Our last meeting of the year was held on April 7, 2017, and began with a great presentation about NCCU’s Street Law Program by Professor Page Potter. Professor Potter first provided a historical overview of street law, and she then detailed NCCU’s Street Law Program, which is a course taught by law students on legal topics to Durham public schools middle or high school students in cooperation with their classroom teachers. Topics taught include contemporary law & justice – principally, Constitutional law; the Bill of Rights; landmark U.S. Supreme Court cases; Federal and North Carolina court systems; and criminal law and criminal trial process. Professor Potter’s presentation was interesting and enlightening to the council, particularly to those, including myself, who may not have been aware that a number of law schools have a street law course as part of their curriculum.
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The council held a brief meeting at 7:30 a.m. on Feb. 9, 2017. John Branch, chair of the Law School Committee, reported on a potential law school forum program which may be considered during the fall of 2017. Colin Shive, editor for our blog, The Constitutionalist, related that there would be forthcoming blog articles. Patricia Perkins presented the treasurer’s report, and a discussion ensued regarding the use of any potential section budget surplus. In this connection, Andi Bradford will consult LRE for recommendations for council consideration at the next council meeting.
As has been the custom, the Annual Meeting of the Constitutional Rights and Responsibilities Section was held in conjunction with the section’s sponsored CLE. The topic this year was North Carolina House Bill 2. At noon, the section meeting convened and for the agenda the nomination committee submitted a slate of officers and members for consideration by the section. The first agenda item was the nomination of Chair Michele Luecking-Sunman and Vice Chair Patricia Perkins to be submitted to and recommended for appointment by NCBA President-Elect Caryn Coppedge McNeill. Second, Secretary Tami Fitzgerald and Treasurer Chris Brook were elected. Third, the section elected four new Council members: Leto Copeley, Scott Gaylord, Ann McColl and Tom Segars. I extend my congratulations to them on their election and commend them for their willingness to serve our section for the upcoming 2017-2018 council year.
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HB2 will be the subject of the Constitutional Rights & Responsibilities Section’s upcoming annual CLE on Thursday, Feb. 9 at the Bar Center in Cary. During the section’s most recent council meeting, Eric Doggett, co-chair of our CLE committee, gave a brief summary and circulated a copy of the CLE program, which will focus on Session Law 2016-3 (House Bill2) Public Facilities Privacy and Security Act. This program will include the following topics: an HB2 overview; HB2 and the Constitution; HB2 and employment law; and panel discussions addressing the interplay between local and state authority and the status of pending court proceedings challenging HB2. This CLE program will help to better understand the details of this law and its potential implications. This program will be presented on please mark your calendars and plan to attend to earn CLE credit and learn about this timely statewide topic.
The council meeting on Nov. 17, 2016, at the Bar Center also included a great beginning with remarks from four students from The Cary Academy: Grace Jin, a senior; three juniors, Danielle Carr, Max Nunez and Margaret Velto; and their history and government teacher Maret Jones. It continued with an explanation from them as to how they related their classroom study of the U.S. Constitution to current events. As you might imagine, the discussion that ensued was very informative and entertaining. One particular classroom project conducted by these students was the convening of a mock constitutional convention in which they went over the Constitution line by line in an effort to determine if and how it could be amended to better address our changing times. Not surprisingly, these students concluded that the Constitution was very well written, and that underscores how it has withstood the test of time. Also, when asked by the council, the students responded that they would make very few changes to this venerable document. On behalf of the council I presented each student a certificate of appreciation, a reprint of the U.S. Constitution and a copy of the book “Constitutional Law for Kids” by Ursula Furi-Perry, published by the American Bar Association and provided by the NCBA’s Law Related Education Department.
Committee updates included Colin Shive’s report for our blog, The Constitutionalist. He informed the council that the Sept. 2, 2016 blog post contained an article entitled, “Economic Liberty Challenges In the 21st Century” by Drew Erteschik and J. M. Durnovich. Blog Chair Colin Shive further reported that there would be forthcoming articles for our blog from students from Elon University School of Law.
Due to a conflict with two CLE programs, the Constitutional Rights and Responsibilities Section is moving the date of its Annual Meeting and CLE from Jan. 13, 2017 to Feb. 9, 2017. The CLE will focus on HB2 and the legal challenge to that bill, including its impact on employment law related issues as well as an analysis and discussion of the litigation resulting from the bill. We apologize for any inconvenience with regard to the change of date and hope to see you on Feb. 9, 2017.
Most of us left law school with the understanding that so-called “economic liberty” challenges to state regulations will generally fail under rational basis review. That area of the law, however, has changed dramatically.
This article looks at the change in three parts:
The first part offers a brief refresher on the history of economic liberty challenges in the 20th century.
The second part describes a flurry of recent cases involving successful economic liberty challenges on substantive due process grounds.
The third part examines some possible legal and policy explanations for the modern trend.
20th Century Views
In 1905, the U.S. Supreme Court decided Lochner v. New York, a case that considered a state law capping the maximum hours for bakery employees.[1] The Court struck down the law on the grounds that it violated the “right of an individual to be free in his person and in his power to contract in relation to his own labor.”[2] Over the next thirty years—the “Lochner era”—the Supreme Court struck down a number of state laws that infringed upon economic liberty rights.[3]
The Lochner era, however, was short-lived. Headlined by the Court’s decision in U.S. v. Carolene Products, the Great Depression ushered in the post-Lochner era—a time when the Court established a presumption of constitutionality for state regulations.[4] Most scholars attribute the shift to non-jurisprudential reasons: If President Roosevelt’s New Deal was to survive constitutional challenges, the Court needed to dilute Lochner’s potency.[5]
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I am honored to serve as chair for the 2016-2017 term. Let me begin by thanking Trey Allen for his outstanding job as our chair during the 2015-2016 term. Under Trey’s leadership we had a budget carryover, which was put to good use by Law Related Education. Additionally, as reported in the spring issue of The Constitutionalist, our membership increased more than 8 percent over the past year.
Our kickoff council meeting was held on Aug. 18, 2016, at the Bar Center. Jay Ferguson of Thomas, Ferguson & Mullins of Durham provided an excellent presentation: “Eighth Amendment: Evolving Standards of Decency to Eliminate the Death Penalty.” His presentation was quite informative and precipitated a lively discussion among the members of the council. To those of you who may be interested, Jay has agreed to share his Power Point presentation. If you would like a copy, please contact him at: [email protected]
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By Robert Ward
