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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1087

1964]     STATE CIVIL RIGHTS STATUTES     1087

circumscribed by the rights of others as well as those of society at large. It is true that our Constitution proscribes the taking of liberty or property without due process of law. However, "in prohibiting that deprivation, [it] ... does not recognize an absolute and uncontrollable liberty [or property right]."76 The Constitution only requires that when t he state regulates these interests, it do so with due process.
   Under their police powers, our states have the authority to care for and advance the public welfare, a concept which is both broad and inclusive. "The values it represents are spiritual as well as physical, aesthetic as well as monetary."77 In short, the protection of "public safety, public health, morality, peace and quiet, law and order ... are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power [to regulate men's activities] and do not delimit it."78
   As the United States Supreme Court has noted:

     These correlative rights, that of the citizen to exercise exclusive dominion over property and freely to contract about his affairs, and that of the state to regulate the use of property and the conduct of business are always in collision. No exercise of the private rights can be imagined which will not in some respect, however slight, affect the public; no exercise of the legislative prerogative to regulate the conduct of the citizen which will not to some extent abridge his liberty or affect his property. But subject only to constitutional restraint the private right must yield to the public need.79
   The immediate question before us, therefore, reduces itself to this: Are laws prohibiting landlords, employers, and various other kinds of businessmen from discriminating on the basis of race, religion, or ethnic background in their business affairs "reasonable in relation to [their] ... subject and ... adopted in the interests of the community"?80 If so, they are valid exercise of the state's police power, and the restrictions they impose do not deprive affected individuals of their "life, liberty, or property without due process of law."
   In assessing whether a particular act is a valid exercise of the state's police power, it is well to remember that a court will not sit as a super legislature and substitute its judgment for that of the law-making body.81 Legislative enactments are deemed presumptively constitutional and only where it is shown that the legislative action is
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76 West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937). (Emphasis added.)
77 Berman v. Parker, 348 U.S. 26, 33 (1954).
78 Id. at 32.
79 Nebbia v. New York, 291 U.S. 502, 524-25 (1934).
80 West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937). The term "business affairs" as used here means transactions conducted for a quid pro quo. See note 103 infra.
81 Berman v. Parker, 348 U.S. 26 (1954); Queenside Hills Realty Co. v. Saxl,

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1964] STATE CIVIL RIGHTS STATUTES 1087 circumscribed by the rights of others as well as those of society at large. It is true that our Constitution proscribes the taking of liberty or property without due process of law. However, "in prohibiting that deprivation, [it] ... does not recognize an absolute and uncontrollable liberty [or property right]."76 The Constitution only requires that when t he state regulates these interests, it do so with due process. Under their police powers, our states have the authority to care for and advance the public welfare, a concept which is both broad and inclusive. "The values it represents are spiritual as well as physical, aesthetic as well as monetary."77 In short, the protection of "public safety, public health, morality, peace and quiet, law and order ... are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power [to regulate men's activities] and do not delimit it."78 As the United States Supreme Court has noted: These correlative rights, that of the citizen to exercise exclusive dominion over property and freely to contract about his affairs, and that of the state to regulate the use of property and the conduct of business are always in collision. No exercise of the private rights can be imagined which will not in some respect, however slight, affect the public; no exercise of the legislative prerogative to regulate the conduct of the citizen which will not to some extent abridge his liberty or affect his property. But subject only to constitutional restraint the private right must yield to the public need.79 The immediate question before us, therefore, reduces itself to this: Are laws prohibiting landlords, employers, and various other kinds of businessmen from discriminating on the basis of race, religion, or ethnic background in their business affairs "reasonable in relation to [their] ... subject and ... adopted in the interests of the community"?80 If so, they are valid exercise of the state's police power, and the restrictions they impose do not deprive affected individuals of their "life, liberty, or property without due process of law." In assessing whether a particular act is a valid exercise of the state's police power, it is well to remember that a court will not sit as a super legislature and substitute its judgment for that of the law-making body.81 Legislative enactments are deemed presumptively constitutional and only where it is shown that the legislative action is _________________________ 76 West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937). (Emphasis added.) 77 Berman v. Parker, 348 U.S. 26, 33 (1954). 78 Id. at 32. 79 Nebbia v. New York, 291 U.S. 502, 524-25 (1934). 80 West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937). The term "business affairs" as used here means transactions conducted for a quid pro quo. See note 103 infra. 81 Berman v. Parker, 348 U.S. 26 (1954); Queenside Hills Realty Co. v. Saxl,