chance; restricting the hours during which one could safely bake bread, on the other hand… not so much.

Any such regulations should avoid restricting “market choices”; they couldn’t interfere with the ability of men to sign up for whatever working conditions they choose at whatever wages are available. The Lochner Era had little use for Congress’s claims to expanding authority under the Commerce Clause, making it one of those rare periods in U.S. history during which federal power didn’t simply expand at will. The Court was particularly unsympathetic towards labor unions during this period, regularly striking down laws facilitating union activities or offering workers more leverage in negotiations.

Other Major Cases of the Lochner Era

Here are a few of the more frequently cited cases of the period, although there were dozens of others which could just as readily demonstrate the ideology of the era:

Adair v. United States (1908) – Congress passed legislation in 1898 prohibiting “yellow dog contracts” in which workers agreed to forego union membership in order to obtain employment. When an interstate railroad company nevertheless fired an employee for joining a labor union, they argued that the Fifth Amendment protected them from being deprived of their liberty or property without due process (no doubt meaning the “substantive” variety). The Supreme Court agreed. While Congress had the right to regulate interstate commerce, that didn’t give them the right to interfere in the “liberty of contract” between employers and employees.

Hammer v. Dagenhart (1918) – In 1916, Congress passed the Keating-Owen Bill, which attempted to standardize protections for children under the age of 16 (or 14 in some industries) working in factories or other labor-intensive industries. The Court declared Keating-Owen unconstitutional, insisting that Congress’s power to regulate interstate commerce was intended to facilitate trade among the States, not stretched to regulate labor and production itself. Besides, the Court pointed out, the States had already addressed the issue in their own ways, as the Tenth Amendment allowed.

Adkins v. Children’s Hospital (1923) – The District of Columbia passed a minimum wage law for women and minors, complete with provisions for investigation and enforcement. The Children’s Hospital of D.C. protested that this was a violation of their “freedom of contract” as clearly established in Lochner v. New York (1905). The Supreme Court agreed and overturned the minimum wage legislation based on the same principles articulated in Lochner, adding that the law was “arbitrary” in that it imposed a uniform minimum wage regardless of women’s individual skills, occupations, wants, or needs. Besides, the Court added, with the passage of the 19th Amendment only a few years before, the idea that women required special protection was quickly becoming antiquated.

Carter v. Carter Coal Company (1936) – The Bituminous Coal Conservation Act of 1935 was intended to establish national standards for the coal industry. It was not technically mandatory, but companies who agreed to pay the designated wages, limit working hours to those spelled out in the legislation, and follow the suggested pricing guidelines, received a substantial tax refund. The Court determined that Congress had (once again) overstepped its authority under the Commerce Clause. Employee wages and hours were part of production, not distribution or sales, and any relationship between the two was indirect at best. If individual states wished to regulate their industries in this way, that was fine – but nothing in the Constitution gave the federal government the right to step in on this level.

West Coast Hotel Co. v. Parrish (1937)

On its surface, West Coast Hotel was a fairly straightforward case. The State of Washington set a minimum wage for women and minors working in most professions. Elsie Parrish, who worked at a local hotel, sued for the difference between what she actually made and the legal minimum. Lower courts, following the precent set in Adkins v. Children’s Hospital (1923), found in favor of the hotel – “freedom of contract” and “substantive due process” and all the usual staples of what was by this time forty years of “Lochner Era” jurisprudence.

When the case reached the Supreme Court, however, they found for Parrish and the State of Washington. The minimum wage was fine. Adkins was officially overturned. Just like that, the Lochner Era was over.
West Coast Hotel marked a dramatic shift in the Court’s approach towards legislation regulating industry and protecting workers. This was not the result of a massive change of heart or mind by nine robed individuals, but a philosophical reversal on the part of a single Supreme – Justice Owen J. Roberts. Many of the infamous Lochner cases were decided by split votes, with 5 – 4 being the most common. West Coast Hotel was decided 5 – 4 as well, but 4 of the new 5 were the same core group who’d been overruled in similar cases for decades prior.

Why the change? Popular wisdom suggests it was a reaction to President Franklin D. Roosevelt’s infamous “court packing plan” via the Judicial Procedures Reform Bill of 1937. Tired of having so many of his New Deal efforts stymied or outright overturned by the Court, FDR proposed adding six additional justices over a period of several years – claiming he simply wanted to help the Court manage its extensive workload.
There was nothing unconstitutional about adding Justices to the Court, but even his supporters saw it as a rather obvious ploy to gain some leverage over a troublesome Supreme Court. Although the bill failed, perhaps Roberts sensed a change in the popular winds and decided it was time for the Court to pick its battles more carefully. Someone coined the phrase “the switch in time that saved nine” in reference to Roberts’ change of heart and the term stuck.

The Inglorious Demise of Economic Due Process

The Majority Opinion in West Coast Hotel, penned by Chief Justice Charles Evans Hughes, accepted the State’s argument that women and minors were particularly vulnerable to exploitation by employers and that what was bad for women (many of them mothers) usually ended up being bad for society as well. This was the opposite of the “women don’t need no stinkin’ protection” approach of Adkins, but if you’re going to overturn a previous ruling, you might as well go all the way.

