Bolling, Equal Protection, Due Process, and Lochnerphobia

By David E. Bernstein[1]

     In Brown v. Board of Education, the United States Supreme Court held that state and local school segregation laws violated  the Fourteenth Amendment’s Equal Protection Clause.  The same day, in Bolling v. Sharpe,[2] the Court invalidated de jure segregation in Washington, D.C.’s public schools under the Fifth Amendment’s Due Process Clause.  Fifty years later, Bolling is one of the Warren Court’s most controversial decisions. 

The Bolling Court stands accused of inventing the idea that due process includes a guarantee of equal protection equivalent to that of the Fourteenth Amendment’s Equal Protection Clause.  Bolling is especially infamous for the following dictum:  “In view of our decision [in Brown] that the Constitution prohibits the states from maintaining racially segregated public schools,” Chief Justice Earl Warren wrote, “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”  This dictum, considered alone, sounds very much like a concession that the Court could find no proper legal basis for its decision in Bolling, beyond the “unthinkability” of a contrary decision, especially given the Brown ruling.[3]

Yet the prominence given to the “unthinkable” dictum has obscured the fact that in the preceding three paragraphs of the Bolling opinion, Warren provided a more traditional “legal” rationale for the Court’s ruling:

We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.

Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect. As long ago as 1896, this Court declared the principle “that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race.” And in Buchanan v. Warley, the Court held that a statute which limited the right of a property owner to convey his property to a person of another race was, as an unreasonable discrimination, a denial of due process of law.

Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.


Thus, the opinion made the following points: first, that although the Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, the concepts of equal protection and due process both arise from the American ideal of fairness.  While not interchangeable, the phrases are not mutually exclusive, and the Court has previously recognized that unjustified discrimination may violate due process.  Second, classifications based on race “must be scrutinized with particular care” because they run contrary to American tradition.  And, third, forcing Blacks to attend segregated schools violates their liberty within the meaning of the Due Proce Clause, and is an arbitrary deprivation of liberty not justified by “any proper government objective.”

In subsequent opinions, the Supreme Court interpreted Bolling as an equal protection case,[4] and eventually held that the Fifth Amendment’s Due Process Clause contains an equal protection guarantee precisely equivalent to that of the Fourteenth Amendment’s Equal Protection Clause.[5]  However, as Larry Lessig has noted, a close reading of Bolling reveals that “[w]hat is significant about the actual opinion . . . is not that the Court found an ‘equal protection component’ to the Due Process Clause.  No such ‘component’ was ever ‘found.’”[6]

While dicta in Bolling states that the concept of due process clause overlaps to some extent with the concept of equal protection, the ultimate holding of the Court is based on the traditional due process concern that the government not engage in arbitrary deprivations of liberty.  As Justice David Souter has explained, Bolling concluded that the federal government had no legitimate government interest in requiring segregated education that could overcame Blacks’ contrary liberty interest not to be relegated to Jim Crow schools.[7]

            The only novelty in this opinion is the idea that forcing blacks to attend segregated schools infringed on a liberty right protected by the Fifth Amendment’s Due Process Clause.  Once the Court identified this liberty right, Brown—which failed to accord any weight to, or even mention, the defendant’s police power arguments in favor of segregation—made it obvious that the federal government could not justify school segregation as a valid exercise of the federal government’s exercise of sovereign authority in the District of Columbia.

            That Bolling was a traditional substantive due process[8] case relying on the “liberty” protected by the Fifth Amendment’s Due Process Clause is apparent from a close reading of Bolling, shorn of the baggage of later Supreme Court reinterpretation of Bolling as an equal protection decision.  But the correct interpretation of Bolling becomes even clearer if one consider the original, unpublished draft of Bolling circulated by Warrren.

Warren’s opinion tracks  the final opinion, until the section  following the opinion’s citation of Buchanan v. Warley.  The relevant section of the draft opinion is reprinted below.  Text common to the draft and final opinion is in italics, text that only appears in the draft opinion is in plain text, and text that only appears in the final opinion is in strikeout:

We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. Although equal protection has been the basis of most decisions involving racial discrimination, we have previously recognized that discrimination may also constitute a denial of due proces of law. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.

Unreasonable and arbitrary classifications may be a denial of due process of law.  Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect. As long ago as 1896, this Court declared the principle “that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race.”[9] Thus, And in Buchanan v. Warley, this Court held that a statute which limited the right of a property owner to convey his property to a person of another race was, as an unreasonable discrimination, a denial of due process of law.

The Court has applied similar reasoning to analogous situations in the field of education, the very subject now before us [citing the 1920s substantive due process cases Meyer v. Pierce and its companion case, Bartels v. Iowa; Pierce v. Society of Sisters; and Farrington v. Tokushige].Thus children and parents are deprived of the liberty protected by the Due Process Clause when the children are prohibited from pursuing certain courses, or from attending private schools or foregin-language schools.  Such prohibitions were found to be unreasonable, and unrelated to any legitimate governmental objective.  Just as a government may not impose arbitrary restrictions on the parent’s right to educate his child, the government must not impose arbitrary restrints on access to the education which the government itself provides.

Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint.  The essence of liberty is the Liberty under law extends to the full range of conduct which the individual is free to pursue., and it cannot be restricted except for a proper governmental objective. We have no hesitation in concluding that segregation of children in the public schools is a far greater restriction on their liberty than were the restrictions in the school casees discussed above.  Segregation in the public schools places the brand of inferiority on the minority group, saps them of their motivation to obtain an education, and thus hampers them throughout life [Citing Brown]. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on these children Negro children of the District of Columbia a burden that which constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.

Due process is not a static concept: “It is of the very nature of a free society to advance in its standards of what is deemed resonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights.” [quoting Wolf v. Colorado, 338 U.S. 25, 27]. In view of our decision  We have declared that the Constitution prohibits the states from maintaining racially segregated public schools.  It would be unthinkable that that the same Constitution would impose a lesser duty on the Federal Government should have a lesser duty to protect what, in our present circumstances, is a fundamental liberty.


This draft clarifies the fact that the primary basis for the Bolling decision was a substantive due process rationale, with discussion of the equal protection component of due process serving as mere dicta.  The final opinion removed some of language that supported the due process rationale without changing its substance, while adding nothing of substance to the equal protection dicta.

Part I of this Article reviews scholary criticism of Bolling.  With the exception of Larry Lessig,[10] legal scholars have not seriously addressed Bolling’s stated substantive due process rationale.  Rather, scholars criticize Bolling for purportedly holding that the Fifth Amendment’s Due Process Clause provides an equal protection guarantee equivalent to that of the Equal Protection Clause. To critics of the Warren Court, Bolling is an example of judicial activism run amok, with the Warren Court using the Due Process Clause to avoid reaching a constitutionally mandated result that considered “unthinkable” for extra-legal reasons.  By contrast, scholars more sympathetic to Warren Court jurisprudence embrace the result in Bolling, but reject, or at least refuse to endorse, its reliance on the Fifth Amendment’s Due Process Clause.

As we shall see in Part II of this Article, there was in fact precedent far stronger than the rather lame precedents cited by the Court,[11] supporting Bolling’s dicta that due process and equal protection limits on government’s power to discriminate overlap to some extent.  The historical relationship between due process and equal protection is discussed in Part II of this Article.

More important, critics fail to grapple with Bolling’s holding that public school segregation was an arbitrary violation of Black student’s due process liberty interest in pursuing their education. Strong precedents from the 1910s and 1920s supported Bolling’s conclusion that due process of law prohibited the government from classifying based on race or sex when doing so resulted in a violation of liberty or property rights, and the classification in question was not based on any inherent differences between the groups classifed.

Bolling, in fact, referenced a 1917 precedent directly on point—Buchanan v. Warley.[12]  Buchanan invalidated a residential segregation ordinance under the Fourteenth Amendment’s Due Process Clause as a  deprivation of liberty and property not justified by the state’s claimed police power interests in keeping the races separate.  Lochner era precedent also supported Bolling’s implicit conclusion that violation of liberty rights protected by the Due Process Clause could not be justified by appeals to prejudice against, or fear of, minority groups.  Once the Court identified a property or liberty interest protected by the Constitution’s guarantee of due process of law, a deprivation of this liberty could not be justified by mere racism, sexism, or hostility toward minorities.[13]  However, as discussed in Part III of this article, the Court failed to cite these precedents because of Lochnerphobia—the Court did not want to seen as endorsing or reviving the substantive due process jurisprudence of the Lochner era.

            I.          Scholarly Criticism of Bolling

            As noted previously, scholarly criticism of Bolling typically faults the opinion’s purported discovery of an “equal protection component” to the Fifth Amendment’s Due Process Clause, or criticizes the Court for its “unthinkable” dictum.  Critics have not seriously addressed the Court’s underlying rationale for its decision—that Black children forced to attend segregated schools were being deprived of liberty without due process, a deprivation not justified by any valid police power rationale.

            Critics of the Warren Court’s alleged judicial activism have been especially scathing in their criticism of Bolling.[14]  Raoul Berger states that the so-called “equal protection tradition” of the Fifth Amendment’s Due Process Clause was “born” in Bolling.[15]  But he regards the idea that the Due Process Clause contains an equal protection guarantee as “quite untenable.”[16]  First, he argues that “the conception of due process constitutionalized in 1789 could not contain an as yet unknown component.”[17] Second, Berger remarks that “the framers of the fourteenth amendment added to due process an equal protection clause, a considered judgment that the due process clause had no element of equal protection.”[18]

Similarly, in his book The Tempting of America, Bork sharply criticizes Bolling as  “social engineering from the bench,” a mistaken interpretation of due process on par with Dred Scott and Lochner.[19]  Bork incorrectly states that the Bolling Court concluded that the Fifth Amendment’s Due Process Clause “included the same equal protection concept” as the Fourteenth Amendment’s Equal Protection Clause,[20] and adds, also incorrectly, that  “no precedent or history” supported such a conclusion.[21]

Michael McConnell, meanwhile, concludes that “[t]he suggestion that the Due Process Clause of the Fifth Amendment prohibits segregation of public facilities is without foundation.”[22] McConnell finds it not just “thinkable” but highly plausible that the framers of the Fourteenth Amendment sought to put equal protection restrictions on the states that they did not seek to put on the federal government.  After all, the Radical Republicans who drafted and enacted the amendment felt secure in their firm control of Congress and thus federal legislative power, and also evinced a strong distrust of the recently rebellious southern states.

