Fun with Court History

The Lochner era Court was not always hostile to state uses of the police power. Here are a few of the more amusing decisions from the early twentieth century, in which the Court rejected a 14th Amendment due process challenge to a "silly" (or objectionable) state law.

Murphy v. California, 225 U.S. 623 (1912) (opinion by Justice Lamar), upheld a South Pasadena ordinance outlawing billiard halls. This case includes what must be one of the best quotes in the entire U.S. Reports, and it's on bowling (!):

For Lord Hale in 1672 upheld a municipal bylaw against keeping bowling alleys because of the known and demoralizing tendency of such places.

Quick, someone call Robert Putnam and tell him that bowling has "known and demoralizing tendenc[ies]." And I thought it was a good way to build social capital. But seriously, Murphy is probably still good law, because it deals with a recreational activity, and only recreational activities involving at least one person's nether regions get protected by the due process clause, people. Indeed, there must be some cities that still outlaw billiards. I don't know if anyplace actually outlaws bowling, but there wouldn't be a viable constitutional challenge to such an ordinance. Especially now that that ardent and allegedly skilled bowler, Harriet Miers, has withdrawn her nomination. Seriously, do you think Souter or (Heavens forbid!) Breyer is going to stick his jurisprudence out for bowling?

Waugh v. Board of Trustees, Univ. of Mississippi, 237 U.S. 589 (1915) (opinion by Justice McKenna), upheld a state law prohibiting "Greek letter fraternities and societies in the state's educational institutions." Waugh is probably not good law, given development of freedom of association doctrine.

But my favorite is Butler v. Perry, 240 U.S. 328 (1916) (opinion by Justice McReynolds (!)), which upheld a Florida statute requiring able-bodied men to work on the state's highways for sixty hours a year, if required by local authorities, against both a 13th Amendment involuntary servitude challenge and a 14th Amendment due process challenge. (Btw, you could pay for a replacement to get out of the work, which somehow doesn't make the law any better, does it?)

Is Butler still good law? It's never been overruled, and it is occasionally cited for its limitation of the 13th Amendment to servitude "akin to African slavery." So, yes, it's good law. This means that the state of Ohio, for example, could require able-bodied men (and it could probably get away with limiting this to men) to work on the state highways for a limited number of hours a year . . . think of the money the state could save. Now, admittedly, those state legislators would never get reelected, and they might have to flee the jurisdiction, but fiscally, a promising idea.