In an instant, the “economic substantive due process” went from being head cheerleader to the weird girl no one would invite to parties. It fell out of favor, seemingly inexplicably, and has been generally villified ever since. Lochner v. New York (1905) is now regularly lumped together on “worst ever” lists with cases like Scott v. Sandford (1857), Plessy v. Ferguson (1896), and Citizens United v. FEC (2010).

The idea that there are unenumerated rights just as essential to personal liberty as those spelled out explicitly, however, did not go away. Some would argue it had been there all along – hence the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Eventually “substantive due process” would re-emerge. It periodically popped up in the slew of “rights of the accused” cases for which the Warren Court is best-remembered, then – as previously mentioned – became a staple of both sexual freedom jurisprudence and a re-imagining of “religious liberty” far more aggressive than a generation ago. Because it relies on inference and historical interpretations, it’s both malleable and unpredictable. Perhaps the biggest error of the Lochner Era courts wasn’t their use of “unenumerated rights” in making their decisions, but their elevation of those inferred rights to a status which trumped all other considerations – economic, social, or legal.

The Lochner Era & “Substantive Due Process” (Part One)

May 15, 2020June 4, 2023 ~ Blue Cereal

The Lochner Era (Introduction)

There are several periods in the history of the Supreme Court in which tend to be remembered for an overall approach and lasting impact rather than for a specific case or two. Often they’re simply referred to by the name of the Chief Justice at the time – the Marshall Court of the early 19th century promoted federal power in the early days of the United States, the Warren Court discovered a slew of new rights and protections for the accused in the 1950s and 1960s, and the Roberts Court…

Well, it’s a bit early to make that call.

The Lochner Era (1897 – 1937), however, is named for a case representing a judicial philosophy which dominated the nation’s highest court for nearly forty years. For over a generation, the Court pushed back against the reform efforts of the Progressive Era and gave FDR fits by overturning many of his best efforts to regulate industry during the Great Depression. They laid the foundation for the modern “school choice” movement by uncovering new rights related to parenting and families. In the process, they brought to life an understanding of the Fourteenth Amendment that would end up securing the rights of American citizens to contraception, gay sex, and abortions.

Who saw THAT coming?

The 20th Century Begins

The Spanish-American War was over, the U.S. was quickly becoming a leader in imperialist expansion, and World War I wasn’t yet a twinkle in the Kaiser’s eye. The Second Industrial Revolution was in full swing; massive manufacturing and swelling cities increasingly absorbed available real estate. The American Federation of Labor (AFL) had recently formed under the leadership of Samuel Gompers and was already making headway with practical issues like slightly higher wages and better working conditions. These gains were local and inconsistent, however, and advocates hoped for a little help from higher-ups.

Crowded, dirty, dangerous cities and the evolving power of media to reveal “how the other half lives” brought about what would be remembered as the “Progressive Era.” Reformers began staking out victories, primarily at the municipal level – although by 1920 they could celebrate four new constitutional amendments as well. Both churches and charities were inspired by the idea that individuals, with a little help and “encouragement,” could improve. Individuals make up families, families make up societies… the world could become a better place, starting with the education of one child, the health of one mother, the reform of one man.

At the same time, human fallibility was both substantial and entrenched. While individuals offering soup and a place to sleep were certainly part of the solution, many believed fundamental changes in the system would be necessary for long-lasting, widespread prosperity. It was time to get local, state, and even national government to “promote the general welfare” a bit more aggressively. The most logical place to begin was the epicenter of discord between the handful of men who seemed to own everything and those perpetually consumed in their name – the workplace.

Lochner v. New York (1905)

It was in the spirit of societal progress that the State of New York passed the “Bakeshop Act,” which prohibited bakers from working more than 10 hours a day or more than 60 hours a week. Like other labor reform, the intent was to protect workers from being exploited by greedy owners – those certain intellectuals referred to as the bourgeoisie. Joseph Lochner was a New York baker who violated this law several times and was fined as a result. Lochner protested that the law was unconstitutional. The Fourteenth Amendment, he argued, protects “freedom of contract,” in principle if not in name. Why should the government interfere with an otherwise legal, private business arrangement between two rational adults?

The case eventually reached the Supreme Court, which sided with Lochner. Justice Rufus W. Peckham, writing for the majority, explained the Court’s reasoning:

There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State.

In short, bakers are grown-ups just like anyone else, and they can make their own decisions about whether or not to agree to specific hours, wages, or anything else. Expand that to include most of the adult workforce, and you have the basic philosophy of the entire Lochner Era.

Allgeyer v. Louisiana (1897)

Lochner wasn’t the first indication the Court was moving this direction. Nearly a decade before, the case of Allgeyer v. Louisiana had reached the Supremes. Louisiana had passed a law intended to protect state businesses by prohibiting out-of-state insurance companies from selling policies in Louisiana. Allgeyer & Co. was a Louisiana company that bought out-of-state insurance anyway and were assessed heavy fines by the State as a result. They argued that the law itself was unconstitutional based on the Fourteenth Amendment’s “due process” guarantee.

