                            [J-83-2016] [MO: Todd, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


LAWRENCE S. SHOUL,                          :   No. 64 MAP 2015
                                            :
                    Appellee                :   Appeal from the Order of the Adams
                                            :   County Court of Common Pleas, Civil
                                            :   Division, at No. 2014-S-721 dated
             v.                             :   February 24, 2015, exited February 26,
                                            :   2015.
                                            :
COMMONWEALTH OF PENNSYLVANIA,               :   ARGUED: December 6, 2016
DEPARTMENT OF TRANSPORTATION,               :
BUREAU OF DRIVER LICENSING,                 :
                                            :
                    Appellant               :


                                CONCURRING OPINION


JUSTICE WECHT                                         DECIDED: November 22, 2017
      I join in full the learned Majority’s analysis of Shoul’s cruel and unusual

punishment challenge. I concur in the result reached by the Majority in its rejection of

Shoul’s substantive due process challenge. However, I disagree respectfully with the

Majority’s analysis of substantive due process under the Constitution of the

Commonwealth of Pennsylvania.

      The Majority correctly employs a rational basis test in evaluating Shoul’s due

process claim, reaffirming that a commercial driver’s license is a privilege and not a

fundamental right. Plowman v. Pa. Dep’t of Transp., Bureau of Driver Licensing, 635

A.2d 124, 126 (Pa. 1993) (“Since a driver’s license is a privilege and not a fundamental

right, legislation affecting it must be evaluated under a ‘rational basis’ analysis.”).1

1
       It is well-established that driving is merely a privilege subject to reasonable
regulation by the state. See Plowman v. Com., Dep’t of Transp., Bureau of Driver
(continued…)
Moreover, even if we accept Shoul’s argument that the revocation of his commercial

license impacts his right to choose his profession, “the right to practice a chosen

profession is subject to the lawful exercise of the power of the State to protect the public

health, safety, welfare, and morals by promulgating laws and regulations that

reasonably regulate occupations.” Khan v. State Bd. of Auctioneer Exam’rs, 842 A.2d

936, 946 (Pa. 2004). Accordingly, the rational basis test undoubtedly applies.

       However, that test, as it has developed in Pennsylvania, is amorphous and

subject to inconsistent application.    The problem stems from this Court’s continued

reliance upon Gambone v. Commonwealth, 101 A.2d 634 (Pa. 1954). The language

from Gambone that is jurisprudentially problematic reads as follows:
       By a host of authorities, . . . Federal and State alike, it has been held that
       a law which purports to be an exercise of the police power must not be
       unreasonable, unduly oppressive or patently beyond the necessities of the
       case, and the means which it employs must have a real and substantial
       relation to the objects sought to be attained. Under the guise of protecting
       the public interests the legislature may not arbitrarily interfere with private
       business or impose unusual and unnecessary restrictions upon lawful
       occupations. The question whether any particular statutory provision is so
       related to the public good and so reasonable in the means it prescribes as
       to justify the exercise of the police power, is one for the judgment, in the



(…continued)
Licensing, 635 A.2d 124, 126 (Pa. 1993) (“Operating a motor vehicle upon a
Commonwealth highway is not a property right but a ‘privilege.’ As such, the
Commonwealth has the right to control and regulate its use. However, such regulation
must be tempered by adherence to the precepts of due process of law.”) (citations
omitted); Commonwealth v. Funk, 186 A. 65, 67-68 (Pa. 1936) (“The permission to
operate a motor vehicle upon the highways of the [C]ommonwealth is not embraced
within the term civil rights . . . . Although the privilege may be a valuable one, it is no
more than a permit granted by the state, its enjoyment depending upon compliance with
the conditions prescribed by it, and subject always to such regulation and control as the
state may see fit to impose.”); accord Hess v. Pawloski, 274 U.S. 352, 356 (1927) (“In
the public interest the state may make and enforce regulations reasonabl[y] calculated
to promote care on the part of all, residents and nonresidents alike, who use its
highways.”).



                              [J-83-2016] [MO: Todd, J.] - 2
      first instance, of the law-making branch of the government, but its final
      determination is for the courts.
Gambone, 101 A.2d at 636-37 (footnotes omitted).2

      And so was planted the notion that we judges are to weigh the “reasonableness”

of statutes.   This was more than a little bit of Lochner-izing.3     And yet, Gambone

continues to receive uncritical citation, and so, the precedent creeps on.

