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A Constitutional History of the United States
Chapter XLIX - The Fourteenth Amendment
by McLaughlin, Andrew C.

The constitutional history of the decades since the period of Reconstruction is the history of the adaptation of constitutional principles to rapidly-changing economic and social conditions. Such adaptation or development may, of course, be said to be the core of all constitutional history, for changes in the structure and activities of the body politic are brought about by the needs of society continuously undergoing modification. But it is peculiarly and strikingly true of the last quarter of the nineteenth century and the early years of the twentieth. America was for the first time plainly faced with the problems begotten by modern industrialism; though to some extent the issues had appeared before, it is only an exaggeration to say that not until after the Civil War were the people conscious of them, and not until then did the problems come obviously within the sphere of what is now constitutional history. The industrial revolution of the eighteenth century seemed to take effect in America and produce its serious problem of adjustment many decades after the countries of Europe, notably Great Britain, were aware of the task and had entered on efforts of remedial legislation.

This tardiness may be accounted for in sundry ways. One reason doubtless was that the job presented to the people had been to take possession of the continent and to exploit its natural resources; and of that task much remained after the war was over. The main resource was land itself. There were wide stretches of open and unoccupied territory; the west offered its allurement; there was freedom and, mayhap, profit in the farm and the lumber-camp; there was escape from the drudgery of the factory and the tyranny of the machine. The population of the country was predominantly rural or semi-rural. Men were engaged in handling nature's machine, the soil.[1] Railroads and factories had, it is true, even before the Civil War, affected no small number of people; but life was still comparatively simple and old-fashioned. Household manufacturing was to some extent carried on until after the middle of the century; and there may be men living to-day who can remember seeing their grandfathers or even their fathers as they sat by the fire on a winter evening and carved out with knife or drawshave a new ax-helve or fork-handle. In other words, America had not as yet become industrialized.

And yet we can hazard the guess that, had it not been for the slavery question and the war, the nation would have faced some of the problems of modern industry and labor at an earlier date. The social movements which expressed themselves in politics toward the end of the thirties indicate a partial realization of the new situation and of new social needs. But, as a matter of fact, the people were then beginning the task, not of meeting the new perplexities begotten by machinery, but of getting rid for once and all of the oldest method of industry known to man. Slavery, where the capitalist owned the laborer, presented a labor problem as well as a race problem. The abolition of slavery was viewed as a matter of morality and indeed of religion; clearly enough the real job, which for a generation occupied much of the attention and absorbed the emotional capacity of the people, was thrust upon them by an outworn system of labor. The nation was modernizing itself by casting off a system of labor as old as the pyramids. We probably cannot overemphasize the importance of that fact, accompanied, as it was, with sectional strife, with all the bitterness of war and its aftermath, and with the sordidness which appears to be the inevitable residue of war. We must remember too, keeping the whole epoch in mind, that the nation had been burdened with the task of saving itself from disruption, and to accomplish such a task is quite enough for one generation. People cannot do everything at once or distribute their emotions with a free and easy hand.

If we are interested then, as we must be, in the question of why the problems of very modern life arose so late and why the decades passed without any large view of the changing world and without any conscious preparation for meeting the perplexities that were so soon to come, we answer by pointing to the fact of tardy industrialization and to the tasks which people were actually undertaking. Party strife, based in considerable measure upon the old issues of slavery, war and nationalism, continued after the war was finished. To the extent that the slavery question had entered the field of social morality and justice, attention to slavery had naturally brought into clear relief the value of freedom; men were induced to indulge in further glorification of their own freedom and, likewise, to suppose that, if the laborer were not owned by the capitalist, he was free. But the truth is, as said on earlier pages of this work, the agitation against slavery was but one of those movements for liberalism and social righteousness — humanitarianism — which were transforming the modern world. If one should desire therefore to deal with the purely speculative, one would expect to find men, upon the extirpation of slavery, also anxious, at the first opportune moment, to reach out the hand of helpfulness to the serfs of the machine and the factory.

Whether such expectations be justified or not, the problems of social control of industry were delayed until slavery was disposed of. After the war was over the politician went merrily ahead; industries grew into giants; wage-earners increased in numbers; corporations occupied strategic positions; but the politician and many a common man seemed not to grow weary of lambasting the rebel or, on the other hand, of pointing to the vulgarities of Reconstruction, and they let the days go by. Passions of the past were fostered rather than forgotten; men did not see the new problems assembling like clouds on the horizon; they waited till the storm had broken. The gift of prophecy, keen appreciation of an impending future, realization of an actual present, are not the possession of most statesmen — or of anyone else.