The Court acknowledged the State’s obligation to protect its inhabitants but found in favor of Allgeyer & Co. based on a rather Gordian brew of precedent and equivocation. Along the way, however, a concept emerged which would shape the next forty years – “economic liberty.” While the term itself was absent from the Fourteenth Amendment (or any amendment, for that matter), the idea is inherent in the text as a whole – or so the Court determined. Although no one knew it yet, the Lochner Era had begun.

“Procedural” Due Process v. “Substantive” Due Process

This discovery of “economic liberty” in the Fourteenth Amendment meant that states like Louisiana, and later New York, couldn’t limit an individual’s right to make his or her own economic decisions without what the Fifth and Fourteenth Amendments call “due process.” (The Fifth specifically limits federal power; the Fourteenth extends those limits to state and local governments.)

The Framers wished to prevent the sort of tyrannical justice handed out by kings or dictators, and to ensure the U.S. remained a nation of laws rather than of men and their unreliable judgements. While the government can, in some situations, take your life, liberty, or property, doing so requires they first clear numerous hurdles and meet certain standards. Those hurdles and standards are “due process.”

The most common understanding of this principle involves “procedural due process.” Anyone accused of a serious crime is guaranteed a fair trial before a jury of their peers. They have a right to an attorney and there are limits as to how the State may go about making the case against them. “Procedural due process” refers to the steps which must be taken and the hurdles which must be cleared before any level of government can take or limit your life, liberty, or stuff – whether the issue is property taxes, prison time, or capital punishment. The concept isn’t limited to criminal law; “due process” is also the steps your public school has to go through before suspending or expelling little Marco for his various violations, and why his guardians or other advocates have the right to challenge the system along the way.

What the Court was calling forth in Lochner, however, wasn’t procedural. The steps had been followed – the legislature passed a law, the bureaucrats distributed the rules, Lochner violated them, enforcers caught him, and the local court heard his case and declared him guilty, all before assessing those fines. What Peckham and the majority were relying on was something else – what would eventually be referred to as “substantive due process.”

Defining Between the Constitutional Lines

“Substantive due process” is a bit harder to define, and it’s been controversial ever since it first emerged. Some see it as jurisprudential accommodation of the natural rights and common law traditions which sparked the nation’s birth to begin with, while others find it more akin to the Voldemort tumor under Professor Quirrell’s turban, manipulating dark justices into sacrificing spare rights on their way to defeating the Constitution-that-Lived once and for all.

One of the better explanations comes from Professor Erwin Chemerinsky, Dean of UC Berkeley’s Law School:

Substantive due process asks the question of whether the government’s deprivation of a person’s life, liberty or property is justified by a sufficient purpose. Procedural due process, by contrast, asks whether the government has followed proper procedures when it takes away life, liberty, or property. Substantive due process looks to whether there is a sufficient substantive justification, a good enough reason for such a deprivation.
Consider this simple illustration. The Supreme Court has said that under the word liberty in the due process clause, parents have a fundamental right to the custody of their children. Procedural due process means that the government must give notice and a hearing before it can permanently terminate custody. Substantive means the government must show a compelling reason that would demonstrate an adequate justification for terminating custody.

What “substantive due process” protects, then, are what we sometimes refer to as “unenumerated rights” – protections implied by the written words of the Constitution and its Amendments, perhaps even inherent in them, but not spelled out as such. In the Lochner Era, this primarily referred to “economic substantive due process” – ideas like “freedom of contract” between companies and workers. It was during this same era, however, that two cases were decided largely on the basis of “substantive due process” which had nothing to do with workers rights or minimum wages. Meyer v. Nebraska (1923) involved the right of parents to determine the specifics of their child’s education and of educators to offer wildly controversial courses like foreign languages. Pierce v. Society of Sisters (1925) allowed parents to choose private schooling, religious or otherwise.

Both Meyer and Pierce were cited repeatedly throughout the 20th century as evidence of the validity of unenumerated rights. They are, in fact, the foundation of most “school choice” arguments – particularly by those most determined to funnel public tax dollars into religious training via “vouchers” and related schemes. Ironically, however, the same controversial judicial philosophy which allowed the Lochner Courts to strike down efforts to regulate big business and which encourages “school choice” advocates to keep fighting the good fight served as the foundation for another collection of unenumerated rights which emerged rather dramatically in the late 20th century.

It called itself the “right to privacy.” You’d recognize it anywhere because it wears a giant “pro-choice” button, uses contraception, and constantly marries someone of a different race but the same sex.

NEXT: The Lochner Era & “Substantive Due Process” (Part Two)

Property Rights vs. The Communal Good – Two Early Supreme Court Cases

May 12, 2020June 4, 2023 ~ Blue Cereal

The dilemma of any effort to compile “must know” Supreme Court cases is deciding where to draw the line. If you narrow it to a list of 12, there are at least 3 or 4 others that really MUST be added in the name of consistency. If you expand the list to, say… 24, you’re sacrificing another half-dozen that should simply NOT be neglected if you’re to retain ANY credibility.