      True it is that Gambone was decided in 1954, a time when the constitutional

standards for analyzing due process claims still were being formed. See generally

David E. Bernstein, Lochner v. New York: A Centennial Retrospective, 83 Wash. U.

L.Q. 1469 (2005) (discussing the historical impact of Lochner on due process

jurisprudence). Lochner and cases of its genre were decided in an era during which the

Supreme Court of the United States, under the guise of protecting economic rights,

actively struck down state laws because it disagreed with the economic theory or

opinion of the legislatures that passed those statutes. See Sorrell v. IMS Health Inc.,

2
       In Gambone, this Court reviewed a state and federal due process challenge to a
Pennsylvania statute that prohibited display of price signs in measuring in excess of
twelve square inches at or adjacent to gasoline stations.
3
        See Lochner v. New York, 198 U.S. 45 (1905). The language of Gambone
mirrors that of earlier United States Supreme Court decisions from what has been
deemed the “Lochner era.” See, e.g., Adair v. United States, 208 U.S. 161, 178 (1908)
(“[A]ny rule prescribed for the conduct of interstate commerce, in order to be within the
competency of Congress under its power to regulate commerce among the states, must
have some real or substantial relation to or connection with the commerce regulated.”)
(emphasis added); Chicago, B. & Q. Ry. Co. v. llinois, 200 U.S. 561, 593 (1906) (“If the
means employed have no real, substantial relation to public objects which government
may legally accomplish,—if they are arbitrary and unreasonable, beyond the necessities
of the case,—the judiciary will disregard mere forms, and interfere for the protection of
rights injuriously affected by such illegal action.”) (emphasis added); Mugler v. Kansas,
123 U.S. 623, 661 (1887) (“If . . . a statute purporting to have been enacted to protect
the public health, the public morals, or the public safety, has no real or substantial
relation to those objects, or is a palpable invasion of rights secured by the fundamental
law, it is the duty of the courts to so adjudge, and thereby give effect to the
constitution.”) (emphasis added).



                              [J-83-2016] [MO: Todd, J.] - 3
564 U.S. 552, 591-92 (2011) (Breyer, J., dissenting) (“[In the Lochner] era . . . judges

scrutinized legislation for its interference with economic liberty. History shows that the

power was much abused and resulted in the constitutionalization of economic theories

preferred by individual jurists.”); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n

of N.Y., 447 U.S. 557, 589 (1980) (Rehnquist, J., dissenting) (“[In the Lochner era,] it

was common practice for this Court to strike down economic regulations adopted by a

State based on the Court’s own notions of the most appropriate means for the State to

implement its considered policies.”).4

       It was not until the year following this Court’s decision in Gambone that the

United States Supreme Court finally interred Lochner’s economic substantive due

process doctrine. In Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483 (1955),

the High Court observed that “[t]he day is gone when this Court uses the Due Process

Clause of the Fourteenth Amendment to strike down state laws, regulatory of business

and industrial conditions, because they may be unwise, improvident, or out of harmony

with a particular school of thought.” Id. at 488. The High Court explained that “[a] law

need not be in every respect logically consistent with its aims to be constitutional. It is

4
       During the “New Deal,” the United States Supreme Court shifted toward its
modern, deferential approach to substantive due process. The Lochner era’s end is
generally associated with the High Court’s decision in West Coast Hotel Co. v. Parrish,
300 U.S. 379 (1937), wherein the Court upheld a minimum wage law in a departure
from earlier cases in which it had found such laws to violate due process by interfering
with the freedom of contract. In Parrish, the Court stated as follows:
       Liberty under the Constitution is . . . necessarily subject to the restraints of
       due process, and regulation which is reasonable in relation to its subject
       and is adopted in the interests of the community is due process. . . .
       Liberty implies the absence of arbitrary restraint, not immunity from
       reasonable regulations and prohibitions imposed in the interests of the
       community.
Id. at 391-92 (quoting Chicago, B. & Q. Ry. Co. v. McGuire, 219 U.S. 549, 565 (1911)).



