FERGUSON v. SKRUPA 372 U.S. 726 (1963)

This decision is often cited as a leading modern example of the Supreme Court's permissive attitude toward economic regulation challenged as a violation of substantive due process.

Kansas prohibited "the business of debt adjusting" except as an incident of the practice of law. The Court unanimously upheld this statute against a challenge to its constitutionality. Justice hugo l. black wrote for the Court. Any argument that the business of debt adjusting had social utility should be addressed to the legislature, not the courts. "We refuse to sit as a "super legislature to weigh the wisdom of legislation." The Court had given up the practice, common during the years before west coast hotel co. v. parrish (1937), of using "the "vague contours' of the Due Process Clause to nullify laws which a majority of the Court believed to be economically unwise." Justice Black, unlike many of his brethren, carried this same view of the judicial function into other areas of constitutional interpretation; see his dissents in griswold v. connecticut (1965) and harper v. virginia board of elections (1966). In Ferguson Justice john marshall harlan concurred separately on the ground that the law bore "a rational relation to a constitutionally permissible objective." Apparently Justice Harlan wanted to maintain some level of judicial scrutiny of economic regulations, even if it were only the relaxed rational basis standard, and thought the Black opinion suggested a complete abdication of the judicial role in such cases.

Kenneth L. Karst
(1986)