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During oral argument in Brumfield v. Cain, Justice Scalia noted that he would not read the entire 20-volume record in this 8th Amendment death penalty case.

JUSTICE SCALIA: I haven’t read the whole record, you know, and I doubt that I’m going to. And I doubt that this Court is going to read the whole record in all of these Atkins cases in the future. I mean, what you’re saying is … you don’t think it’s fantastical?

This isn’t Justice Scalia’s first brush with lengthy reading and the 8th Amendment. Recall his comments to Deputy SG Kneedler during the Obamacare oral arguments?

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? (Laughter.) And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?

There you have it. Reading long documents violates the 8th Amendment, except where failing to do so would itself violate the 8th Amendment.

Today, the CEOs of nine corporations sent a letter to Indian Governor Mike Pence, urging him to modify or clarify RFRA. Yesterday, Apple CEO Tim Cook published an Op-Ed in the Washington Post, expressing his dismay with RFRA. (He stopped short of closing all Apple Stores in Indiana and all other states with RFRAs –he would be removed by his shareholders for doing so–and said nothing about Apple’s continued business with China, a horrific violator of every human right imaginable).

These letters and editorials were all signed by the CEOs in their corporate capacity. They were no doubt written using computers paid for by corporate funds, on company time, were likely edited by other employees of the corporation, and were likely marketed by other employees of the corporation. Every word of these letters were products of corporate speech.  Yes, imagine that. Cook could have written the Op-Ed in his individual capacity–but doing so would be harder than you think. He would have to use a computer he purchased from his personal funds, could not involve any Apple employees in proof-reading, editing, and publicizing the letter. Separating these two pots of money is harder than you think–compliance costs are expensive and time-consuming. And I doubt the Washington Post would publish an editorial if he refused to be identified as the executive of Apple.

I have absolutely no problem with these socially-conscience corporations expressing their views on laws, and seeking legislative change. I think these activities are, and should be protected by the First Amendment. But, not everyone agrees. If we take seriously the meme that “corporations are not people,” Indiana, or any other state, could pass a law that prohibits corporations from spending any corporate funds to criticize the government. If you wish to petition for a redress of grievances, the law would state, do so in your individual capacity. You cannot do so with any corporate funds. Corporations are not people!

Think of Citizens United–the government sough to block a group from releasing a movie during the election season if it was paid for by corporate funds! You are welcome to direct, produce, edit, and market the movie by yourself–just like Tim Cook could have written the op-ed with his personal resources.

Corporations are a group of people who assemble to achieve a common goal. Some of these goals may implicate criticizing government or candidates. Apple, and Citizens United alike, should be afforded First Amendment rights.

This is not to say there are no limits on spending and the like, but the threshold question of whether corporations should be allowed to speak is easy.

After a brief lull, I am hitting the road again. On Wednesday at 4:00 I am speaking on a panel at Rutgers University-Newark on the constitutionality of the President’s executive actions on immigration. Joining me will be Prof. Carlos Gonzalez. Later on Wednesday at 6:30 I  am speaking to the New Jersey Federalist Society on the constitutionality of the President’s executive actions on immigration. The event will be at the Morris Museum in Morristown.

On Thursday, I have a 3D-printed gun double header. First, at 12:45 at Brooklyn Law School, with commentary by Prof. Bill Araiza. Second, at 4:00 I am speaking at NYU Law School on the same topic.

All events are sponsored by the Federalist Society, and are open to the public. See you there!

The lecture notes are here. The live chat is here.

Substantive Due Process and Economic Liberty

• Due Process of Law (1443-1444).
• Due Process and Separation of Powers (1444-1446).
• Substantive due process (1463-1464).
• Lochner v. New York (1465-1473).
• West Coast Hotel v. Parrish (1473-1476).
• Rehabilitating Lochner, by David Bernstein

Lochner v. New York

Standing on the right is Joseph Lochner.

Here are photographs of Lochner’s bakery in Utica, New York.

 

Here is the cover of a recent book aimed at rehabilitating Lochner, which depicts Justice Rufus Pekham, author of the majority opinion, knocking out Justice Oliver Wendell Holmes, author of the famous dissent.