Lino Graglia is perhaps the most scathing critic of the Court’s decision in Bolling.[23]  Graglia asserts that Bolling shows that activist Justices ignore the text of the Constitution to achieve desired political results.  He writes that “everyone knows, or thinks he knows, that school racial segregation was held unconstitutional in Brown because the Court found it prohibited by the Equal Protection Clause of the Fourteenth Amendment.” He points out, however, that “the Equal Protection Clause was not necessary to the decision; that is, the same result could and would have been reached in its absence.”

To prove his thesis, Graglia points to Bolling:

On the same day the Court decided Brown, it also decided Bolling v. Sharpe, a challenge to school racial segregation by federal law in the District of Columbia. Because the Equal Protection Clause occurs only in the Fourteenth Amendment, which does not apply to the federal government, it was not available for the case. What difference did its absence make in the result reached? None at all; school segregation was found no less constitutionally prohibited in the District of Columbia. . . . This time, however, segregation was found to violate the Due Process Clause of the Fifth Amendment, which does apply to the federal government. In other words, we are asked to believe that a constitutional provision adopted in 1791 as part of a Constitution that explicitly recognized and protected slavery was meant to prohibit school racial segregation. If the Due Process Clause of the Fifth Amendment did not exist, the Court would simply have had to rely, with equal validity, on some other constitutional provision, perhaps the provision prohibiting discrimination among seaports.

            Lucas Powe, though not a consistent critic of the Warren Court, finds the Court’s reliance on the Fifth Amendment’s Due Process Clause in Bolling “stunning.”[24]  Powe states that Warren could have shown that the due process had a strong equal protection component prior to the Civil War “but this had been lost in history and Warren did not rediscover it.  He just asserted the point.”[25] According to Powe, the Supreme Court had never before found that the due process and equal protection clauses banned similar actions.[26]

            Other legal scholars, generally those more sympathetic to the Warren Court and its egalitarian jurisprudence, support the result in Bolling, but none seems to have endorsed the Court’s due process reasoning.  Indeed, several prominent scholars have harshly criticized Bolling, often misinterpreting Bolling as an equal protection case.  Sandy Levinson writes that “there is no satisfactory theory ... that explains the imposition on the federal government . . . of the equal protection norm.”[27] John Hart Ely calls the Bolling decision “gibberish both syntactically and historically.”[28] Thomas Grey cites Bolling an example of “when the Court treats the words of the Constitution as essentially irrelevant to its decision.”[29]

Frank Michelman notes that “[i]t may well be true that the original American constitutional conception of due process of law reflected a natural right tradition—‘a higher law background,’ as it has been called—containing a requirement of formal generality in law and formal equality before the law.”[30]  However, Michelman adds that antebellum constitutional understanding cut from this tradition would not have precluded de jure segregation.[31]  Lawrence Sager, meanhile, is greatly troubled by the “baldly prochonistic doctrine that the due process clause of the fifth amendment incorporates the principles which underlie the equal protection clause (ratified roughly one hundred years later).”[32] Akhil Amar argues that the words “due process” in the Fifth Amendment mean the same thing as the words “due process” in the Fourteenth Amendment, which in turn must mean something different than the words “equal protection” in the Fourteenth Amendment.[33]

Scholars seeking to justify the result in Bolling instead rely on their own creative constitutional reasoning.  Jack Balkin argues that a complex combination of structural, textual, and historical arguments justifies the result in Bolling.[34]  Balkin’s structural argument is that America adopted a national post-Civil War commitment to equality that would be undermined if the federal government could sabtoage guarantees of equality that bound the states.  His textual argument relies on the Citizenship Claus of the Fourteenth Amendment, which he argues “stands for the proposition that neither the states nor the federal government can create more than one class of citizens.”  Balkin’s historical argument rests on the Privileges or Immunities Clause of the Fourteenth Amendment, which guaranteed blacks the rights of national citizenship.[35]

Drew Days also asserts that the citizenship clause of the Fourteenth Amendment supports the result in Bolling. [36]  Michelman rests his defense of the result in Bolling on unwritten constitutional principle found in neither the history nor the text of the Constitution.[37]  Amar relies on the Citizenship Clause, the Bill of Atatinder Clause, and the Titles of Nobility Clause to support the result in Bolling.[38]  Like Balkin, Bruce Ackerman argues that integrated public school education in the District of Columbia was a privilege or immunity of national citizenship, and, like Balkin and Days, justifies Bolling on the basis of the Citizenship Clause of the Fourteenth Amendment.[39]

John Hart Ely, writing twenty or so years after his initial condemnation of Bolling, argues that “it was the office of the Equal Protection Clause unequivocally to apply to the states a command of equality of the sort that the original framers, and this Court among others, had already acknowledged in various contexts to be constitutionally aplicable to the federal government.” Even Ely, however, is unwilling to endorse the Bolling Court’s Due Process Clause argument.  He neglects the view that Bolling was an “arbitrary deprivation of liberty” case rather than an equal protection case, and expressly passes on the question of “whether the term ‘due process’ can responsibly to contain” a “command of equality” similar to the Fourteenth Amendment’s Equal Protection Clause.  Instead, to support Bolling’s outcome, Ely relies on the Declaration of Independence, various early nineteenth century cases, and especially the Ninth Amendment. [40]

Thus, legal scholars almost completely ignore Bolling’s holding that substantive due process prohibits the Federal Government from arbitrarily restricting Blacks to segregated public schools.  And to the extent that they see Bolling as an equal protection case, they fail to consider whether there was a basis in precedent for the notion that the Fifth Amendment’s Due Process Clause creates any limits on discriminatory legislation.  The historical relationship between due process and antidiscrimination concerns is discussed in the next section of this Article.

II.         Due Process and Equal Protection

The idea that due process considerations limited government’s power to discriminate stretched back to the early years of the American republic.[41]  The Due Process Clause of the Fourteenth Amendment, to the extent it was thought to have “substance” at all, was initially thought to include, and perhaps even be limited to a prohibition on discriminatory “class” legislation.[42]  Several state courts explicitly invalidated discriminatory legislation based solely on due process considerations.[43] 

During the Lochner era, litigants consistently asserted that the Fifth Amendment’s Due Process Clause included an equal protection component, with the Court initially remaining agnostic on the matter.  By 1921, the Court acknowledged in dicta that the concept of due process contained in the Fifth and Fourteenth Amendments included an equal protection component, albeit a weaker one than that contained in the Fourteenth Amendment’s Equal Protection Clause.  And in 1923 in Adkins v. Children’s Hospital,[44] the Court invalidated a District of Columbia law mandated minimum wages for women in part because of equality concerns raised under the Fifth Amendment’s Due Process Clause.

Meanwhile, Buchanan v. Warley suggested that once a court identified a recognized due process liberty or property interest invaded by a statute or government policy, that law or policy could not be defended under the police power based on a discriminatory rationale.   This understanding of the equalitarian limits on the assertion of the police power to justify infringements on rights protected by due proces was reiterated in Adkins v. Children’s Hospital, where the Court held that outdated notions of women’s competence could not justify a sex-based minimum wage law.

A.     The Pre-Lochner Understanding of Due Process Limits on Discrimination

As noted previously, legal scholars have harshly criticized the Bolling Court’s proclamation in Bolling that “unjustified discrimination may violate due process.” In particular, scholars claim that the idea that constitutional due process protections included limitations on discriminatory activitiy by government was unprecedented,[45] “baldly prochonistic,”[46]  and contrary to obvious interpretive norms.[47]

In fact, a long tradition in American thought held that for legislation to be considered “the law of the land,” and thus consistent with due process, it must be a “general public law, binding upon every member of the community.”[48]  Meanwhile, “every partial, or private law . . . is unconstitutional and void.”[49]  By the postbellum period, “partial” or “unequal” legislation was usually referred to as “class legislation.”[50]  While some authors have closely associated the concept of class legislation with the modern concept of special interest legislation,[51] in practice, by the late ninenteenth century class legislation was primarily legislation that contained arbitrary classifications.[52]

In the period just before the Court adopted the liberty of contract doctrine, Supreme Court precedent suggested that when states asserted they were acting within their police power, due process protection included, or perhaps was even limited to, a ban on class legislation.  The equal protection clause, of course, also prohibited unequal legislation, and did so more specifically.[53]  Thus, while the Due Process Clause protected procedural rights from state interference, its substantive component overlapped with the Equal Protection Clause.