As long as the country remained rural, or largely so, and retained the sentiments begotten by the frontier and free land, the people were in no state of mind to face the complexities of factory labor or the problems of congested areas. The farmer is proverbially individualistic; and the farm of the olden days was largely self-supporting and self-dependent. The farmer probably, felt his isolation to be more than it actually was; and it is significant that the countrymen, in actual fact, were the first class after the war was over to realize their relationship to certain results of modern industrial enterprise. But, using the reaper and raising huge crops of wheat to feed the eastern laborers and the workmen of Europe, the farmer did not for a time see that he was being tied up in a vast economic system and was being enfolded, as were others, in a new and rapidly developing industrial regime. His mind was taken up with visions of new wealth garnered by his own toil from his own wide-flung acres. Awakening to the realities of the new social and industrial world was also delayed and rendered difficult by the common American traditional belief in the virtue of freedom unhampered by regulation or interference; the very essence of Americanism was that the individual should be left alone to fight his way forward and pursue happiness. This sentiment retarded the rise of a sense of social responsibility and a realization of social interdependence long after interdependence of sections and classes was a very actual fact.

The war had established nationalism as a legal fact beyond all questioning; industry had become largely national in scope and character; and by the fourteenth amendment individual liberty was given national protection; local legislation had, in certain vital respects, to be consonant with a national norm, laid down by a central authority, the federal courts. By the subjection of certain types of state action to federal supervision or check, the land lost something of the values of federalism as a system of national organization; perhaps the states might have been treated as so many experiment-stations where devices for meeting new conditions could be tested by experience, by trial and error. But speculations of this kind do not aid us much. The facts are plain.

Before many years, but generally speaking not before the end of the century, some persons were speaking almost contemptuously of a fixed Constitution which placed its barriers in the way of popular legislation or of what passed for popular demand. Why, it was asked, should an intelligent and progressive people be bound by the shackles of an eighteenth-century Constitution? The presence of this sentiment among those eager for change, who advocated the freedom of the people-at-large to act through their governments without hampering restraint, is a matter of considerable significance. The sentiment was commonly expressed with the dogmatic clarity of the self-assured. The fact that the strongest advocates of "democracy" were beginning to look askance at the obstacles set up by a written Constitution shows us the changes wrought by the passing years. In the eighteenth century a fixed constitution was the ideal of men ending or hoping to end the long struggle between superimposed government and personal safety; by the end of the nineteenth century the fixed Constitution, with the balanced system so dear to the men of earlier days, was considered the stronghold of conservatism, which was secured by complexity of the governmental system.

The task of adapting constitutional law to the new conditions rested on the shoulders of justices in the courts. The fourteenth amendment placed new restrictions upon the states, and questions as to the extent and character of these restrictions naturally arose. The limits had to be marked out by the courts, not by the political branches of the government acting by positive legislation. The amendment, though intended at its inception to protect the freedmen, was general in its terms, and the significance of its phrases had to be determined by the courts in passing upon concrete cases. The difficulty involved in working out the scope of the amendment arose out of the fact, that protections were thrown about personal liberty at the very time when there was new need of determining what was the nature or the limits of liberty. Legislation of a drastic character, running counter to older and cherished beliefs, was to many persons a violent wrench, not to be endured without considerable perturbation of spirit. When indicating the respective limits of personal liberty and of governmental control, the courts had to perform their task in legalistic fashion — not by entering upon a complete break with old precepts and principles of law, but by recognizing the reality of new conditions and by adapting old principles to new facts. The task was not an easy one. The nature of this task and some illustrations of how it was accomplished are presented in the following pages.

A few words are needed — and only a few words — concerning the extent to which the negro has been protected and his rights assured by the fourteenth amendment as interpreted by the courts. In cases discussed in a previous chapter, the Supreme Court had declared the amendment to be a guarantee of protection against the act of the state itself and was not intended to restrain or to punish individual offenders.[2] Therefore, if a negro claimed that his rights were invaded, he must be prepared to show that the invasion was by the state or by some officer clothed with state authority and acting under color of such authority.[3] A number of cases arose in which a negro asserted that he had been deprived of his rights because the jury which tried and convicted him was composed entirely of white men. The first case involved the constitutionality of a West Virginia law which confined the right of jury service to whites; there was a clear-cut instance of state action. The Court held the law unconstitutional inasmuch as the amendment "implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property." [4] In a similar case arising under a law of Delaware a like principle was announced.[5] So far the negro is assured equality by court decisions. But the assurance is of no substantial value to a negro facing a jury made up entirely of white men, unless it can be shown that there was intentional and quasi-official discrimination; an impaneling officer can, without showing vast and intelligent circumspection, succeed uniformly in summoning a jury of white men.[6] In the Delaware case, however, the Court said that a general practice of excluding negroes raised a presumption of denial of equality, and that, on this ground, the judgment should be set aside.

