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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1088

1088     IOWA LAW REVIEW     [Vol. 49

arbitrary or unreasonable will the courts invalidate it.82 This is because

a state is free to adopt whatever ... policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. ... If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary or discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio.83

   The second-class treatment accorded Negroes and other minority groups in many parts of our national life is a matter of common knowledge. More specifically, the existence of discrimination in such essentials as housing, employment, and public accommodations has been amply noted. Also demonstrated was the substantial injury suffered by our society-at-large because of the denials of equal opportunity in these areas.
   As a result, legislation geared to secure minority groups equal access to these essentials is well within the competence of the state--so long, that is, as the mans used are "reasonable in relation to its subject." The reason for this is that such laws are clearly related to the advancement of the community's welfare. They would eliminate the demonstrable injury to society that is produced by the exclusion of our minorities from equal access to the necessities of lief. It must also be admitted that the mans contemplated here, prohibitions of discriminatory business conduct by landlords, employers, and certain other kinds of businessmen, is quite reasonable in relation to this legitimate end. Antidiscrimination laws are no more than a direct proscription of the very conduct producing an injury the state has a right to avoid. And in the words of the United States Supreme Court:

   Only those lacking responsible humility will have a confident solution to problems ... attributable to differences of race, color, or religion.  This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the States' power. That the legislative remedy might not in practice mitigate the evil, or might itself raise new problems, would only manifest once more the paradox of reform. It is the price to be paid for the trial and error inherent in legislative efforts to deal with obstinate social issues. "The science of government ... consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise."84

   Antidiscrimination laws dealing with housing, public accommodations, and employment do not differ in any vital respect from other social legislation that has been upheld by the courts in this country. There is a great deal of well-established precedent for the proposition
_________________________
328 US.. 80 (1946; Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922); see Hetherington, State Economic Regulation and Substantive Due Process of Law (pts. 1-2) 52 Nw. U.L. Rev. 13, 226 (1958); Paulsen, the Persistence of Substantive Due Process in the States, 34 MINN. L. REV. 91 (1950).
82 See note 81 supra and note 85 infra.
83 Nebbia v. New York, 291 U.S. 502, 537 (1934).
84 Beauharnais v. Illinois, 343 U.S. 250, 262 (1952).

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1088 IOWA LAW REVIEW [Vol. 49 arbitrary or unreasonable will the courts invalidate it.82 This is because a state is free to adopt whatever ... policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. ... If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary or discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio.83 The second-class treatment accorded Negroes and other minority groups in many parts of our national life is a matter of common knowledge. More specifically, the existence of discrimination in such essentials as housing, employment, and public accommodations has been amply noted. Also demonstrated was the substantial injury suffered by our society-at-large because of the denials of equal opportunity in these areas. As a result, legislation geared to secure minority groups equal access to these essentials is well within the competence of the state--so long, that is, as the mans used are "reasonable in relation to its subject." The reason for this is that such laws are clearly related to the advancement of the community's welfare. They would eliminate the demonstrable injury to society that is produced by the exclusion of our minorities from equal access to the necessities of lief. It must also be admitted that the mans contemplated here, prohibitions of discriminatory business conduct by landlords, employers, and certain other kinds of businessmen, is quite reasonable in relation to this legitimate end. Antidiscrimination laws are no more than a direct proscription of the very conduct producing an injury the state has a right to avoid. And in the words of the United States Supreme Court: Only those lacking responsible humility will have a confident solution to problems ... attributable to differences of race, color, or religion. This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the States' power. That the legislative remedy might not in practice mitigate the evil, or might itself raise new problems, would only manifest once more the paradox of reform. It is the price to be paid for the trial and error inherent in legislative efforts to deal with obstinate social issues. "The science of government ... consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise."84 Antidiscrimination laws dealing with housing, public accommodations, and employment do not differ in any vital respect from other social legislation that has been upheld by the courts in this country. There is a great deal of well-established precedent for the proposition _________________________ 328 US.. 80 (1946; Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922); see Hetherington, State Economic Regulation and Substantive Due Process of Law (pts. 1-2) 52 Nw. U.L. Rev. 13, 226 (1958); Paulsen, the Persistence of Substantive Due Process in the States, 34 MINN. L. REV. 91 (1950). 82 See note 81 supra and note 85 infra. 83 Nebbia v. New York, 291 U.S. 502, 537 (1934). 84 Beauharnais v. Illinois, 343 U.S. 250, 262 (1952).