Indeed, in Dent v. West Virginia,[54] the Supreme Court even declared that the absence of arbitrary classification bars both equal protection and due process claims against regulatory legislation.  The Court stated, “legislation is not open to the charge one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates.”[55]  More often cited was dictum from Leeper v. Texas,[56] stating that “[d]ue process is so secured by laws operating on all alike,” and “not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice.”[57]  However, unlike some state courts,[58] the  Supreme Court rarely used due process consideration to invalidate class legislation, relying instead on the Equal Protection Clause.[59]

B.         The Unsettled State of Due Process Limits on Discrimination During the Lochner Era

By the time Lochner v. New York[60] was decided in 1905, the Supreme Court had retreated from its view in Dent v. West Virginia that a law that was not class legislation could not violate the Due Process Clause.  In a series of decisions in the 1890s, the Court, usually speaking through Justice Brewer, Harlan, or Peckham, declared that “liberty of contract,” along with other vaguely defined fundamental liberties,[61] were protected against arbitrary legislation by the Due Process Clause.[62] In Lochner itself, the Court ignored the class legislation argument that Lochner’s brief relied upon.  Instead, the Court invoked a liberty of contract argument.[63] It was Lochner’s substitution of fundamental rights analysis for class legislation analysis that allowed the 1920s Supreme Court to broaden due process protection of liberty interests to noneconomic matters in cases such as Pierce v. Society of Sisters[64] and Gitlow v. New York.[65]

Once due process became the basis for protection of fundamental rights in the late 1890s, the Court—which had previously stated that the Due Process Clause’s only substantive protection was equality—suggested that the equality component of due process was minimal, if it existed at all.  In District of Columbia v. Brooke,[66] for example, the plaintiff challenged a D.C. law that required resident owners of property to connect their property to a drainage system on penalty of criminal punishment, while merely assessing nonresident owners the cost of having the city do the work or them.  The Court stated, “The defendant in error asserts this discrimination and argues its consequences at some length, but does not refer to any provision of the Constitution of the United States which prohibits Congress from enacting laws which discriminate in their operation between persons or things.” A commentator wrote that this language intimates that “Congress may enact class legislation” and asserting that “this opinion would seem to be correct.”[67]

This commentator, however, ignored the Brooke Court’s caveat. The Court added that “the question of the power of Congress, broadly considered, to discriminate in its legislation, is not necessary to decide.” Even if “such power is expressly or impliedly prohibited,” the Court state, that prohibition “cannot be stricter or more extensive” than the scope of the Fourteenth Amendment Equal Protection Clause upon the states, and this law would be valid if enacted by a state.

Indeed, plaintiffs that challenged the constitutionality of federal legislation often argued that the Due Process Clause placed similar or equivalent restrictions on the federal government as the Equal Protection Clause put on the states.  The Court, while sometimes entertaining such claims, was careful not to endorse this position.  In McCray v. United States,[68] for example, the Court stated that “[c]onceding, merely for  the sake of argument, that the Due Process Clause of the 5th Amendment would avoid an exertion of the taxing power which, without any basis for classification, arbitrarily taxed one article and excluded an article of the same class, such concession would be wholly inapposite to the case in hand.”   In United States v. Heinze,[69] the Court assumed without deciding “that congress may not discriminate in its legislation,” but noted that even with that assumption, Congress still has the general power to make reasonable classifications in legislation.  In the Second Employers’ Liability Cases,[70] the Court concluded that a law that imposed liability only on interstate carriers by railroad was constitutional “[e]ven if it be assumed that that clause is equivalent to the ‘equal protection of the laws’ clause of the 14th Amendment, which is the most that can be claimed for it here.”[71]

Lower federal courts were similarly circumspect.  One court stated only that violations of equal protection principles “might” violate the Fifth Amendment’s Due Process Clause.[72]  Two other courts assumed arguendo that the Due Process Clause of the Fifth Amendment is broad enough to prohibit discriminatory federal legislation, but then ruled against the claimants.[73]  At least one federal court, however, explicitly found an equality guarantee in the Fifth Amendment Due Process Clause.  A 1911 circuit court opinion stated that  the”due process of law” guaranteed by the Fifth Amendment “implies the administration of equal laws according to established rules by competent tribunals.”[74]

Meanwhile, with the arguable exception of cases involving what today we would call “regulatory takings” cases, decided as property and not liberty cases,[75] the United States Supreme Court refused to rely solely on the Fifth are Fourteenth Amendment Due Process clauses alone when invalidating legislation as “class,” “unequal,” “special,” “partial,” or “discriminatory” legislation.[76] Indeed, most Supreme Court discussions of class legislation involved only the Fourteenth Amendment’s Equal Protection Clause, even in cases in which due process claims were raised.[77] For example, the Court found that a law creating special, more lenient rules for torts committed by striking workers violated the fundamental rights of employers under the Due Process Clause. The Court then found thatthe rules in question also constituted illicit class legislation under the Equal Protection Clause.[78]

Nevertheless, treatise writers insisted that due process contained an equal protection component.  Hannis Taylor, author of 1917s’s Due Process of Law and The Equal Protection of the Laws, wrote that the idea that “the generality and equality of laws, as a necessary part of due process, is purely an American creation.”[79]  He added that these were, in fact, elements inherent in due process in its American form; they existed long before the adoption of the Fourthenth Amendment, and were therefore something independent of the guaranty that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’”[80]

Five years later, Charles K. Burdick, wrote that the Due Process Clause established “as a standard those principles of liberty and justice which lie at the foundation of our Anglo-Saxon institutions.”[81]  He added:


No federal legislation has as yet been declared lacking in due process because it denied the equal protection of the laws. On the other hand the Supreme Court has entertained and given serious consideration to attacks upon federal legislation based upon the ground that, because of unreasonable classification, it denied the protection of reasonably equal laws.... It seems, therefore, that the conception of due process does exclude legislation which inflicts inequality of burden, which is clearly arbitrary, and without any basis in reason.[82]


Ultimately, the Supreme Court did not completely abandon the equality component of due process. Rather, the Court limited due process’s potency and scope, so that the Equal Protection Clause remained the primary barrier to class legislation, with due process playing only a subsidiary role, providing only a “mere minimum” of protection against unequal laws. Chief Justice Taft explained in Truax v. Raich 1921:

The [equal protection] clause is associated in the amendment with the Due Process Clause and it is customary to consider them together. It may be that they overlap, that a violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not coterminous. The Due Process Clause brought down from Magna Charta was found in the early state constitutions and later in the Fifth Amendment to the federal Constitution as a limitation upon the executive, legislative and judicial powers of the federal government, while the equality clause does not appear in the Fifth Amendment and so does not apply to congressional legislation. The Due Process Clause requires that every man shall have the protection of his day in court, and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. It, of course, tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty, and property, which the Congress or the Legislature may not withhold. Our whole system of law is predicated on the general fundamental principle of equality of application of the law. ‘All men are equal before the law,’ ‘This is a government of laws and not of men,’ ‘No man is above the law,’ are all maxims showing the spirit in which Legislatures, executives and courts are expected to make, execute and apply laws. But the framers and adopters of this amendment were not content to depend on a mere minimum secured by the Due Process Clause, or upon the spirit of equality which might not be insisted on by local public opinion. They therefore embodied that spirit in a specific guaranty. [83]

That same year, in La Belle Iron Works v. United States,[84] the Court, while noting that the Fifth Amendment has no equal protection clause, suggested that some more flexible limits are placed on unequal taxation by the “more general requirement of due process of law in taxation.”[85]

The equal protection component of due process also played a significant role in one of the most controversial cases of the Lochner era, Adkins v. Children’s Hospital.[86]  In Adkins, the Court held that a federally-mandated minimum wage for women in the District of Columbia violated the Fifth Amendment’s Due Process Clause.  Justice Sutherland, writing for the Court, argued that in regulating wages, the law violated liberty of contract without a proper police power rationale,[87] a traditional due process concern.  Other rationales provided by Sutherland, however, seem closer to traditional equal protection analysis, though Sutherland couched these concerns in terms of the statute’s aribtrariness, as opposed to discrimination per se.  First, Sutherland suggested that the most constitutionally suspect aspect of the minimum wage law in question was that it placed an arbitrary, unfair burden on a particular class, employers, who should not be expected to bear the costs of supporting employees who lacked the skills to earn a better wage. The Court also suggested that the law contained arbitrary classifications because it purported to provide a minimum living wage for women, yet assigned different wages to women in different occupations, and did not take into account the disparate needs of different women.[88]

C.        The Equality Component of Due Process as a Limit on Police Power Rationales for Violations of Individual Rights

In practice, with the exception of the odd ambiguous case arising under federal law such as Adkins, while the Equal Protection Clause prohibited all discriminatory legislation that did not have a valid police power justification, due process only entered the equality picture when a legal classification infringed on a liberty or property right protected recognized by the Court.  Once the Court found such an infringement, mere hostility against the group negatively affected by the classification could not justify the infringement.  Moreover, even government ends considered legitimate could not justify the infringement if the means chosen created too great a burden on liberty or property rights, if there was not a tight means-ends fit.


            This line of reasoning seems to have originated in Justice John Marshall Harlan’s dissent in Plessy v. Ferguson,[89] though Harlan did not explicitly rely on the Due Process Clause.  Harlan’s opinion is often interpreted as staing that racial classifications are always invalid under the Equal Protection Clause, but it says no such thing.  Rather, Harlan argued that the railroad segregation law in question violated the “personal liberty” of black and white citizens to share a railroad car if they so choose:

It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of commodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute, is that it interferes with the personal freedom of citizens. ‘Personal liberty,’ it has been well said, ‘consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever places one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.’ 1 Bl. Comm. *134. If a white man and a black man choose to occupy the same public conveyance on a public hig hway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.[90]

Harlan then argued that infringement on this liberty cannot be justified by a desire to maintain white supremacy.[91]

            Twelve years later, Harlan authored a similar dissent in Berea College v. Kentucky,[92] arguing that mandatory segregation in private schools violated liberty rights without a valid police power purpose:

The capacity to impart instruction to others is given by the Almighty for beneficent purposes; and its use may not be forbidden or interfered with by government,–certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety. The right to impart instruction, harmless in itself or beneficial to those who receive it, is a substantial right of property,–especially, where the services are rendered for compensation. But even if such right be not strictly a property right, it is, beyond question, part of one’s liberty as guaranteed against hostile state action by the Constitution of the United States. ... Have we become so inoculated with prejudice of race than an American government, professedly based on the principles of freedom, and charged with the protection of all citizens alike, can make distinctions between such citizens in the matter of their voluntary meeting for innocent purposes, simply because of their respective races?

