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NUMERO 15 - 26/07/2017

 Reasonableness in the jurisprudence of the US Supreme Court

The Lochner era “exerts a powerful hold over the American constitutional imagination as an example of the dangers of judicial review”, but also plays an important role in the “constitutional discourse outside of the United States”. Indeed, comparative scholars often look to it as an example of “judicial activism, understood as the constitutionalization of the political preferences of the judiciary”. Lochner refers to the famous case heard before the US Supreme Court in 1905, which is still synonymous with economic liberalism on the one hand, and constitutional crisis on the other. The Lochner case “provides a constitutional narrative” now relevant at a global level and, although it is usually cited as a negative example, “no one has to date produced a serious structured mechanical test that Lochner is unable to overcome”. The fact that it is part of the common heritage of public law and comparative law scholars justifies the choice of using it as an example to demonstrate how reasonableness has allowed the ideals and values of the interpreters of law to be introduced into American constitutionalism through the interpretation of the Supreme Court. So much so as to justify the identification of a liberal constitution and a democratic constitution (text remaining unchanged) in the history of the USA. Naturally, reasonableness is just one of the techniques that can be used in interpreting the constitution. Prior to 1870, for example, in US law the Supreme Court made use of other instruments like the natural law argument, as is evident in Calder v. Bull, or the principle of the contract clause, as interpreted by the Marshall Court, or the collective interest (goods affected with a public interest) of the Taney Court's case law. The rapid development (both economic and social) of American society, however, resulted in the growth of regulation and thus the need to identify new, suitable techniques of interpretation. Reasonableness thus acquired centrality in relation to a substantive reading of the due process clause, allowing the Supreme Court to examine the substance of legislative decisions, and opening up the field to what would be known as the Lochner era, whose law is largely the work of the Supreme Court presided over by Chief Justice Fuller. The Supreme Court employed the reasonableness test up until a liberal idea of society that put property first and gave way to the New Deal and, subsequently, to a new set of constitutional values. This opened up the doors to the introduction of new instruments of scrutiny and to the abandonment of a reasonableness test based on the clause of due process of law. Nowadays, the reasonableness test may be associated to the loose rational relation test, the least intrusive means of monitoring constitutional legitimacy used by the Supreme Court, which applies mainly to economic and social rights. But reasonableness, at least in the form it took in the early ’twenties of the last century, was abandoned. This is largely to do with the character of the Fuller Court that is explicitly based on the economic doctrine of laissez faire and the classical theory of the social contract. As such, by the time of transition marked by the New Deal, it turned out to be far too compromised to be of any use. In order to facilitate a reading of the considerations specifically dedicated to reasonableness during the Lochner era, a description of the case law of the Supreme Court between 1870 and 1937 will be provided and structured according to the matters with regard to which reasonableness was used, namely: taxation, regulation of labour relations and protection and antitrust law. This first section, purely descriptive in nature, will provide the basis for some conclusions necessary to highlight how reasonableness came to be the main technique for testing the legitimacy of the limitations imposed on constitutional rights and how it was employed to convey the majority ideals of the judges of the Supreme Court, and in particular those of Justices Peckham and Brewer. Next, a detailed analysis is provided of the Lochner judgment, which gave its name to this era and includes the dissenting opinion of Justice Holmes. The latter, indeed, rejected the idea that the unreasonableness of a provision derives from its conflict with the Constitution read as if it were based on a specific economic doctrine. This stance (also confirmed in subsequent dissenting opinions) would fuel progressivists’ criticisms of the Supreme Court of that period. Reasonableness as a vehicle of liberal ideals would operate up to the so-called settlement of 1937, when, now ideologically ‘compromised’, it would be set aside to give way to strict scrutiny... (segue)

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