Of somewhat greater importance is the matter of discrimination in other ways. Does the amendment prohibit setting aside the negroes as a separate class? Does mere classification deprive him of the equal protection of the law? This general subject of equality, whether it bears upon negroes or other persons, presented its difficulties; but the courts have uniformly decided that classification is not by any means necessarily unlawful; illegality exists where classification has no reasonable basis but is essentially arbitrary.[7]

A case of importance bearing on the right of a state to treat negroes, in their social relations with whites, as a distinct class was the case of Plessy v. Ferguson.[8] The matter at issue was the constitutionality of a Louisiana statute requiring railroad companies to provide separate but equal accommodations for white and colored passengers — commonly called the Jim Crow Car Law. The law was declared to be constitutional. Giving the opinion and decision of the Court, Justice Brown made this significant statement: "The object of the [fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of state legislatures in the exercise of their police power." The opinion referred to the common instance of establishing separate schools for white and colored children, which had been held valid in several northern states by the state judiciary. This sentiment, thus clearly announced by the Court, seems like a far cry from the position taken by Congress twenty-one years earlier in passing the Civil Rights Act, and far from the enthusiastic idealism of the earlier period. Here we find expression of a new, though not entirely new, social philosophy: "If the two races", said the Justice, "are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals.... If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane." The most expressive phrase in the above quotation is "the nature of things"; the Court was unwilling to enforce an idealistic interpretation and ignore the realities of social facts.

The courts have recognized the validity of classification in the conduct of education. A state may prohibit a private school from educating white and negro students together.[9] Under circumstances justifying the discrimination, a school district may use public money for the maintenance of a high school for white students only.[10] We may perhaps infer in general, therefore, that, though reasonable classification may be made, unfair discrimination in educational privileges will not be upheld; but presumably the fact of unfairness would have to be very evident or the courts would not hold the allotment of public money unconstitutional.

So little has the negro profited by the fourteenth amendment through judicial determination, so signally inoperative has it proved to be in establishing or maintaining social equality, that even such brief consideration as that given in the preceding paragraphs appears unnecessary. One is tempted to say that, for the main purposes in the minds of its originators, the amendment has been a complete failure. But the amendment has probably had moral effect, even when court decisions seemed to be of little or no avail. In all likelihood, without the amendment, legislation like the "black code" of Mississippi would have stood on the state statute books or been placed there; and though some persons may to-day think such enactments wise, the classification thus provided for would not now stand judicial scrutiny for a moment. This fact remains — the essentials of civil liberty are not interfered with by state enactments; and reasonable opportunities for growth and prosperity are checked, if at all, not by formal legal enactments, but by racial barriers and like hindrances which are known full well both north and south of Mason and Dixon's line.

For fifty years or more, the relationship of the freedman to the fourteenth amendment has been practically lost to view. On the other hand its interpretation and its application to social problems have brought scores of cases for judicial decision. The first case in which the essential nature and meaning of the new amendment were discussed by the Supreme Court was decided five years after its adoption.[11] In many ways the problems involved were crucial and critical. The decision was rendered by a divided Court, four to five; and among the four dissenters was Justice Field, of Democratic antecedents, who ranged himself with those asserting the effect of the amendment to be much more sweeping, more destructive of state autonomy, than the majority of the Court admitted. Nevertheless the decision and especially the opinion of the Court as given by Justice Miller appeared to put such a construction upon the amendment that the Court would not in future be troubled by a multitude of controversies. The justices little knew what the future had in store.