The majority evaded Harlan’s argument by holding that the law was justified not as a police power measure, but as a modification of Berea College’s state corporate charter.[93]

Harlan’s line of reasoning, however, was implicitly adopted in the 1917 case of Buchanan v. Warley.  Some scholars have portrayed Buchanan as an Equal Protection Clause case, but the Equal Protection Clause never appears in the opinion, even though it was explicitly relied upon in the appellants’ briefs.[94]  The Court instead relied on the plaintiff’s alternative argument, that the statute infringed on the Due Process Clause’s protection of property.  Noting this reliance, some scholars have portrayed Buchanan as a pure property rights case, divorced from any concerns for equality.[95]  A close reading of the case belies this interpretation as well.[96]

The Court relied on the right to alienate property as the basis of its holding in Buchanan, but equality concerns came into play as well.  The question before the Court was whether the law infringed on this right for a valid police power purpose.[97]  After recounting the post-Civil War statutory and constitutional attempts to protect the rights of African Americans, the Court concluded that “[c]olored persons are citizens of the United States and have the right to purchase property and enjoy and use the same without laws discriminating against them solely on account of color.”[98]  The state’s “attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the state, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law.”[99]

The Court specifically rejected each of Kentucky’s claimed police power rationales for upholding the law. First, the Court dismissed the argument that existing “race hostility” was an appropriate rationale for narrowing the scope of citizens’ constitutional rights. The Court also rejected the argument that the segregation law came within the police power because it would promote the public peace by preventing race conflict. While the Court acknowledged that this was a desirable goal, it could not be accomplished “by laws or ordinances which deny rights created or protected by the Federal Constitution.”

The Court added that a residential segregation law could not be justified as promoting the “maintenance of the purity of the races.” The Court noted that the law did not directly prohibit the “amalgamation of the races.” The law did not even prohibit African Americans from working in white households. Rather, the right at issue, according to the Court, was “the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person.”

Finally, the Court spurned the claim that the law was necessary to prevent the depreciation in the value of property owned by white people when African Americans became their neighbors.  The Court noted that property owned by undesirable white people or used in legal but offensive ways could similarly depreciate property. The Court implied that African Americans had to be treated as rights-bearing individuals and not as members of a subordinate class. The Court reaffirmed Buchanan’s holding in 1927[100] and 1930.[101]

            Six years after Buchanan, in Adkins v. Children’s Hospital[102] the Court invalidated a minimum wage law for women using an analogous line of reasoning.  In Buchanan, the Court had identified the right to acquire and alienate property as an interest protected by the Due Process Clause.  In Adkins, the Court identified liberty of contract as a liberty interest protected by the Due Process Clause.  In Buchanan, the Court held that denial of property rights for African Americans could not be based on weak race-related police power rationales.  In Adkins, the Court held that women could not be denied liberty of contract based solely on weak gender-related police power rationales.

The government in Adkins asserted that the minimum wage law was necessary to preserve women worker’s “good health and morals.”  Sutherland wrote that women were, after passage of the Nineteenth Amendment, fully equal citizens, which in turn created a presumption that laws subjecting women to special disabilities or privileges are unconstitutional.[103]  He wrote, “while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances.”[104]         

Also in 1923, in Meyer v. Nebraska, the Supreme Court invalidated as a violation of the Fourteenth Amendment’s Due Process Clause a Nebraska law banning the teaching of foreign languages to schoolchildren.  The Court recognized a liberty interest in parents providing an education for their children, and found that the law infringed on that interest without a proper police power rationale.  As Robert Post notes, Meyer built on the Lochner line of cases but “resolutely refuses to confine that realm [of liberty] to mere matters of economic exchange. This refusal is particularly striking because the [opinion’s] assertions [of broad liberty rights] are supported only by the citation of a long string of substantive due process decisions dealing with specifically economic regulation, ranging from Lochner itself to Adkins v. Children’s Hospital.”[105]

The Meyer law had been motivated by nativist hysteria attendant to World War I, and the state claimed the following police power justifications for the law:


the purpose of the legislation was to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals, and ‘that the English language should be and become the mother tongue of all children reared in this state.’ It is also affirmed that the foreign born population is very large, that certain communities commonly use foreign words, follow foreign leaders, move in a foreign atmosphere, and that the children are thereby hindered from becoming citizens of the most useful type and the public safety is imperiled.

The Court, while acknowledging the importance of ensuring that children acquireEnglish proficiency, rejected the none-too-subtle discriminatory impetus behind the law.  The Court concluded that “the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state.”

            Two years later, in Pierce v. Society of Sisters,[106] the Court invalidated an Oregon law inspired by anti-Catholic sentiment that prohibited private school education.  The Court reasserted the right of parents to direct their children’s education, and completely ignored the state’s asserted police power interest in mandating that children be educated in a public school “melting pot” that would create a homogenous student body.[107]

                The Court faced a similar issue in 1927 in Farrington v. Tokushige.  This case involved a challenge to a law designed to shut down Japanese-language schools in the federal territory of Hawaii.  The government claimed that the law was necessary because Hawaii had “a large Japanese population,” and that “the Japanese do not readily assimilate with other races; that they still adhere to their own ideals and customs, and are still loyal to their emperor.”[108]  The Supreme Court acknowledged what it called “the grave problems incident to the large alien population of the Hawaiian Islands.”  However, the Court concluded that “[t]he Japanese parent has the right to direct the education of his own child without unreasonable restrictions; the Constitution protects him as well as those who speak another tongue.”

                Thus, by the late 1920s,  the Court had established that once it identified a due process liberty interest, the government could not justify legislative interference with that interest by appealing to prejudice against, or stereotypes about, the particular “minority” group the legislation targeted. Like Bolling, two of these precedents--Adkins and Tokushige--arose under the Fifth Amendment’s Due Process Clause. 

However, by the time Bolling v. Sharpe was decided in 1954, these Lochner era precedents were moribund because of the Court’s rejection of Lochnerian jurisprudence in the late 1930s.  The Court explicitly overruled Adkins in 1937,[109] and the following year reinterpreted Meyer, Pierce, and Tokushige as opinions protecting minority nationalities and religions from discriminatory legislation,[110] rather than as substantive due process liberty opinions holding that discriminatory impulses are not valid police power interests justifying infringement on liberty.  Similarly, the Court in Shelley v. Kramer[111] favorably cited Buchanan v. Warley, but obscured the fact that Buchanan was a substantive due process case and not an equal protection case.

            Chief Justice Warren, writing for the Bolling Court, faced two obvious choices in justifying its Fifth Amendment holding.   First, Warren could have issued an opinion expressly relying on an equal protecton component of due process.[112]  Instead, Warren relegated the idea that protections provided by the due Process Clause overlap with those provided by the Equal Protection Clause to dicta.[113]

Second, the Court could have relied explicitly on the substantive due process jurisprudence of the 1910s and 1920s, adding the right to attend (or send one’s child to) a non-segregated public choice to the educational liberty rights identified in Meyer, Pierce, and Tokushige.  Instead, Warren ignored all of the relevant substantive due process precedents except for Buchanan v. Warley.  As a result, the Bolling opinion seems incoherent, a cross between a half-hearted equal protection opinion and an inscrutable due process opinion. 

However, as shown in the Introduction to this Article, Warren originally drafted a far more coherent substantive due process opinion, citing Meyer, Pierce, and Tokushige.  As discussed below in Part III, he modified the opinion to avoid antagonizing his colleagues by rescusitating the Lochnerian substantive due process civil liberties opinions of the 1920s.

III. Bolling and Lochnerphobia

Warren’s original draft of the Bolling opinion[114] relied on the idea that the right to pursue an education (or to educate one’s children) was a fundamental liberty, a holding amply supported not only by the holdings of Meyer, Pierce, and Tokushige, but by dictum in Meyer and Pierce stating that liberty interests protected by the Due Process Clause include the “right to acquire useful knowledge.”[115] While Meyer and Pierce were Fourteenth Amendment due process cases, Tokushige relied on those cases in interpreting the Fifth Amendment’s Due Process Clause.

Warren did not contend that states are obligated to provide public education.  Rather, once the right to educational liberty was recognized, it followed that just “as a government may not impose arbitrary restrictions on the parent’s right to educate his child, the government must not impose arbitrary restraints on access to the education which the government itself provides.”[116] And Brown established that segregation based on notions of white supremacy was an arbitrary restraint on public school education.  

            Exactly why Warren dropped the initial opinion’s reliance on the 1920s precedents is unclear, though it very likely was a result of one or more of his colleague’s discomfort with relying on Lochnerian due process opinions.  Some evidence suggests that Justice Hugo Black strongly objected to Warren’s citation of these opinions, and more generally to Warren’s reliance on an explicit liberty interest in educational freedom.[117] Two decades after Bolling, Justice Douglas vaguely recalled that Black had prevailed on Warren to change the opinion.[118]  If so, this would be consistent with Black’s general attitude toward “substantive due process.”  Black, for example, criticized the Court’s reliance on Meyer and Pierce in Griswold v. Connecticut.  In the course of excoriating the Court for relying on those opinions’ “natural law due process philosophy,” Black claimed that Bolling “merely recognized what had been the understanding from the beginning of the country ... that the whole Bill of Rights, including the Due Process Clause of the Fifth Amendment, was a guarantee that all persons would receive equal treatment under the law.”[119]         

Justice Felix Frankfurter may also have objected to the inclusion of favorable citation to Meyer and Pierce, and Frankfurter “almost certainly would have made his objections known to Warren.”[120]  In 1944, Frankfurter refused to join the Court’s opinion in Prince v. Massachusetts because it favorably cited Meyer and Pierce.  He argued that Justice Holmes’ dissent in Meyer was correct, and that “I shall turn out to be a bad prophet indeed if this Court will not come to rue the implications of Pierce v. Society of Sisters.[121] Given Warren’s desire that the desegregation opinions be unanimous to help sway public opinion,[122] objections by Black, Frankfurter, or other Justices would have been sufficient to persuade him to eliminate references to Pierce and Meyer.