Then there’s the actual summarizing. How much background really matters to the casual reader or panicked student? Is it enough to say that the Dred Scott decision declared that slaves weren’t people and Congress couldn’t limit slavery in the territories, or is it necessary to explain how this helped lead to the Civil War? What about the individuals involved and their stories? Even notoriously bad Supreme Court decisions are built around real situations, the details of which matter very much to the outcome. Besides, decisions (good or bad) mean nothing out of their historical context, do they?

It’s in that spirit I’ve decided to add a dozen or so cases to my ongoing effort to publish my own compilation of accessible, enlightening, brilliantly witty summaries of the “Landmark Supreme Court Cases” every American should know and every worried student can reference before the AP Exam or Semester Test. Rather than duplicate my approach with the current fifteen or so, these additions will be one-page summaries hitting the highlights of each case along with a brief excerpt from the Court’s majority opinion.

In my draft, I’m calling these “Worth A Look.” Because they’re, well… you know.

The two cases below occurred forty years apart and involved very different circumstances. In Charles River Bridge v. Warren Bridge (1837), the issue was whether or not Massachusetts owed it to a company with whom they’d done business to stick to the implied terms of their original contract. In Munn v. Illinois (1877), the question was whether or not the state could regulate private business in the name of public good. Both, however, dealt with the question of property rights and individual autonomy vs. the social contract – what was good for society as a whole. It’s that aspect I find most interesting, and most relevant all these years later.

**Worth A Look: Charles River Bridge v. Warren Bridge (1837)**

{W}hat is a monopoly, but a bad name, given to anything for a bad purpose? Such, certainly, has been the use of the word in its application to this case… A monopoly, then, is an exclusive privilege conferred on one, or a company, to trade or traffick in some particular article; such as buying and selling sugar or coffee, or cotton, in derogation of a common right. Every man has a natural right to buy and sell these articles; but when this right, which is common to all, is conferred on one, it is a monopoly, and as such, is justly odious. It is, then, something carved out of the common possession and enjoyment of all, and equally belonging to all, and given exclusively to one.
But the grant of a franchise is not a monopoly, for it is not part or parcel of a common right. No man has a right to build a bridge over a navigable river, or set up a ferry, without the authority of the state. All these franchises, whether public property or public rights, are the peculiar property of the state… and when they are granted to individuals or corporations, they are in no sense monopolies; because they are not in derogation of common right.
{from the Court’s Majority Opinion, by Chief Justice Roger B. Taney}

In 1785, the Massachusetts legislature worked out a deal with the Charles River Bridge Company (CRBC). In exchange for building and maintaining a bridge across the Charles River (connecting Boston and Cambridge), the company would have the right to collect tolls from those traveling over the bridge. The bridge was built and the company because quite wealthy from the tolls, which they kept rather steep even long after their initial costs were recouped. Over time, as Massachusetts continued to grow, people grew rather annoyed with the high tolls and demanded their elected representatives do something about it.

In 1828, the state legislature granted a new charter to the Warren River Bridge Company (WRBC), who built a second bridge not all that far from the first. This bridge, however, was to be toll-free once initial costs were recovered and a reasonable profit earned for the company. Not surprisingly, people liked this bridge much better. The Charles River Bridge Company sued in state court, claiming the new charter violated their property rights and represented a broken contract by the State of Massachusetts. Not only was this very naughty, they argued, but it violated Article I, Section 10 of the U.S. Constitution, which says (among other things) that “no state shall… pass any… law impairing the obligation of contracts…”

The case worked its way to the Supreme Court, which found that Massachusetts had neither broken their original contract with CRBC nor violated the “contract clause” of the Constitution. While the original contract with CRBC may have been reasonably understood to suggest monopoly rights for the life of the company or the bridge, the contract never actually stated that, so… oops.

The Charles River decision was important for several reasons beyond “read the small print before you sign.” It was an early demonstration of Chief Justice Roger B. Taney’s desire to pull back from the passionate nationalism of his predecessor, John Marshall. Taney was a big believer in States’ Rights, which would shape a generation of Supreme Court decisions in various ways – most infamously in the Dred Scott decision authored by Taney in 1857.

Charles River also reflected a concern with the “general welfare” of both society and the economy. The perceived exploitation by CRBC as they refused to back down on their rates or otherwise compromise for the good of the collective meant they were standing in the way of prosperity. What if steamboat operators who’d received exclusive rights up and down the river took a similar approach and decided that competition from railroads violated the spirit of that agreement? Should perceived property rights be allowed to hold back society’s progress indefinitely?

States can limit or modify what’s acceptable even in contracts between private citizens or organizations as long as such interference is tempered with reason and done in the name of appropriate state “police powers.” They also have great latitude to serve the “general welfare” of their citizens. That didn’t start with Charles River, but the case certainly helped clarify and strengthen those roles going forward.

