ABSTRACT
National and state constitutions stipulate specific procedural protections for persons accused of crimes plus the general protection of due process of law for fairness in both criminal and civil proceedings. The due process clauses had no substantive content, and the judicial creation of liberty of contract was an invasion of the legislative power. Substantive due process is the label for holding unconstitutional the regulatory statutes which the court finds to be unreasonable interferences with liberty or property. Roscoe Pound correctly concluded that constitutional liberty of contract was a judicial usurpation of legislative power. Adding the votes in the four state Supreme Courts, minimum wage legislating for women was viewed constitutional by twenty-seven justices and viewed invalid by only two justices. There were some overruled cases in which the Supreme Court had voided state regulation of business practices. State regulation of rates or prices was first upheld by the Supreme Court in Munn v. Illinois in 1876, with two justices dissenting.