                               [J-83-2016] [MO: Todd, J.] - 4
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.” Id. at 487-88. This is the

rational basis test as it is commonly understood, at least at the federal level. See Usery

v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976) (“[T]he burden is on one

complaining of a due process violation to establish that the legislature has acted in an

arbitrary and irrational way.”); Richardson v. Belcher, 404 U.S. 78, 84 (1971) (“If the

goals sought are legitimate, and the classification adopted is rationally related to the

achievement of those goals, then the action of Congress is not so arbitrary as to violate

the Due Process Clause of the Fifth Amendment.”); Ferguson v. Skrupa, 372 U.S. 726,

731-32 (1963); Heffner v. Murphy, 745 F.3d 56, 79 (3d Cir. 2014) (citing, inter alia,

United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)) (“Under rational basis

review, a statute withstands a substantive due process challenge if the state identifies a

legitimate state interest that the legislature could rationally conclude was served by the

statute. . . . A governmental interest that is asserted to defend against a substantive

due process challenge need only be plausible to pass constitutional muster; we do not

second-guess legislative choices or inquire into whether the stated motive actually

motivated the legislation.”) (internal citations and quotation marks omitted).

       Oddly enough, as the federal courts evolved toward a “rational relationship”

standard, this Court nonetheless has persisted in employing the language of Gambone

to superintend legislation, sometimes striking laws and at other times upholding them.

Compare Nixon v. Commonwealth, 839 A.2d 277, 290 (Pa. 2003) (holding that Act 13

did not have “real and substantial relationship” to Commonwealth’s interest in protecting

elderly individuals from victimization, and thus, Act 13 violated employees’ due process

right to pursue particular occupation) and Pa. State Bd. of Pharmacy v. Pastor, 272

A.2d 487, 494 (Pa. 1971) (holding that statute making it unlawful for pharmacist to




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advertise prices of dangerous or narcotic drugs bore “no substantial relation” to objects

sought to be obtained by its enactment) with Khan, 842 A.2d at 947 (“As long as there is

a basis for finding that the statute is rationally related to a legitimate state interest, the

statute must be upheld.”); Laudenberger v. Port Auth. of Allegheny Cnty., 436 A.2d 147,

156-57 (Pa. 1981) (“The touchstone of substantive due process . . . is whether the law

in question is rationally related to a legitimate state goal”) (emphasis added) and Adler

v. Montefiore Hosp. Ass’n of W. Pennsylvania, 311 A.2d 634, 642 (Pa. 1973) (“As the

reasonableness of the challenged policy is amply supported by the record, we find no

Due Process violation.”).

       Although our decisions relying upon Gambone purport to apply the rational basis

test, the plain language of Gambone departs significantly from the teachings of the

modern federal cases. We confronted this discrepancy in Nixon. In the face of the

Commonwealth’s argument for a more deferential rational basis test, i.e., “the rational

basis test used in equal protection challenges and in due process challenges brought

under the United States Constitution,” Nixon, 839 A.2d at 288 n.15, we insisted that

“[a]lthough the due process guarantees provided by the Pennsylvania Constitution are

substantially coextensive with those provided by the Fourteenth Amendment, a more

restrictive rational basis test is applied under [the Pennsylvania] Constitution.” Id.

       But why? Nixon based its reasoning on nothing other than Pastor, 272 A.2d at

490-91 (observing that “Pennsylvania . . . has scrutinized regulatory legislation perhaps

more closely than would the Supreme Court of the United States.”), a 1971 opinion

which was guided by Gambone and other earlier cases. Thus, Nixon merely circles

back to the same Lochner deficiency. It is time to acknowledge that this less deferential

test is imprudent. It is undoubtedly true that our judicial role empowers us (and, when

called upon, requires us) to assess the constitutionality of laws passed by the




                               [J-83-2016] [MO: Todd, J.] - 6
legislature. But we are not authorized to judge the necessity or expediency of those

laws. It is equally true of this Court as it is of the federal courts that we do not “sit as a

superlegislature to weigh the wisdom of legislation, and we [should] emphatically refuse

to go back to the time when courts used the Due Process Clause to strike down state

laws . . . because they may be unwise, improvident, or out of harmony with a particular

school of thought.” Ferguson, 372 U.S. at 731-32 (footnotes and internal quotation

marks omitted).    I am confident that, Gambone notwithstanding, most Pennsylvania

jurists have long since forsaken Lochner and have long understood our duty to defer to

the General Assembly when analyzing laws that impact ordinary rights and privileges.5