**Worth A Look: Munn v. Illinois (1877)**

When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. “A body politic,” as aptly defined in the preamble of the Constitution of Massachusetts, “is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”
This does not confer power upon the whole people to control rights which are purely and exclusively private… but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government…
Under these powers, the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise, it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and, in so doing, to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day, statutes are to be found in many of the States upon some or all these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property…
{from the Court’s Majority Opinion, by Chief Justice Morrison R Waite}

Responding to pressure from the National Grange (a farmers’ cooperative often remembered simply as the “Grangers”), the state of Illinois passed legislation capping the amounts grain elevators and storage warehouses could charge. A Chicago warehouse run by Munn & Scott was caught overcharging and found guilty after a brief trial. They appealed, claiming that the state-imposed limits on their income was a violation of the Fourteenth Amendment which says, in part, that no State may “deprive any person of life, liberty, or property, without due process of law.”

The Supreme Court rejected this line of reasoning and validated the “Granger Laws” as entirely appropriate and constitutional. Since before the founding of the United States, Chief Justice Waite explained, the foundational purpose of enlightened government is to support and regulate the social contract – each citizen giving up a small bit of autonomy for the larger good. In the end, this benefits everyone, including those making these minor sacrifices.

The Court also noted that while the Commerce Clause (in Article I, Section 8 of the U.S. Constitution) gives the federal legislature final power over interstate commerce, that doesn’t prevent states from reasonable regulation and oversight of the portion of that commerce taking place within their borders. The extent to which states could exercise this regulation and oversight was severely rolled back a decade later in Wabash, St. Louis & Pacific Railway Company v. Illinois (1886), after which Congress created the Interstate Commerce Commission to regulate railroad and storage rates, and eventually a wide range of public utilities.

Munn established the validity of legislation regulating any industry or service determined to be essential to public interests. In the short term that primarily meant those related to farming and distribution of crops – meaning even the all-mighty railroads were impacted by the Court’s decision. While which products or services are considered essential to the public good have naturally evolved over the years, but the underlying principle has held ever since.

A Moment of Silence: Wallace v. Jaffree (1985)

May 4, 2020June 4, 2023 ~ Blue Cereal

Is It Constitutional Now? How About Now? Or Now?

Three Big Things:

1. After it became clear that state-sponsored prayer was no longer a realistic option in public education, states began experimenting with the idea of a “moment of silence” during which students could pray (although no one had ever suggested that they couldn’t).

2. Alabama, in particular, kept nudging the idea forward – first it was a “moment of silence,” then a moment in which students might choose to pray, then teachers leading students in “voluntary” prayer, etc.

3. Along the way, one federal judge acknowledged that this was akin to “establishing a state religion,” but determined that was perfectly fine because states could do that. The Supreme Court agreed with the first part of that decision. They did not go along with the second.

Background

In Stone v. Graham (1980), the Court shot down the required posting of the Ten Commandments in public school classrooms. In case anyone had wondered, the Constitution still frowned on pushing religion via the public education system.

But then Reagan took office, and a conservative revolution of sorts swept the nation. At the risk of overdramatizing, the Reagan Era wasn’t just a presidential administration. As President, he championed a sort of American Exceptionalism marinated in Book-of-Revelation Sauce. The passion and righteous zeal of his adherents at times pre-empted reason, law, or precedent. It was a social movement as much as a political shift, comparable to Kennedy’s “Camelot” in impact but quite distinct in its flavor. Evangelicals were emboldened while the media and courts were demonized. Liberals weren’t just political opponents, but America’s enemies – both deceptive and deceived.

It was in this climate that Alabama decided that American Christianity could simply no longer survive without their assistance. It was time to make a statement and test the limits of this silly “wall of separation.” If their righteous fury just happened to appeal to a widely conservative voting base, well… thy will be done.

A Moment Of (Insert Options Here)

In 1978, Alabama passed legislation calling for a “moment of silence” at the start of each school day to allow “for meditation.” They weren’t alone. Many states had instituted some variety of the “moment of silence” after Engel v. Vitale (1962) and Abington v. Schempp (1963) had made it quite clear that overt theological indoctrination or proselytization by representatives of the State were a big “no-no” during the school day.

The “moment of silence” was thus a symbolic move as much as anything. Few non-politicians would argue that taking 5 – 7 seconds (or even the full minute required by some versions) to sit in awkward silence has a measurable impact on students’ mindsets or willingness to learn. Students, of course, had never lost the right to pray whenever and wherever they chose, so long as they did not willfully disrupt classes or become overly aggressive towards the uncooperative. (In other words, they were expected to be better behaved than their political leaders.)

What the “moment of silence” allowed legislatures to do, however, was to step right up to the line of church-state separation and dare the courts to do something about it. Legislators sponsoring these bills often said as much from the floor, dropping subtle little hints like, “We’re doing this because we want to get prayer back into public schools and we dare the courts to do anything about it.”

This reality alone would have been enough to kill any chance of proposed legislation surviving the “Lemon Test,” the first stage of which was that legislation must have a valid secular purpose. It’s possible none of them knew this, but it seems more likely they simply had ulterior motives for pushing the issue anyway. In Alabama, at least, that’s exactly what they did.