While the Justices who objected to Warren’s original opinion dissuaded him from relying on Lochner era due process opinions, the Bolling opinion still concluded that segregation violated liberty interests protected by the Due Process Clause.  Recall that the actual holding of Bolling is that “[s]egregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.” The Bolling Court, then, relied on a due process argument, but failed to identify precisely what liberty interest was involved and to cite relevant Lochner era opinions.  The due process argument therefore lacks coherence, and seems poorly reasoned.[123] 

Indeed, the Court’s substantive due process ruling was so watered down and cryptic that, as we have seen,[124] Black later claimed, contrary to the evidence,[125] that Bolling was actually (and solely) an equal protection case.  The Court itself, perhaps unable to decipher Warren’s cryptic final opinion, later adopted that interpretation of Bolling.  A less Lochnerphobic Court would have made it clearer that Bolling was not an equal protection case but actually, like Buchanan v. Warley, a due process case holding that a violation of due process rights via racial classification requires a strong, nondiscriminatory police  power justification. 

Indeed, Warren’s draft due process opinion arguably made a stronger case for the unconstitutionality of racial segregation under the Fifth Amendment’s Due Process Clause than the Court’s opinion in Brown made for the unconstitutionality of racial segregation under the Fourteenth Amendment’s Equal Protection Clause.  For example, the draft Bolling opinion logically followed from existing precedents like Buchanan, Meyer, and Tokushige, while Brown required the Court to reverse Plessy.

            The Court’s Lochnerphobia weakened Bolling in other ways as well.  Even Warren’s draft opinion remains vulnerable to the charge that it’s absurd to think that the Fifth Amendment’s Due Process Clause--enacted at a time when the Federal Government enforced the fugitive slave clause, and held in Dred Scott v. Sandford to protect slaveowners property rights in their slaves--could be interpreted to ban segregated schools.[126]  Here Warren could have sought help from Adkins v. Children’s Hospital, and authored a paragraph along the following lines:

In Adkins v. Childrens Hospital, we considered the issue of whether women could still be presumptively be considered to have lesser rights under the Fourteenth Amendment than have men, a position that would have been consistent with the views of the Framers of the Fourteenth Amendment.  Speaking through Justice Sutherland, we noted that the Nineteenth Amendment, and the social and political changes that led to its passage, had changed the status of women such that they were now full citizens in American society entitled to equal rights under the Constitution. While Adkins has been overruled on its precise holding--that the special needs of women cannot be considered in setting minimum wage laws--the broader legal principle invoked, that subsequent amendments can change our intepretation of the meaning of due process, remains valid.  The Fourteenth Amendment granted African Americans full rights of national citizenship, and the Federal Government may therefore no longer arbitrarily deprive them of liberty rights encompassed by the Due Process Clause.

If Warren succumbed to Lochnerphobia in failing to cite Meyer and Pierce, it is not surprising that he was unwilling (or likely did not even think) to cite Adkins, probably the most reviled case of the entire Lochner era.

            In addition to the weakness of Bolling’s due process holding, the Court’s Lochnerphobia undermined its equal proection dicta as well.  To the extent that Bolling has come to stand for the proposition that the concept of due process contains a guarantee of equal protection of the laws, critics can aptly note that the precedents Warren relied on—none of which preceded the key anti-Lochner year of 1937—were weak at best.[127]  However, as we have seen, ample precedent from the 1910s (and, at the Supreme Court level) the 1920s, supported the notion that due process overlaps with equal protection,.  Some Lochner era commentators even argued that, at least as far as the Fifth Amendment’s Due Process Clause was concerned, due process provided the same equality guarantees as the Fourteenth Amendment’s Equal Protection Clause.[128]

            As noted above, an Adkins-style argument in Bolling could have satisfied the “originalist”[129] objection that the Fifth Amendment was not intended to protect the rights of  African Americans.  An originalist might still object that even if the Fourteenth Amendment’s Due Process Clause included a notion of equality, the Fifth Amendment’s Due Process Clause did not; that opposition to “class legislation” was not part of American constitutional discourse, and was not written into American constitutional law, until the Reconstruction era.  A full examination of this issue is beyond the scope of this Article, but suffice for now to say that the idea that due process includes a guarantee that all laws be “equal and general” goes back to the founding era and beyond.[130]

The question also arises as to whether an explicit recognition in Bolling of a liberty right to pursue and education would have mandated a different result in San Antonio Independent School District v. Rodriguez, which held that in the absence of racially discriminatory intent, unequal funding of public schools does not violate the equal protection clause.  Under a Lochnerian analysis, the question would be whether a state was exceeding its police powers in allowing local jurisdictions to be the primary funders of public schools, given the funding disparities that would inevitably arise. Bolling could be distinguished from Rodriguez because unlike black students forbidden to attend white schools, in Rodriguez no law prevented an individual who wanted his child to attend a particular public school from moving to that district.  The right to pursue an education was therefore not infringed.  Moreover, given the advantages of local funding (and thus control) of public schools, local school funding not an arbitrary policy, and a lack of arbitrariness is all that’s needed to satisfy a Lochnerian test.

            However, Warren’s draft Bolling opinion, though Lochnerian in its underlying origins, had declared that the right to pursue an education was a fundamental right. Unlike a traditional Lochnerian analyis, where infringements of rights are permissible so long as they are reasonable and non-arbitrary, under modern due process law, a right’s status as fundamental means that any infringement on the right is subject to strict scrutiny.  Under strict scrutiny, the government’s actions must not be simply reasonable and non-arbitrary, but also must compelling interests and be narrowly tailored to serve those interests. Assuming intradistrict disparities in funding were found to infringe on the right to pursue an education, it would have been difficult to justify these disparities under a compelling interest test.  If a fundamental rights analysis had been applied in Rodriguez, the effect on desegregation lawsuits, in particular, would have been dramatic: plaintiffs would not have had to show that the inequality of resources in black and white schools was traceable to the maintenance of a dual system (discriminatory intent), but rather simply that the inequality infringed on black students’ right to pursue their education without compelling justification.


            A careful analysis of Bolling v. Sharpe reveals some surprises.  First, the almost universal portrayal of Bolling as an opinion relying on a “equal protection component” of the Fifth Amendment’s Due Process Clause is incorrect. The opinion is vague and opaque, but a comparison of Chief Justice Warren’s original draft opinion with the final opinion makes it clear that the Court’s precise holding was that school segregation in the District of Columbia arbitrarily violated Black students’ right to educational liberty.  Bolling, then, was a substantive due process opinion with roots in Lochner era cases such as Buchanan v. Warley, Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige, even though the Court ultimately chose to cite only Buchanan.

Among other things, Bolling’s roots in Lochnerian cases belies the oft-heard notion that the Lochner line of cases was somehow directly at odds with racial equality, and that the overruling of those cases in the 1930s was a necessary prelude to Brown.[131]  Indeed, not only did the Lochner line of cases not stand in the way of a broad interpretation of the Equal Protection Clause, Bolling shows that de jure segregation was actually highly vulnerable to Lochnerian argument.  The Supreme Court simply had to recognize that exclusion of Blacks from government services provided to whites was properly understood as a denial of Blacks’ liberty.[132]

Arguably, Bolling also shows the potential for an equalitarian jurisprudence to have emerged in a political environment far closer to pre-New Deal norms of federalism and government regulation of the economy than what had emerged by the 1950s.  As the author of this Article wrote a decade ago,

It is possible to imagine that but for the interruption of the Great Depression and the New Deal, entirely different forms of civil rights protections would have arisen--a laissez-faire combination of equal protection of the law, liberty of contract, and freedom of association, instead of the more statist combination of interest group liberalism, the welfare state, and government enforcement of nondiscrimination norms against private parties.[133]

            Some would argue, however, that once a Lochnerian Court acknowledged that access to a government-provided service could be construed as a liberty right, the entire classical liberal/libertarian edifice of Lochner would be lost.  After all, libertarianism is premised on the notion that all rights against the government are negative rights.  On the other hand, a libertarian might argue that to subsidize one group is the economic equivalent of taxing its competitors.  To subsidize whites’ education more than blacks’ education---whether through extra monetary aid to white schools or merely by requiring blacks to go to separate schools and thus, in the context of a racist society, inherently relegating them to second-class education---is, by economists’ lights, the equivalent of taxing blacks more than whites. The right to be free from discriminatory taxation on an arbitrary basis such as race is certainly within the scope of the classical liberal/libertarian paradigm.

Another surprise is that the Bolling Court did not simply make up the proposition that Bolling has come to stand for, that the Fifth Amendment Due Process Clause prohibits some forms of discrimination by the Federal Government.  This idea actually had a basis in longstanding precedent.  More of a stretch is the current doctrine that the protection from discrimination provided by the Fifth Amendment is precisely the same as that provided by the Fourteenth Amendment’s Equal Protection Clause. Even that view, however, was anticipated by cases and commentary from the Gilded Age and the Lochner era.

            Finally, Bolling is an important example of the distorting effect of Lochnerphobia on Supreme Court jurisprudence.  As discussed above, the Court’s opinion would have been much stronger had it been willing to explicitly rely on Lochner era precedents such as Meyer and Tokushige, and to employ a more explicitly Lochnerian view of the due process clause.  Moreover, the Justices’ Lochnerphobia eventually led it to abandon the liberty-to-pursue-an-education basis of Bolling entirely, in favor of an equal protection interpretation of the case. 

Because the cursory equal protection analysis in Bolling was not supported by citations to relevant pre-New Deals precedents, the Court subsequently instead took to heart Bolling’s admonition that it would be “unthinkable” to permit the Federal Government to discriminate when the states were banned from doing so. The result has been the curious doctrine of “reverse incorporation” under which the Court has held that the Fifth Amendment’s Due Process Clause somehow incorporates against the Federal Government the Fourteenth Amendment’s Equal Protection Clause.

            Bolling is hardly the only Supreme Court opinion that was been distorted by the Justices’ Lochnerphobia.  Justice William O. Douglas’s opinion in Griswold v. Connecticut infamously relied on the (to put it charitably) novel argument that the “penumbras and emanations” of various parts of the Bill of Rights created a fundamental right to privacy protected by the Fourteenth Amendment’s Due Process Clause.[134]  Douglas explicitly disclaimed any intention of reviving Lochner, and, while he favorably cited Meyer and Pierce, he tendentiously reinterpreted them as First Amendment cases.  Justice John Marshall Harlan’s lone concurrence, by contrast, relied on on traditional Lochnerian substantive due process reasoning.  He argued that the Due Process Clause protects “basic values implicit in the concept of ordered liberty,with regulations that infringed on liberty permitted only if they were reasonably related to legitimate police power concerns.