 

Through sleuthing at the Oneida County Clerk’s Office, I discovered this advertisement for Lochner’s bakery. According to the ad, Lochner’s Home Bakery “is one of the oldest and most reliable bakeries in Central New York. We pride ourself on Uniformity, Purity, Cleanliness.”

Muller v. Oregon

Here is the Lace House Laundry from Muller v. Oregon.

Here are workers inside the Lace House Laundry, courtesy of the Oregon Historical Society.

West Coast Hotel v. Parish

This is the West Coast Hotel is Wenatchee, Washington.

United States v. Carolene Products

First, here is Carolene Product’s famous footnote four:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536;Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v.Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v.California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378;Herndon v. Lowry, 301 U.S. 242; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 484, or racial minorities,Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolinav. Barnwell Bros., 303 U.S. 177, 184, n. 2, and cases cited.

I have collected a fortune of information about Carolene Products, Charles Hauser (the President), and his return trip to the Supreme Court which resulted in an affirmed conviction, and a pardon by President Roosevelt. Three decades later, a district court in Illinois found the federal Filled Milk Act Unconstitutional.

As a result of United States v. Carolene Products (1938), the Carolene Products company changed the name of their product from “Carolene” to “Milnut” at some point in 1938. I previously acquired a Carolene Products Cookbook from 1939, labelled as “Milnut.”

 

Now, thanks to a successful eBay bid, I am the proud owner of a Carolene Products cookbook from 1937 (before the Supreme Court case!). It is labelled as “Carolene” with the same logo.

 

Note how it is called a “Scientific Milk Product.” After 1938, the advertisements did not call it “Milk” to avoid problems under the Federal, and state Filled Milk Acts.

 

Who want’s some frizzled dried beef or baked ham slice?

As well, here is the history of the Carolene Products company from MilnotMilk.com, with some interesting photos.

 

The Seneca plant that was built right on the border with Oklahoma, in a means to work around (literally) the Filled Milk Act. I have more details on the Seneca plant here. The plant is still in operation today, operated by the Sumker’s company (you can order Milnot online! – I have a case).

Here is a copy of FDR’s pardon of Charles Hauser, President of the Carolene Products company.

Here is a copy of the remission of imprisonment, which I received from Hauser’s granddaugther. Note that the year 1944 is printed, and someone scribbled over it 1945.

Howard Friedman offers several reasons why Indiana’s RFRA is so much more controversial than its 1993 federal counterpart. His second rationale crystalized why Indiana’s law has created such an outrage!

Traditionally it was assumed that the federal RFRA would be used by minority religions to fend off broad regulations that might be enacted without a careful weighing of idiosyncratic religious practices that are important to often discrete and insular groups with comparatively small numbers of adherents.  Since Hobby Lobby and the explosion of same-sex marriage cases, it is largely the Christian majority (or a segment of it) that asserts it is the victim of the majoritarian process, seeking exemptions that have a negative impact on minority groups that have broadly been the victims of past governmental discrimination.

Dale Carpenter expressed a similar sentiment:

What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.

In my abstract for “Collective Liberty” (which just got a shot of new material), I stated the issue almost the exact same way:

Second, with respect to free exercise, we have witnesses a bold transformation of the Religious Freedom Restoration Act (“RFRA”). Introduced in Congress by Senators Kennedy and Rep. Schumer, and signed into law by President Clinton in 1993, RFRA was designed as a legislative override of Justice Scalia’s unpopular decision in Employment Division v. Smith. The law was designed as a shield to protect religious minorities, such as Native Americans who use sacramental peyote, from laws that infringe on their exercise. Fast­forward two decades, and RFRA is now wielded as a sword to enforce the religious identities of corporations, that cannot be burdened by the Affordable Care Act’s contraceptives mandate. In her dissent in Burwell v. Hobby Lobby, Justice Ginsburg highlighted the divide, focusing on how the Court’s accommodation of the religious liberties of Hobby Lobby would have an impact on “thousands of women” “who do not share the corporation owners’ religious faith.” For Ginsburg, the collective needs of society for covered contraception easily trumps religious liberty. The majority, which grudgingly conceded that covering contraception was a compelling interest, viewed the calculus exactly backwards.