After a few years of a “moment of silence” went by without recorded difficulty, Alabama took things a step further. In 1981, the state legislature updated the statute so that the moment of silence would be presented each day as a time “for mediation and voluntary prayer.” Their momentum building, they upped their game yet again in 1982 and instructed teachers to lead “willing students” in a state-written prayer.
That part, not surprisingly, finally triggered the anticipated backlash.

Pray Or Be Prey

Ishmael Jaffree had three kids in Mobile County Public Schools – two in second grade and one in kindergarten. He protested the state-designed prayer, starting at the building level, but to no avail. Although he had plenty of established case law on his side, he didn’t initially focus on the abstract constitutional issues in play. Jaffree’s primary concern was that his kindergartener was being targeted by other kids for not participating in the prayers. His five-year-old was essentially bullied for not falling into line with state-mandated religious activities, and teachers refused to do much to stop it.

He wasn’t alone. In a similar case going on in West Virginia at the same time, a Jewish student was challenged by peers for quietly reading during the “moment of silence.” He needed to pray, they told him, or he’d “go to hell with the rest of the Jews.”

Yes, the prayer was technically voluntary – but as anyone in education knows, “voluntary” can mean many different things. As had been demonstrated a generation before when young Jehovah’s Witnesses quietly refused to pledge their allegiance to the American flag, it matters whether such choices are defended by those in power. There will always be those who hurt others verbally, physically, or otherwise for not sharing their nationalism or their faith, but there will be far more hurting going on when those in the minority are “otherized” by the State (at any level) because of their beliefs.

Establishing A State Religion?

In an interesting wrinkle, the federal district judge who heard this case as it worked its way through the system chose to ignore precedent and acknowledge that while, yes, Alabama was in effect “establishing” a state religion, they were perfectly within their rights to do so. While the federal government was constrained by the First Amendment, the states were not. “Alabama has the power to establish a State religion if it chooses to do so,” he explained. He even had a few pages of convoluted historical analysis to back this up.

Needless to say, that one caught everyone on both sides pretty much off guard. The decision was quickly reversed by the 11th Circuit Court of Appeals, and the case – not surprisingly – eventually ended up in the Supreme Court. It had already been determined in the lower courts that the first version of the law – the “moment of silence” from 1978 – was constitutionally acceptable. Since no one was disputing that, the Supreme Court acknowledged then ignored it. The Court of Appeals had already declared both the second and third versions of the law unconstitutional based on having no legitimate secular purpose. The Supreme Court accepted without debate that determination regarding version three – where teaches led willing students in a “voluntary” prayer.

What remained to be determined, however, was that middle version – the one about “voluntary meditation or prayer.” Was this establishment, or would shutting it down be a violation of free exercise?

The Decision

The Court determined 6 – 3 that Alabama, in their 1981 version of the “moment of silence” law, had violated the Establishment Clause of the First Amendment as applied to the states via the Fourteenth. They cited testimony from the lawmaker sponsoring the bill, who was – to his credit – upfront about its purpose. Because the changes implemented in 1981 clearly had no valid secular purpose, as required by the “Lemon Test,” the law was unconstitutional.

Justice Sandra Day O’Connor wrote an interesting concurring opinion, supported (but not officially joined) by Justice Lewis F. Powell in his own. O’Connor began by reminding everyone of a fact often lost in the political rhetoric: nothing decided by the Court in any way limited the rights of students to pray individually or collectively at school or anywhere else, so long as they were not overly disruptive to the school day. She used the rest of her concurrence to address two facets of Wallace she believed required a little jurisprudential elaboration. In her own words:

I write separately to identify the peculiar features of the Alabama law that render it invalid, and to explain why moment of silence laws in other States do not necessarily manifest the same infirmity. I also write to explain why neither history nor the Free Exercise Clause of the First Amendment validates the Alabama law struck down by the Court today.

Her historical analysis is interesting enough. Along the way she defends the continued use of the “Lemon Test” while suggesting perhaps it would benefit from some polishing or updating to help maintain its usefulness.
The more relevant part for states and districts post-Wallace, however, is her discussion of similar “moment of silence” laws which may share the goals and even the verbiage of Alabama’s but not its background. In other words, how would this statute – or something very similar – fare if passed without being preceded by the announcement it was intended to be evangelical and almost immediately followed by an “oh just pray with them already!” update? The short version was that they’d probably be fine if they simply avoided being quite so transparent about their religious goals.

While O’Connor expressed confidence the Court could tell the difference between sincere efforts at secular legislation and thinly veiled movements towards state-sponsorship of religion, it’s not much of a leap to infer that the real lesson was that politicians should be a bit less forthcoming about their motivations for this sort of legislation. In short, Alabama had simply made it too obvious what they were trying to do.

Dissents

Each of the three dissenting justices wrote a separate opinion. Justice White’s is brief and not particularly enlightening. The other two, however, are both scathing and poignant. As the balance of power in the nation’s highest court continues to shift, it’s quite possible they’ll find new life in 21st century jurisprudence. It’s not inconceivable they could soon represent the majority view rather than the outraged minority.