            Of late, the Court’s Lochnerphobia seems to waning.  The Court still rejects the economic substantive due process cases of the Lochner era, such as Lochner itself and Adkins v. Children’s Hospital.[135]  But in a string of recent opinions, a majority of the Court has otherwise embraced a Lochnerian interpretation of the Fourteenth Amendment’s Due Process Clause consistent with Meyer, Pierce, and Justice Harlan’s opinion in Griswold.[136]  The penumbral right to privacy has given way to a broader protection of liberty interests against arbitrary governmental interference.  The sharp, post-Lochner era distinction between fundamental liberty rights protected by strict scrutiny and other liberty interests protected only by very limited scrutiny has eroded.[137]  In the 2002-03 term, the Court held that both standardless punitive damages awards[138] and restrictions on homosexual sodomy[139] constituted arbitrary violations of rights protected by due process considerations, even though the Court identified no relevant “fundamental rights.”  The Court instead implicitly concluded that animus toward big business or homosexuals, even if based in deeply-rooted notions of morality, were not valid police power justifications of the defendants’ otherwise arbitrary deprivations of the relevant liberty interests. 

            In this climate, where Lochnerian substantive due process protection of liberty interests has become relatively routine, though not unconstroversial,[140] perhaps the time has come for courts and commentators to reconsider the Bolling opinion.  Bolling was a substantive due process opinion, shorn of precedent and coherent reasoning by a Court afraid of its own Lochnerian shadow.  As a result, Bolling receives little support from legal scholars, and has been misintrepreted as a pure equal protection opinion.  In fact, with its roots in Buchanan v. Warley and the 1920s educational liberty cases, the liberty right to be from from compelled segregation in education is perhaps better-grounded than the liberty right to terminate one’s  pregnancy, to engage in homosexual sodomy, or to be free from arbitrary punitive damages awards.  This will not satisfy critics who oppose the Court’s substantive due process jurisprudence accross the board.  But for the vast majority of legal scholars who do support the Court’s current substantive due process jurisprudence, Bolling should be an easy case to defend.


[1] Professor, George Mason University School of Law.  An earlier version of this Article was presented at the Georgetown University Law Center conference Bolling v. Sharpe at 50: Desegregation in the District of Columbia: Past, Present and Future in April 2004.  The author thanks George Mason’s Law and Economics Center for providing financial support for this Article.  Jack Balkin and Mike Seidman have provided helpful comments.

[2] 347 US 497 (1954).

[3]  See, e.g., Kenneth L. Karst, The Fifth Amendment’s Guarantee of Equal Protection, 55 N.C. L. Rev. 541, 546 (1977) (noting that the Bolling opinion “left the Court open to the charge that what it found ‘unthinkable’ was the political implication of a contrary decision, rather than an anomaly of constitutional principle.”).

[4] E.g., Schneider v. Rusk, 377 U.S. 163, 168-69 (1964) (quoting Bolling for the proposition that “‘while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process.’”).

[5] Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (“This Court’s approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.”).  As we shall see, the statement in this parenthetical is incorrect, but it does reflect the state of the law from 1975 until today.

[6] Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan. L. Rev. 395, 409 (1995).


[7] Nomination of David H. Souter to be Associate Justice of the Supreme Court of the United States: Hearings before the Committee on the Judiciary, United States Senate, 100th Cong., 2d Sess. 305 (1990) (statement of Judge Souter).

[8] I dislike the term “substantive due process,” but will use it in this Article because of its widespread use to describe jurisprudence protecting liberty rights via the Due Process Clause of the Fifth and Fourteenth Amendments.  As applied to Lochner era jurisprudence,  and perhaps even to Bolling, the phrase “substantive due process” is anachronistic. See G. Edward White, The Constitution And The New Deal 245 (2000) (explaining that it was not until the 1950s that jurisprudence under the Due Process Clause was firmly separated by courts and legal scholars into “substantive” and “procedural” categories).


[9] This sentence appeared two sentences earlier in the original draft opinion.

[10] Lessig, supra note __.

[11] The Court cited three Fifth Amendment cases in support of its statement that “as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process” Detroit Bank v. United States, 317 U.S. 329 (1943); Currin v. Wallace, 306 U.S. 1, 13–14 (1939); and Steward Machine Co. v. Davis, 301 U.S. 548, 585 (1937).

Currin is of no help to the Court, as it simply states that although the exercise of the commerce power is subject to the Fifth Amendment, “that Amendment, unlike the Fourteenth, has no equal protection clause.” Davis repeats the same point, though it added that the Court assumed that discrimination in taxation “if gross enough, is equivalent to confiscation and subject under the Fifth Amendment to challenge and annulment.” Detroit Bank, meanwhile, states on the one hand that the Fifth Amendment “contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.” On the other hand, the Court acknowledges that discriminatory legislation “may be so arbitrary and injurious in character as to violate the due process clause of the Fifth Amendment.”  Each of the latter two cases could be interpreted not as stating that the Due Process Clause contains an equal protection component, but as stating that taxation is unconstitutional under the Due Process Clause when it amounts to arbitrary confiscation.  Concern with arbitrary confiscation is not quite the same as the traditional equal protection concern with arbitrary classification.  Moreover, in each of these cases the Court ruled against the plaintiff, leaving any Fifth Amendment basis for invalidating discriminatory legislation vague and unclear, at least based on these precedents.


[12] 245 U.S. 60 (1917).

[13] Farrington v. Tokushige, 273 U.S. 284 (1927); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska 262 U.S. 390 (1923); Adkins v. Children’s Hospital, 261 U.S. 525 (1923); Buchanan v. Warley, 245 U.S. 60 (1917). Lessig asserts that Bolling recognized that the Fourteenth Amendment inaugurated a “middle republic” granting full citizenship rights to African Americans, after which “[f]ederal powers can no longer be used to advance interests of racial inequality.”  Lessig, supra note __.

[14] Thus, one can only describe Bolling as “universally accepted” if one limits the universe to supporters of Warren Court jurisprudence.  See William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062, 2365 (2002) (describing Bolling as “universally accepted”).

[15] Raoul Berger, 1983 Insulation Of Judicial Usurpation: A Comment On Lawrence Sager’s “Court-Stripping” Polemic, 44 Ohio St. L.J. 611, 629 n. 173 (1983).

[16] Raoul Berger, Activist Censures of Robert Bork, 85 N.W. U.L. Rev. 993, 1015 (1991).

[17] Id.

[18] Id.

[19] Robert H. Bork, The Tempting of America 83-84 (1990).

[20] As noted previously, the Bolling opinion did not state this, though later Supreme Court opinions asserted that it did.

[21] Id. at 83.

[22] Balkin at 166.

[23]Lino A. Graglia, Constitutional Law: A Ruse for Government by an Intellectual Elite, 14 Ga. St. U. L. Rev. 767, 774 (1998).

[24]   Lucas A. Powe, Jr., The Warren Court and American Politics 32 (2000).

[25] Id.

[26] Id.

[27] Sanford Levinson, Constitutional Rhetoric and the Ninth Amendment, 64 Chi.-Kent L. Rev. 131, 147(1988).

[28] John Hart Ely, Democracy and Distrust 32 (1980).

[29] Thomas C. Grey, The Uses of an Unwritten Constitution, 64 Chi.-Kent L. Rev. 211, 230 (1988).

[30] Balkin, supra note __, at 128.

[31] Id. at 129.

[32] Lawrence G. Sager, You Can Raise the First, Hide Behind the Fourth, and Plead the Fifth. But What On Earth Can You Do With the Ninth Amendment?, 64 Chi.-Kent L. Rev. 239, 262 (1988)

[33] Akhil Amar, Intratextualism,112 Harv. L. Rev. 747, 767 (1999).

[34] Balkin, supra note __, at 63-64

[35] Id.

[36] Drew S. Days, III, concurring, in Balkin, supra note __, at 97-98.

[37] Balkin, supra note __, at 131: “It thus appears to me that, after we have taken the contstitutional text and its legislative history as far as defensible legal argumentation can take them, decision in the Bolling case, at least, finally comes to rest on an attribution of national purpose and commitment for which no internal legal-textual or tetual historical demonstration can be found.”  Michelman’s further explication doesn’t get any more coherent than that.

[38] Amar, supra note __.

[39] Balkin, supra note __, at 114-16.

[40] Balkin, supra note __, at 139.

[41] See Vanzant v. Waddell 10 Tenn. 554 (1829); Rodney L. Mott, Due Process of Law (1926).

[42] See infra notes __ to __ and accompanying text.

[43] See infra notes __ to __ and accompanying text.

[44] 261 U.S. 525 (1923).

[45] Berger, supra note _; Bork, supra note _; Powe, supra note _.

[46] Sager, supra note _.

[47] Amar, supra note _.

[48] Vanzant v. Waddell 10 Tenn. 554 (1829).

[49] Id.

[50] See David E. Bernstein, Lochner, Parity, and the Chinese Laundry Cases, 41 Wm. &  Mary L. Rev. 211 (1999)

[51] See Howard Gillman, The Constitution Besieged (1993).

[52]See Richard S. Kay, The Equal Protection Clause in the Supreme Court: 1873-1903, 29 Buff. L. Rev. 667, 688-89 (1980).

[53]See, e.g., Barbier v. Connolly, 113 U.S. 27, 31 (1884); see generally Kay, supra.

[54]Dent v. West Virginia, 129 U.S. 114, 124 (1889) (“legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates”). Cf. State v. Hogan, 58 N.E. 572, 573 (Ohio 1900):

The test of uniform operation, and with respect to the required conformity to the ‘law of the land,’ and to the requirement of ‘due process of law,’ seems to be that if the law under consideration operates equally upon all who come within the class to be affected, embracing all persons who are or may be in like situation and circumstances, and the designation of the class is reasonable, not unjust or capricious or arbitrary, but based upon a real distinction, the law does operate uniformly, and if, added to this, the law is enforced by usual and appropriate methods, the requirement as to ‘due process of law’ is satisfied.