       In point of fact, this Court has embraced a more deferential approach to due

process in several decisions both before and since Nixon. See Driscoll v. Corbett, 69

A.3d 197, 215 (Pa. 2013) (“The mandatory retirement provision for judicial officers is

subject to deferential, rational-basis review under both equal protection and due

process, and it satisfies that standard.”); Commonwealth v. Duda, 923 A.2d 1138, 1151

(Pa. 2007) (“[I]n evaluating [a Due Process challenge], we employ the rational basis

5
       This view is, of course, not limited to Pennsylvania jurists. Interestingly, Judge
Henry J. Friendly of the United States Court of Appeals for the Second Circuit—the son-
in-law of Gambone’s author, Chief Justice Horace Stern—once authored a draft opinion,
never published because the case became moot, in which he also endorsed a
deferential judicial approach:
       The contest on this, as on other issues where there is determined
       opposition, must be fought out through the democratic process, not by
       utilizing the courts as a way of overcoming the opposition[,] . . . clearing
       the decks, [and] thereby enabl[ing] legislators to evade their proper
       responsibilities. Judicial assumption of any such role, however popular at
       the moment with many high‐minded people, would ultimately bring the
       courts into the deserved disfavor to which they came dangerously near in
       the 1920’s and 1930’s.
A. Raymond Randolph, Before Roe v. Wade: Judge Friendly's Draft Abortion Opinion,
29 Harv. J.L. & Pub. Pol'y 1035, 1042 (2006) (alterations in original).



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test, under which a statutory classification will be upheld so long as it bears a

reasonable relationship to accomplishing a legitimate state purpose. In undertaking this

analysis, courts are free to hypothesize grounds the Legislature might have had for the

classification.”) (citation omitted); Commonwealth v. Burnsworth, 669 A.2d 883, 889

(Pa. 1995) (“To [perform the rational basis analysis], we have set forth a two[-]step

approach.    First, we must determine whether the challenged statute is designed to

further a legitimate state interest or public value.    If it is, we must then determine

whether the statute is reasonably related to accomplishing the articulated state interest.

Essentially, we must address whether the statute has some relationship to the interest

which the legislature seeks to promote and whether that relationship is reasonable.”)

(citations omitted).6




6
       The cases are legion. See Plowman, 635 A.2d at 127 (“As to the second prong
of the rational basis test, we need not specifically conclude that the subject statute will
be absolutely successful in accomplishing its objective. The legislation must bear a
rational relationship to the interest that the legislature seeks to promote. In analyzing
any statute under the ‘rational basis test,’ we must determine whether the legislation
has some relationship to the identified state interest and whether that relationship is
objectively reasonable. . . . To satisfy this prong, however, it is enough that we identify
potential benefits to our citizens as a result of the promulgated legislation.”);
Commonwealth v. Mikulan, 470 A.2d 1339, 1342 (Pa. 1983) (“[I]t is beyond dispute that
the General Assembly has a compelling interest in protecting the health and safety of
the travelers upon our highways and roads against the ravage caused by drunken
drivers, and that the means chosen to serve that interest . . . is rationally and
reasonably related to achievement of that legitimate goal.”) (emphasis omitted);
Mikulan, 470 A.2d at 1348 (Zappala, J. concurring) (“[T]he statute in question has a
rational relationship to a valid state objective. The requirements of due process have
clearly been met to the extent that the legislature has acted in an area properly the
subject of its police power, and has not done so arbitrarily.”); Laudenberger, 436 A.2d at
157 (citing Rogin v. Bensalem, 616 F.2d 680 (3d Cir. 1980)) (“The touchstone of
substantive due process, as with equal protection, is whether the law in question is
rationally related to a legitimate state goal, or whether the state action arbitrarily works
to deny an individual of life, liberty, or property.”).



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      Although we are of course the arbiters of constitutionality, we do no violence to

that role when we defer prudentially to legislative policymaking. The Gambone/Nixon

standard validates and encourages judicial overstepping, allowing courts to usurp the

legislative role and to strike down laws merely because they are imperfect, unwise, or

under-inclusive. Surely, some very large proportion of legislative work could fall within

one or more of these categories. But republican democracy is a messy business. It is

time to cease adherence to the outdated and overbroad language of Gambone in

applying the rational basis test in Pennsylvania.