Chief Justice Warren Burger primarily disagreed with the idea that the option of voluntarily praying during a moment of silence qualified as government coercion towards religion. He cited other examples of times religion appeared in government functions without great trauma. Burger was particularly unimpressed by the Court’s citations of the law’s sponsor as proof it lacked a valid secular purpose.

Burger pointed out that the comments came after the bill’s passage and were accompanied by an assertion by the same legislator that he simply wanted to make the point that students had every right to pray in school if they so chose. Most significantly, in Burger’s mind, there was no evidence that the comments of one legislator after-the-fact in any way reflected the reasoning of the majority who’d voted to support the legislation in the first place.

Finally, for good measure, he mocks the Court’s use of the “Lemon Test,” calling it a “naive preoccupation with an easy, bright-line approach for addressing constitutional issues.” In short, Burger thinks the majority’s reasoning is absurd and their reactions completely out of proportion to circumstances, and he’s not shy about explaining precisely why.

Justice William Rehnquist (who will eventually become Chief Justice) takes an entirely different approach. His dissent undercuts the validity of the “wall of separation” imagery as an accurate representation of the goal of the First Amendment’s religion clauses to begin with. Most of his dissent is taken up in extended historical analysis of the origins of the Amendment and how very much NOT THERE Jefferson was the entire time. He also cites multiple examples from early American history in which the same men who wrote and ratified the First Amendment clearly didn’t seem to think it prohibited the federal government from proclaiming days of prayer or thanksgiving or otherwise acknowledging the role of the Almighty in their affairs.

It’s a pretty impressive historical case.

In short, Rehnquist prefers Madison’s approach to the “establishment” and “free exercise” clauses – protections from official government religions mandating one flavor of Protestantism over another and severely restricting private religious behavior. The idea that any sort of “wall” – metaphorical or otherwise – was ever intended to be erected between church and state was absurd, according to Rehnquist.

Aftermath

Many other states had similar laws on the books, and others have added them since, without serious constitutional challenge. A “moment of silence” is fine in public schools, as long as there’s no overtly expressed pressure to pray. There’s little to indicate that the 5 – 7 seconds of awkward silence typically beginning morning announcements actually accomplish anything in terms of mentally or emotionally preparing students for the school day, but effectiveness is not part of the “Lemon Test.” All it takes is a plausible assertion of valid secular goals.

Calm, focused students fit that requirement.

Hammurabi, King of Babylon (from “Have To” History)

April 22, 2020June 4, 2023 ~ Blue Cereal

Stuff You Don’t Really Want To Know (But For Some Reason Have To) About Hammurabi, King of Babylon…

Three Big Things:

1. Responsible for the best-known and arguably most influential set of legal codes in the ancient world. Key issue: they were written down and publicly posted.

2. Brought Mesopotamia together as a more-or-less united empire (this time with Babylon as the seat of central authority) for the first time since Sargon six centuries prior.

3. Seriously, the written law thing. It’s just huge. “An eye for an eye”? That was his. Innocent until proven guilty? Also his, although not phrased quite so smoothly. A chance for the accused to defend themselves? Punishment fitting the crime? Throwing people in rivers to see if they float? That’s Hammurabi, baby.

Background

Mesopotamia had been united under Sargon of Akkad around the 24th Century B.C. It held together for a century or so after his death, then fell back into a collection of various city-states, no doubt vying for power and influence, sometimes uniting against nomadic outsiders or other external threats and sometimes uniting with those outsiders against one another.

Hammurabi was the sixth king of Babylon, having assumed the throne from his unfortunately-named father, Sin-Muballit. They seem to have been Amorites, originally a tribe from western Syria and one of the groups most often mentioned in the Old Testament as both scary and deserving of slaughter whenever possible. Then again, records from this time period are fragmentary and the language maddeningly inconsistent, so a term like “Amorite” may have been more of a title or categorization than a specific ethnic group or family name. Like much from this era, the issue is cloaked in contradictory evidence and academic debate.

It can seriously get heated, in the right crowd… which is oddly awesome and tragic at the same time.

Hammurabi began his reign around 1800 B.C. and for several years remained fairly conservative. He excelled at the complexities of running a complex nation via correspondence and financing and bureaucracy, and had a personal focus on detail not always associated with absolute power. Hammurabi and his peeps restored some temples, completed some public works projects, and otherwise followed in daddy’s footsteps – until Babylonian territory was invaded by Elam (outsiders we don’t actually care about right now). That seems to have unleashed Hammurabi’s aggressive side, for he not only effectively repelled the invaders, he expanded his own domain in the process.

And he kept expanding it for the remainder of his rule.

Hammurabi was apparently quite the realpolitikster, making and breaking treaties and side deals with rapid but cold-hearted brilliance, thousands of years before “Machiavellian” was even a word. His army won more than they lost, which helped, and they could be merciless. One of Hammurabi’s trademark moves was to dam up major rivers before they reached enemy territory, then either starve the entire region or drown them by releasing the waters as an unstoppable flood.

Dude.