[56]139 U.S. 462, 468 (1891).

[57]             Id. This dictum was cited in Florida Cent. & C. R. Co. v. Reynolds, 183 U.S. 79, 115 (1901); Duncan v. Missouri, 152 U.S. 377, 382 (1894); Giozza v. Teirnan, 148 U.S. 657, 662 (1893); Caldwell v. Texas, 137 U.S. 692, 697 (1891).  This language was quoted as late as 1921 by the Alabama Supreme Court in Barrington v. Barrington, 89 So. 512, 513 (Ala. 1921).

[58] In Hyland v. Sharp, 41 So. 264 (Miss. 1906), the Mississippi Supreme Court invalidated a law taxing the lending of money when the collateral for the loan was domestic securities.   The court found that the law involved an arbitrary classification.  “Can it be possible,” the court asked rhetorically, “that argument should be needed to show that the Legislature could not vary the occupation tax by the single consideration as to the kind of security taken for a loan?”  The court acknowledged that the purpose of the law was to reach those who lend at exorbitant interest to necessitous persons, with the penalty the loss of essential household goods.  But by banning the use of household items as collateral, without regard to the interest rate of the loan or the actual use of the item in question, there was an arbitrary deprivation of property rights without due process of law. See also Rodge v. Kelly 40 So. 552, 554 (Miss. 1906) (“As written, the statute is unfortunately class legislation, falling within the inhibition of the constitutional provisions named [due process and equal protection.]”).  In State ex rel. Wyatt v. Ashbrook, 55 S.W. 627, 632 (Mo. 1900), the Missouri Supreme Court invalidated a law that prohibited employers with more than fifteen employees from selling certain items in large cities without a license. Due process of law, “when having reference to legislative enactments, must mean a requirement of action or abstinence, binding upon and affecting alike each and every member of the community of the same class, or of similar circumstances, enacted for the general public good or welfare.”  The law in question, by contrast, involved classification that was “was wholly without reason or necessity. It is so arbitrary and unreasonable as to defy suggestion to the contrary. The simple statement of its creation is a most fatal blow to its continued existence. It is truly ‘classification run wild.’ It is special legislation unrestrained.” 

[59] E.g., Connolly v. Union Sewer Pipe Co., 184 U.S. 540 (1902) (invalidating an antitrust law that exempted only farmers and ranchers); Cotting v. Kansas City Stock Yards Co. 183 U. S. 79, 114-15 (1901) (Harlan, J., concurring for six Justices) (invalidating a mine inspection law because it applied only to one of the many mining companies in the state); Gulf C. & S.F. Ry. Co. v. Ellis, 165 U. S. 150 (1896) (invalidating a law that allowed plaintiffs with small claims against railroads to recover fees and costs if the railroad initially refused to pay the claim and then lost at trial, three Justices dissenting); Kay, supra note __.

Note that this author’s interpretation differs from Gillman’s, who sees the Lochner line of cases as reflecting opposition to class legislation.  This author’s differences with Gillman are explored in David E. Bernstein, Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, 92 Geo. L.J. 1 (2003).  Similarly, this author rejects Cass Sunstein’s view that the Lochner line of cases primarily reflected a desire to uphold common law norms against legislative redistribution.  David E. Bernstein, Lochner’s Legacy’s Legacy, 82 Tex. L. Rev. 1 (2003).

                Arguably, cases such as Smyth v. Ames, 169 U.S. 466 (1898), which ensured that regulated industries not be denied a “reasonable” rate of return, involved enforcement of  anti-class legislation norms via the Due Process Clause’s protection of property (rather than, as in Lochner, liberty) rights.  See Barry Cushman, Some Varieties and Vicissitudes of Lochnerism (forthcoming B. U. L. Rev. 2005) (making this argument).  On the other hand, one can interpret these cases as involving the longstanding American right  not to have an individual property owner bear a public burden.  Moreover, if Cushman is correct that these cases were seen as involving opposition to “class legislation” under the Fourteenth Amendment’s Due Process it’s hard to see why the Lochner era Court was extremely reluctant to acknowledge that the Fifth Amendment’s Due Process Clause had any equal protection component, and why the Court eventually held that this component was minimal.  See infra notes __ to __ and accompanying text (discussing the controversy over whether the Fifth Amendment’s Due Process Clause included an equality component).

[60] 198 U.S. 45 (1905).

[61]Allgeyer v. Louisiana, 165 U.S. 578 (1897).

[62] E.g., Allgeyer v. Louisiana., 165 U.S. 578, 589 (1897) (Peckham, J.); Frisbie v. United States, 157 U.S. 160, 165-66 (1895) (Brewer, J.); Hooper v. People, 155 U.S. 648, 655 (1895) (Harlan, J., dissenting).

[63] See Bernstein, supra note __ (Georgetown article); David E. Bernstein, The Story of Lochner v. New York: Impediment to the Growth of the Regulatory State, in Constitutional Law Stories 325 (Michael C. Dorf, ed. 2004).

[64] 268 U.S. 510 (1925) (invalidating a law banning private schools).

[65] 268 U.S. 652 (1925) (suggesting that freedom of speech is a fundamental right protected by the Fourteenth Amendment).

[66]214 U.S. 138, 142 (1909).

[67] E. Connor Hall, Due Process of Law and Class Legislation, 43 Am. L. Rev. 926, 927 (1909).

[68]  195 U.S. 27, 62 (1904),

[69]218 U.S. 532, 546 (1910).

[70]223 U.S. 1(1912).

[71] Id. at 52-53.

[72] U.S. v. New York, N.H. & H.R. Co. 165 F. 742, 745 -746 (C.C.Mass. 1908).

[73] Watson v. St. Louis, I.M. & S. Ry. Co. 169 F. 942, 947 (D. Ark. 1909); Coca-Cola Co. v. Nashville Syrup Co. 200 F. 153, 155 (D. Tenn. 1912). In yet another case, a plaintiff argued that a District of Columbia law was unconstitutional class legislation under the Fourteenth Amendment.  The court noted that the Fourteenth Amendment only applied to state legislation and not to D.C., but assumed arguendo that a prohibition on class legislation by Congress in the District of Colunbia may be implied “from our form of government.” Siddons v. Edmonston 42 App. D.C. 459 (C.A.D.C. 1914).

[74] United States v. Billings  190 F. 359, 363 (C.C.N.Y. 1911) (emphasis supplied).

[75] See supra note __ (discussing Cushman).

[76] Some early cases relied on both an equal protection and due process analysis to invalidate laws that unjustly discriminated, including what one author claims was the first case in which the Court declared that a state police regulation was unconstitutional because it was inconsistent with due process “as a substantive requirement.” See Reagan v. Farmers Loan and Trust Co., 154 U.S. 362 (1894); Mott, supra note , at 341.

[77]E.g., Truax v. Corrigan, 257 U.S. 312, 333-34 (1921).

[78]Truax v. Corrigan, 257 U.S. 312, 333-34 (1921).

[79] Hannis Taylor, Due Process of Law and The Equal Protection of the Laws 297 (1917).

[80] Id. at 307.

[81] Charles K. Burdick, The Law of the American Constitution: Its Origins and Development 408 (1922).

[82]  Id. at 418-419.

[83] Truax, 257 U.S. at 331-32.

[84] 256 U.S. 377 (1921).

[85] Id. at 392.  This language seemed to implicitly overrule language in Brushaber v. Union Pac. R. Co. 240 U.S. 1, 24 (1916), suggesting that the Fifth Amendment placed no limits on Congress’s taxing power:

So far as the due process clause of the 5th Amendment is relied upon, it suffices to say that there is no basis for such reliance, since it is equally well settled that such clause is not a limitation upon the taxing power conferred upon Congress by the Constitution; in other words, that the Constitution does not conflict with itself by conferring, upon the one hand, a taxing power, and taking the same power away, on the other, by the limitations of the due process clause.

[86]261 U.S. 525 (1923).

[87]Id. at 555 n.1, 563.

[88]Id. at 556-57.

[89] 163 U.S. 537 (1896).

[90] Plessy v. Ferguson, 163 U.S. 537, 557 (1896).

[91] For an excellent discussion of Plessy’s dissent, see Alexander T. Aleinikoff, Re-Reading Justice Harlan’s Dissent in Plessy v. Ferguson: Freedom, Antiracism, and Citizenship, 1992 U. Ill. L. Rev. 961.


[92] 211 U.S. 45 (1908).

[93] For a discussion, see David E. Bernstein, Plessy versus Lochner: The Berea College Case, 25 J. Sup. Ct. Hist. 93 (2000).

[94]Brief for Plaintiff in Error on Rehearing at 27-36, Buchanan v. Warley, 245 U.S. 60 (1917); Brief for Plaintiff in Error at 26, Buchanan v. Warley, 245 U.S. 60 (1917).

[95] Alexander Bickel & Benno Schmidt, The Judiciary and Responsible Government 811-12 (1986) (recounting the views of those who think that Buchanan was purely a property rights decision); Andrew Kull, The Color Blind Constitution 139 (1988); (“The usual explanation for how it came about that the Supreme Court should vote unanimously to strike down a segregation ordinance in 1917—is that Buchanan is essentially a decision defense of property rights.”).  A more moderate view is taken by Michael Klarman, who concludes that “Buchanan probably had more to do property rights than with civil rights.” Michael J. Klarman, From Jim Crow to Civil Rights 82 (2004).

[96] For additional discussion, see David E. Bernstein & Ilya Somin, Judicial Power and Civil Rights Reconsidered, 114 Yale L J. __ (forthcoming 2004) David E. Bernstein, Philip Sober Restraining Philip Drunk: Buchanan v. Warley in Historical Perspective, 51 Vand. L. Rev. 799 (1998)

[97] The Court acknowledged that “property may be controlled in the exercise of the police power in the interest of the public health, convenience, or welfare.”Buchanan, 245 U.S. at 74.