      Justice Oliver Wendell Holmes, Jr. dissented in Lochner.           As usual, Justice

Holmes put it better than others could, then or now:
      This case is decided upon an economic theory which a large part of the
      country does not entertain. If it were a question whether I agreed with that
      theory, I should desire to study it further and long before making up my
      mind. But I do not conceive that to be my duty, because I strongly believe
      that my agreement or disagreement has nothing to do with the right of a
      majority to embody their opinions in law. It is settled by various decisions
      of this court that state constitutions and state laws may regulate life in
      many ways which we as legislators might think as injudicious, or if you like
      as tyrannical, as this, and which, equally with this, interfere with the liberty
      to contract. Sunday laws and usury laws are ancient examples. A more
      modern one is the prohibition of lotteries. The liberty of the citizen to do
      as he likes so long as he does not interfere with the liberty of others to do
      the same, which has been a shibboleth for some well-known writers, is
      interfered with by school laws, by the Post [O]ffice, by every state or
      municipal institution which takes his money for purposes thought
      desirable, whether he likes it or not. The 14th Amendment does not enact
      Mr. Herbert Spencer’s Social Statics. The other day we sustained the
      Massachusetts vaccination law . . . . United States and state statutes and
      decisions cutting down the liberty to contract by way of combination are
      familiar to this court. Two years ago we upheld the prohibition of sales of
      stock on margins, or for future delivery, in the Constitution of California.
      The decision sustaining an eight-hour law for miners is still recent. Some
      of these laws embody convictions or prejudices which judges are likely to
      share. Some may not. But a Constitution is not intended to embody a
      particular economic theory, whether of paternalism and the organic
      relation of the citizen to the state or of laissez faire. It is made for people
      of fundamentally differing views, and the accident of our finding certain
      opinions natural and familiar, or novel, and even shocking, ought not to


                              [J-83-2016] [MO: Todd, J.] - 9
       conclude our judgment upon the question whether statutes embodying
       them conflict with the Constitution of the United States.
       General propositions do not decide concrete cases. The decision will
       depend on a judgment or intuition more subtle than any articulate major
       premise. But I think that the proposition just stated, if it is accepted, will
       carry us far toward the end. Every opinion tends to become a law. I think
       that the word ‘liberty,’ in the 14th Amendment, is perverted when it is held
       to prevent the natural outcome of a dominant opinion, unless it can be
       said that a rational and fair man necessarily would admit that the statute
       proposed would infringe fundamental principles as they have been
       understood by the traditions of our people and our law.
Lochner, 198 U.S. at 75-76 (Holmes, J., dissenting) (citations omitted).7 More recently,

Justice John Paul Stevens recalled his former colleague, Justice Thurgood Marshall,

explaining the constitutional standard succinctly: “The Constitution does not prohibit

legislatures from enacting stupid laws.” N.Y. State Bd. of Elections v. Lopez Torres,

552 U.S. 196, 209 (2008) (Stevens, J., concurring). They have done so before. They

will do so again. They have that right, and they answer to the electorate for its exercise.

       The more deferential standard has been recognized by venerated American

jurists and wisely embraced at the federal level.        I cannot endorse the Majority’s

adherence to the Gambone standard as interpreted by Nixon.               I agree with the

Majority’s ultimate conclusion that 75 Pa.C.S. § 1611(e) does not violate due process

because it is rationally related to the legitimate state interest of deterring drug-

trafficking. But, in my view, the Majority’s analytical route to that result countenances

undue encroachment upon legislative prerogative. While I recognize that Gambone and

Nixon remain on the books, this Court should abandon those precedents and embrace

the federal rule that Justice Holmes foreshadowed more than a century ago.


7
        See also Letter from Oliver Wendell Holmes, Jr., to Harold J. Laski,
(Mar. 4, 1920), in Holmes-Laski Letters, at 249 (Mark DeWolfe Howe ed., vol. 1) (1953)
(“[I]f my fellow citizens want to go to Hell I will help them. It’s my job.”).




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