We previously saw that substantive due process claims are split into two categories, those involving fundamental rights, discussed above, and those involving non-fundamental rights.

If the category of fundamental rights involves those rights concerning autonomy and privacy, the category of non-fundamental rights includes economic issues and social welfare concerns. State regulation in these non-fundamental areas of life is not subject to the strict scrutiny standard discussed above. Instead, the analysis involves asking simply whether the statute is rationally related to a legitimate government purpose. If it is, the statute will not be struck down on substantive due process grounds.

Because the hurdles this test presents are far lower and easier to surmount than those posed by the strict scrutiny standard, whether a regulated area is classified as fundamental or non-fundamental can be determinative of the substantive due process claim; most statutes regulating non-fundamental areas of life will pass muster, while most statutes subjected to the strict scrutiny standard imposed when fundamental rights are at stake will be struck down. For over 50 years now, the Court has refused to strike down any economic regulation on substantive due process grounds.

EXAMPLE: In an effort to aid coal miners injured on the job, Congress passes a law requiring mine operators to pay compensation to workers, even if those workers were terminated prior to the law taking effect. This economic regulation will be subjected only to the rational basis test, and will survive intact. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976).

EXAMPLE: In a certain part of Westernstate, pesticides sprayed on farms are often carried by winds to nearby residences. In an effort to ensure those residents will not unfairly have to carry the burden of the floating pesticides, Westernstate passes legislation requiring all farmers who use certain airborne pesticides to pay into a fund to be used to cover medical treatment of the affected neighbors. This economic regulation in a non-fundamental area of life will be subjected to the rational basis test and most likely will pass substantive due process analysis.

In addition to the lesser degree of scrutiny involved in non-fundamental due process cases, the burden of proof is not on the government when such regulations are at issue. We saw that for fundamental rights, it was the government’s burden to demonstrate the compelling nature of their interest and the necessity of the questioned regulation in achieving that goal. When non-fundamental rights are regulated, however, the burden is on the plaintiff to demonstrate that the regulation is not even rationally related to some legitimate goal. As the Court noted in Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976),

“It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.”

Citing Ferguson v. Skrupa, 372 U.S. 726 (1963); Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

The presumption of constitutionality in economic regulation cases goes even further than one might think. “Absent proof of arbitrariness or irrationality” on the part of the legislature, a court will not strike down an economic regulation. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 84 (1978), citing Ferguson v. SkrupaUsery v. Turner Elkhorn Mining Co. The Plaintiff’s burden, therefore, is to prove that the legislature’s decision to pass the regulation was arbitrary or irrational, a task not easily accomplished. It is no wonder, given the standard applied to economic regulations and the burden imposed on plaintiffs in these cases, that once the court deems some regulation to be “non-fundamental” it is unlikely to be struck down as a substantive due process violation.

EXAMPLE: Hilly Flats, Colorado, is the proposed site of a new nuclear power plant. In today’s highly litigious society and given the ever-increasing amounts awarded to plaintiffs in tort cases the state did not receive any bids from industry companies willing to build and operate the plant. The state legislature then passed an act limiting the liability which would be incurred by the builder/operator of the plant. Unless a plaintiff can demonstrate that the legislature did so arbitrarily or irrationally, the act will survive a substantive due process challenge.

In Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955), at issue was a law forbidding opticians from fitting or duplicating lenses in the absence of a prescription from an optometrist or ophthalmologist. One effect of the statute was that an optician could not place old lenses into a new frame for a customer. While this result may not itself be rational, the Court was not concerned, as

“the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”

Lee Optical at 487-488. Even though

“the Oklahoma law may exact a needless, wasteful requirement in many cases”

the fact that a state law

“regulatory of business and industrial conditions”

might happen to be

“unwise, improvident, or out of harmony with a particular school of thought,”

is insufficient to strike it down. See Lee Optical. The Court could not have been more clear in their opinion that the Oklahoma law was shortsighted at best, but refused to strike it down on substantive due process grounds. It is clear to see that the hurdles placed before plaintiffs in these cases are great indeed.

EXAMPLE: Southernstate citizens, like many other people in the U.S., are afraid of dentists. But Southernstate citizens also have reason to be particularly skeptical of dentists, as lately some large corporations which are engaged in selling retail merchandise to the public have opened “stores” which include retail merchandise and also a dental practice. In an effort to “free the profession from the taint of commercialism” and halt the rapidly increasing level of its citizens’ tooth decay, Southernstate bans any retail store from renting space to a dentist or otherwise permitting a dental office to occupy space in a retail store. Unless some plaintiff can demonstrate arbitrariness or irrationality, the law will be upheld. See Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608 (1935).