[98] Id. at 78-79.

[99] Id. at __.  


[100] Harmon v. Tyler, 273 U.S. 668 (1927).

[101] City of Richmond v. Deans, 281 U.S. 704 (1930).

[102] 261 U.S. 525 (1923).

[103]Sutherland was undoubtedly sincere in his advocacy of women’s rights, having been an advocate of women’s suffrage and the Equal Rights Amendment in his earlier political career.  See Speech of Senator George Sutherland of Utah, at the Woman Suffrage Meeting, Belasco Theater 3-4 (Dec. 13, 1915) (“To my own mind the right of women to vote is as obvious as my own. . . . women on the average are as intelligent as men, as patriotic as men, as anxious for good government as men. . . . to deprive them of the right to participate in the government is to make an arbitrary division of the citizenship of the country upon the sole ground that one class is made up of men, and should therefore rule, and the other class is made of women, who should, therefore, be ruled.”).  Sutherland was an adviser to Alice Paul, leader of the National Woman’s Party, which advocated an Equal Rights Amendment that, among other things, would have banned special protective legislation for women.  See Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 94, 1013 (2002).  Felix Frankfurter attacked Sutherland’s opinion in Adkins as a “triumph for the Alice Paul theory of constitutional law, which is to no little extent a reflex of the thoughtless, unconsidered assumption that in industry it makes no difference whether you are a man or woman.”  Quoted in Elizabeth Faulkner Baker, Protective Labor Legislation: With Special Reference to Women in the State of New York 98 (1925).

[104] Thus, if one considers the actions of the D.C. government in the 1920s to be “federal action,” Matthew Perry is incorrect when he argues that Justice Frank Murphy’s opinions in a series of cases in the mid-1940s “represent the first time a Supreme Court Justice not only suggested, but recognized and then applied an equal protection guarantee, through use of the Due Process Clause of the Fifth Amendment, to federal governmental action which affected civil rights and liberties.”  Matthew J. Perry, Justice Murphy And The Fifth Amendment Equal Protection Doctrine: A Contribution Unrecognized,  27 Hast. Const. L.Q. 243, 247 (2000).

[105] Robert C. Post, Defending the Lifeworld: Substantive Due Process in the Taft Court Era, 78 B.U. L. Rev. 1489, __ (1999).

[106] __ U.S. __ (1925).

[107] See Society Of The Sisters of the Holy Names Of Jesus And Mary v. Pierce, 296 F. 328, 338 (D. Ore. 1924).

[108] Farrington v. T. Tokushige, 11 F.2d 710, 714 (9th  Cir. 1927).

[109] West Coast Hotel v. Parrish, 300 U.S. 379 (1937).

[110] United States v. Carolene Products Co., 304 US 144, _ n.4 (1938).  See Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, Mich. L. Rev. (forthcoming) (noting that this interpretation of these opinions had no reasonable basis).

[111] 334 U.S. 1, 12 (1948).

[112] In Hirabayashi, the Court stated that “the Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process.”  However, the Court added that “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.” Moreover, the Court stated that it “may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion.”  In Korematsu, the Court reiterated that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.”  While the Court did not identify the source of this dictum, given that the case involved the internment of Japanese Americans by the federal government, the logical source would be the Fifth Amendment’s Due Process Clause. 

Justice Murphy, who dissented, relied explicitly on the Due Process Clause, but only the deprivation of procedural due process, not substantive liberty.  Thus, it would be logical to interpret the majority’s reference to “civil rights” as the denial of procedural, not substantive rights, and thus an inapt precedent for Bolling’s substantive due process holding.  In any event, the Japanese plaintiffs were clearly deprived of their liberty in the internment cases.  It’s therefore not at all clear that any opinion in these cases invoking equal protection principles relied purely on discovering an equal protection component of due process, as opposed to invoking a principle that deprivatons of liberty that involve racial classifications will require a  stronger police power (or in these cases, national security) justification than would be required to justify a typical deprivation of liberty by the Federal Government.

                As for the three opinions cited by Warren for the general proposition that discrimination can be so egregious as to violate due process, a review of the briefs filed in Bolling reveals that, ironically, these three cases were cited by the defendants in Bolling for the proposition that the Fifth Amendment does not contain an Equal Protection Clause. Brief for Respondents, Bolling v. Sharpe, 1952 WL 47280.

                Justice Murphy also argued in a concurring opinion in Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 234-45 (1944), that a federal law that authorized mandatory collective bargaining, but allowed workers’ representatives to engage in racial discriminatioy “would bear the stigma of unconstitutionality under the Fifth Amendment in this respect.”  Murphy did not clearly explain why he believed such a law would violate the Fifth Amendment, beyond to state that the “Constitution voices its disapproval whenever economic discrimination is applied under authority of law against any race, creed or color.”

[113] Warren also cited the Japanese internment cases for the proposition that racial classifications must be subjected to heightened scrutiny.  However, the point of this citation appears to be that it raised the bar for the Federal Government to prove that its violation of Blacks’ substantive due process liberty rights was not arbitrary and thus was within the police power.

[114] See text accompanying notes __ to __.

[115] Indeed, the plaintiffs quoted this language from Meyer in their brief.  Brief for Petitioners at 13, Bolling v. Sharpe (No. 4) (1954).

[116] Bolling at __. This was, in fact, precisely the argument made in the plaintiffs’ briefs and during oral argument.  Brief for Petitioners at 13, Bolling v. Sharpe (No. 4) (1954). Text of the oral argument can be found at

[117] See Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court 99 (1983); Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking and the Supreme Court, 1948-1958, 68 Geo. L.J. 1, 48 (1979).

[118] Id.

[119] Griswold v. Connecticut, 381 U.S. 479, 516 (1965) (Black, J., dissenting).

[120] Hutchinson, supra note __, at 50.

[121] Letter from Justice Frankfurter to Justice Rutledge, Jan. 22, 1944, quoted in Hutchinson, supra note __, at 49.

[122] See id.

[123] “Although the ‘fundamental liberty’ analysis stood on shaky, even discredited, ground, it was at least prrecedented.”  Hutchinson, supra note __, at 50.

[124] See supra note _ and accompanying text.

[125] As shown in the annotated Bolling opinion produced above, the basis for the draft Bolling opinion was clearly a substantive due process rationale with equal protection dicta, and the final opinion only subtracts from the discussion justifying the substantive due process holding, without adding anything about equal protection.

[126] See Graglia, supra note __.

[127] See supra note __, and acommpanying text.

[128] See supra notes __ to __ and accompanying text.

[129] While one originalist methodology would be to argue that the Fifth Amendment was not intended to apply to African Americans, other originalists would note that the Fifth Amendment speaks only of “persons,” not “whites.”  Given that the meaning of the word “person” is not race-exclusive, and given the natural rights background of the Constitution, which provides a rule of construction to interpret ambiguous provisions, these originalists could argue that the Fifth Amendment did indeed include African Americans within its purview, even if the Framers did not intend it to do so. For a good discussion of originalism, natural rights, and rules of construction, see Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 125-30 (2004).

[130] See Howard Gillman, The Constitution Besieged (1993); Taylor, supra note _, at 303-04.

[131] See, e.g., 1 Bruce Ackerman, We the People: Foundations 147 (1991) (making this argument). For an argument that Lochnerian cases shielded blacks’ from protectionist  labor laws promoted by white interest groups, see David E. Bernstein, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal (2001).

[132] This shift certainly required an abandonment of the Court’s previous position that the Fourteenth Amendment does not address issues of “social equality.” However, as the first Justice Harlan’s career shows, there is no inherent contradiction between sympathy with Lochnerian reasoning and support for a broad understanding of the Fourteenth Amendment’s Equal Protection Clause.  See, e.g., Berea College v. Kentucky (Harlan, J., dissenting) (arguing that prohibiting colleges from having integrated student bodies violated the right of teachers to pursue their occupations free from unreasonable government interference); Adair v. United States, 208 U.S. 161 (1908) (Harlan, J.) (concluding that a law banning employers from firing union members was an arbitrary violation of liberty of contract).

[133]  David E. Bernstein, Roots The "Underclass": The Decline of Laissez-Faire Jurisprudence And The Rise of Racist Labor Legislation, 43 Am. U.L. Rev. 85, 135 (1994).

[134] See Lund & McGinnis, supra note __ (calling this one of the “most famously outlandish arguments in all of constitutional law”).

[135] In Planned Parenthood v. Casey, the plurality opinion explained that the reason the Court overruled Adkins was because “[i]n the meantime, the Depression had come and, with it, the lesson that seemed unmistakable to most people by 1937, that the interpretation of contractual freedom protected in Adkins rested on fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 861-62 (1992) (plurality opinion).  Justice Souter later explained that the principle espoused in Lochner era cases that arbitrary deprivations of liberty violated due process is “unobjectionable,” but  “while the cases in the Lochner line routinely invoked a correct standard of constitutional arbitrariness review, they harbored the spirit of Dred Scott in their absolutist implementation of the standard they espoused.” Washington v. Glucksberg, 521 U.S. 702, 760-61 (1997) (Souter, J., concurring).

[136] Lawrence v. Texas, 539 U.S. 558 (2003); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992) (plurality opinion).  As noted in the previous footnote, according to Casey, what was wrong with Lochner was not that the Court had protected a nontext-based fundamental right, but that the Court had erred in thinking that liberty of contract was a liberty interest that the Court should protect. Moreover, in contrast to Roe, the Casey Court allowed states to restrict abortion as long as the burden placed on women was not “undue,” a compromise that harkened back to Lochner’s deference to regulations of liberty that could be justified under the police power.

[137] See Randy E. Barnett, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas, 2002-2003 Cato Sup. Ct. Rev. 21

[138] State Farm, 538 U.S. 408.

[139] Lawrence, 539 U.S. 558.

[140] See, e.g., Lund & McGinnis, supra note __ (severely criticizing the Court’s substantive due process jurisprudence, and Lawrence in particular).