The Code of Hammurabi

But what he’s really remembered for are those laws. Two hundred and eighty-two “if X, then Y” statements, spoken with the authority of the gods and claiming to promote the best interests of the little people.

Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak… {They called me to} enlighten the land, to further the well-being of mankind…
When Marduk sent me to rule over men, to give the protection of right to the land, I did right and righteousness… and brought about the well-being of the oppressed…

Nowhere was it claimed he was humble or self-effacing.

2. If anyone bring an accusation against a man, and the accused go to the river and leap into the river, if he sink in the river his accuser shall take possession of his house. But if the river prove that the accused is not guilty, and he escape unhurt, then he who had brought the accusation shall be put to death, while he who leaped into the river shall take possession of the house that had belonged to his accuser.
3. If anyone bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death.
6. If anyone steal the property of a temple or of the court, he shall be put to death, and also the one who receives the stolen thing from him shall be put to death.
8. If anyone steal cattle or sheep, or an ass, or a pig or a goat, if it belong to a god or to the court, the thief shall pay thirtyfold therefor; if they belonged to a freed man of the king he shall pay tenfold; if the thief has nothing with which to pay he shall be put to death.

There was a lot of putting wrong-doers to death. If there were uncertainty, you might be thrown into the river to determine whether or not you were guilty – a pithy reminder that this was still a civilization built around sacred water and the whims of whichever gods controlled its rise and fall.

21. If anyone break a hole into a house (to enter and steal), he shall be put to death before that hole and be buried.
22. If anyone is committing a robbery and is caught, then he shall be put to death.
23. If the robber is not caught, then shall he who was robbed claim under oath the amount of his loss; then shall the community… in whose domain it was compensate him for the goods stolen.
24. If persons are stolen, then shall the community… pay one mina of silver to their relatives.

Those last two are interesting – the community responsibility bit. It’s unclear whether this idea was drawn from existing customs, or if it were perhaps intended to build a sense of mutual accountability.

A tiring number deal with contracts or other types of fiscal or personal liability. Others set specific daily rates for different sorts of labor. There’s guidance for handling accusations of adultery or other marital difficulties.

Some punishments varied by social class – poor people faced greater consequences for the same behavior than the rich, and harming the wealthy carried a greater penalty than harming the commoners. Still, overall, the code suggests the accused have a right to defend themselves before the law and that guilt must be well-established before punitive action is considered.

It’s a bit harsh on filial shortcomings – especially if you were adopted:

191. If a man, who had adopted a son and reared him, founded a household, and had children, wish to put this adopted son out, then this son shall not simply go his way. His adoptive father shall give him of his wealth one-third of a child’s portion, and then he may go. He shall not give him of the field, garden, and house.
192. If a son of a paramour or a prostitute say to his adoptive father or mother: “You are not my father, or my mother,” his tongue shall be cut off.
193. If the son of a paramour or a prostitute desire his father’s house, and desert his adoptive father and adoptive mother, and goes to his father’s house, then shall his eye be put out…
195. If a son strike his father, his hands shall be hewn off.

An Eye For An Eye

The section for which Hammurabi’s Law is most remembered, of course, goes something like this:

196. If a man put out the eye of another man, his eye shall be put out.
197. If he break another man’s bone, his bone shall be broken.
198. If he put out the eye of a freed man, or break the bone of a freed man, he shall pay one gold mina.
…
200. If a man knock out the teeth of his equal, his teeth shall be knocked out.
201. If he knock out the teeth of a freed man, he shall pay one-third of a gold mina.
202. If any one strike the body of a man higher in rank than he, he shall receive sixty blows with an ox-whip in public.

The “eye for an eye” system is known in legal circles as lex talionis – “retributive justice.” This and many of the other approaches taken by Hammurabi were later echoed in Old Testament law (see Exodus 21 in particular).

Periodic cultural melodrama over this chronology stems from a popular, but false, dichotomy between inspiration and incorporation; there’s nothing particularly suspicious about legal codes sharing common elements or social norms evolving from existing customs. Such reasoning would defrock the most sanctified sermon or inspirational song upon discovering the use of standard rhetorical devices or popular chord changes.

History rarely disproves anything meaningful about faith; faith rarely benefits by twisting history (or science, or math, or human nature) into something it’s not. It is supposedly the truth, after all, which sets one free.

Summary

Hammurabi’s laws were written at a time of expanding Babylonian empire. His kingdom was absorbing a variety of ethnic and tribal groups, speaking different languages, worshipping different gods, and rooted in a disparate tangle of customs and legal traditions. Many considered personal vengeance or ongoing “blood feuds” (think Hatfields and McCoys, or Swift and Perry) to be not only acceptable but honorably essential. Without some clear, firm, unifying set of expectations, as well as a clear message that the state (with a little help from the gods) would address any substantive issues itself – and that attempting to handle things on your own would be dealt with severely – Babylon might well have caved in on itself before outsiders even had a chance to undermine or overthrow it.

Maybe not every nation would flourish under such detailed and unbending rules, but it was most likely exactly what Hammurabi’s Babylon needed for peace and prosperity.