In Defense of "Footnote Four": A Historical Analysis of the New Deal's Effect on Land Regulation in the U.S. Supreme Court

Article excerpt

At the turn of the nineteenth century, the U.S. Supreme Court established and reinforced numerous so-called "economic rights." Lochner v. New York--this period's paradigm case--held that the Fourteenth Amendment's Due Process Clause contained an implicit right to contract. (1) During the Lochner era, the Court invalidated almost 200 federal and state economic and labor regulations for interfering with the right to contract and for violating substantive due process. (2) In 1937, however, Justice Stone's famous "footnote four" in United States v. Carolene Products Co. (3) closed the coffin on Lochner. After Carolene Products, the Court stopped applying heightened scrutiny to economic legislation, and it began consciously protecting "discrete and insular minorities." (4) Though most would accept that footnote four greatly affected the Court's review of social legislation, some also see Carolene Products as ending an era of heightened protection for real-property rights. (5) This view is mistaken.

Though Carolene Products marked a dramatic shift in the Court's approach to social and labor legislation, it did not affect the Court's already deferential review of land regulation. And why would it? The Lochner Court did not review land regulations with the same heightened scrutiny as it did economic legislation. The Lochner Court deferred to local exercises of the police power to regulate health, safety, and morality. It rejected most landowner challenges to land regulations and applied a consistent standard of review that favored government regulators, striking down only those land regulations it deemed "clearly arbitrary." There was no need for the post-Carolene Products Court to lower the scrutiny of land regulation because, unlike its approach toward social legislation, the Lochner Court deferred to state and local governments in the area of land regulation.

A comparison of Lochner-era land-regulation cases with post-Carolene Products land-regulation cases reveals that the New Deal did not doctrinally relax the Court's review of land regulation. The Court continued to apply the Lochner-era test through the New Deal's jurisprudential realignment. In fact, beginning in the late 1970s, the Court's balancing test actually favored property-owner plaintiffs and raised the bar for land regulators relative to the Lochner Court's standard of review. This article's purpose is neither to exhaustively catalog land-regulation cases, nor to judge the propriety of the Court's decisions. Rather, its purpose is to correct the mistaken view that the New Deal and the accompanying shift in the Court's social-welfare jurisprudence affected the Court's approach to land-regulation cases.

Part I of this article explains the Lochner-era Supreme Court's standard of review through an analysis of land-regulation cases decided between 1909 and 1937. Part II describes the approach taken by the Court after Carolene Products, between 1937 and 1980, and demonstrates that the Court's approach did not become more government-friendly, but if anything, became more landowner-friendly. Part III concludes.

I

LAND REGULATION IN THE LOCHNER ERA

Philip Nichols' 1917 treatise on eminent domain demonstrates the broad scope of the Lochner-era police power. Of that era's police power, Nichols wrote, "[I]t is not confined to the suppression of what is offensive, disorderly or unsanitary, but extends to so dealing with the conditions which exist in a state as to bring out of them the greatest welfare of its people." (6) Nichols explained that the police power was defined by a reasonableness standard, which focused solely on the government's action--judicial scrutiny concentrated on the regulation's purpose, requiring only that it serve the general welfare. (7)

During the Lochner era, the Court did not analyze land-regulation cases as it does today. Then, the Court reviewed land regulations through the lens of the Fourteenth Amendment's Due Process Clause rather than the Fifth Amendment's Takings Clause. …