The case turned upon the constitutionality of a Louisiana statute which gave to a corporation the exclusive right for a term of years to maintain, within a certain area, a place for slaughtering animals to be sold for meat. In the course of the decision, the Court thought it advisable to place its interpretation on the first sentence of the fourteenth amendment as well as on other portions, though an interpretation of those words was only incidentally germane to the real issue involved. The sentence in question declared: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The purpose, of course, was to overrule the Dred Scott case in so far as that decision denied to negroes the status of citizenship. The Court made plain the existence of double citizenship; the words quoted are a clear indication of a distinction between citizenship in the state and citizenship in the United States.[12] Unless we consider Taney's decision as good law when he announced it, the amendment was, therefore, in its first sentence declaratory and affirmative, intended to allay doubts and not to impose new restrictions;[13] it added nothing to the body of constitutional law, for when the Constitution came fresh from the hands of its framers it included this idea of double citizenship.

The Court closely associated the opening sentence of the amendment with the sentence immediately following: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". The attention of the majority and of the dissenting justices also was largely directed to the construction of those words. The majority, finding in the amendment a clear distinction between state and United States citizenship, held that the amendment in that clause protected only the rights of the latter. If we assume that, in the framing of this portion of the amendment[14] — the portion referring to privileges and immunities — , the framers and their supporters had in mind conditions in the south and were intent on making unlawful the discriminatory legislation of the southern states (even though the words were of general and not sectional application), they were in this respect unfortunate. One need not expect courts to construe laws so as to accord with legislative intentions, if the law as enacted says something not in accord with those intentions. The amendment plainly prohibits state encroachment upon privileges and immunities of United States citizenship, and the question therefore turned upon what these were.

No court has ever attempted strictly to define and enumerate the privileges and immunities belonging either to state or United States citizenship; once and again, general descriptions have been given; and furthermore, it must be said, even in this case the Court was not, to say the least, over-explicit or pellucid in its exposition.[15] It did emphatically deny that the amendment, by the words in question, swept into the field of federal power the duty to protect the whole catalogue of civil rights and liberties belonging to the citizens of a free state. The amendment, therefore, in this respect was only declaratory; for at no time in the past could anyone properly have asserted a state's right to intrude upon rights inherent in United States citizenship. "If this inhibition", said Justice Field in his dissenting opinion, "... only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage." [16]

In later years there were some persistent though futile attempts to extend this clause of the amendment beyond the limits set by the Court in this critical decision. Attorneys in their arguments sought to have the Court declare that the privileges and immunities included the specific rights provided for in the first eight amendments.[17] This was an interesting example of misdirected acumen; for, as we have already seen, the eight amendments are restrictions on the United States government, not on the states; the privilege of a citizen, for example, not to have cruel and unusual punishment inflicted upon him is a privilege which he can claim against any law or process of the United States government. If anyone claims that a punishment provided for by state law is cruel and unusual, he may, perchance, be protected by the later portions of the first section of the fourteenth amendment, but not under the privileges and immunities clause.[18]

In light of later decisions it seems strange that in the Slaughter-House Cases the Court did not discuss at greater length due process of law and the equal protection of the laws. After saying that the argument for the plaintiffs did not much press the contention that they had been deprived of property without due process or had been deprived of equal protection, the Court contented itself with declaring: "... under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana ... be held to be a deprivation of property within the meaning of that provision." [19] Concerning the equality clause the Court declared, "We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision." This proved a vain hope.

The decision was indicative of a reaction against the extreme centralizing tendency of the years immediately preceding. Though the opinion of the majority was chiefly directed to the interpretation of "privileges and immunities of citizens of the United States", its attitude toward the whole amendment was decidedly conservative: "And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?" [20] The answer was in the negative. This at least was clear: the decision left the states, as they were before, in charge of the general field of legislation for controlling and regulating their internal concerns. They were left in charge of the police power, the right to legislate for the health, safety, and well-being of the people. And yet, as we have already seen, the Civil Rights Act, which was passed soon after the decision in the Slaughter-House Cases, assumed the right of Congress to legislate directly for the preservation of equality; and, ten years after the Slaughter-House Cases, the Court found it necessary in the Civil Rights Cases to pronounce the final and conclusive principle so plainly that the dullard could understand.

Only in subsequent years did the full force of the amendment come to light; and, as will appear, the due process of law clause gave basis for continuous and plentiful attacks by litigants alleging the invalidity of state legislation. Many decisions of the Court dealt with matters which the Slaughter-House Cases seemed to have committed finally to the discretion of the states themselves. Five years after Justice Miller gave the opinion in the leading case we have been considering, he commented in another case on the surprising number of cases with which the docket of the Court was "crowded" and in which the Court was asked "to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law." [21] The increase in the number of cases was largely due to state enactments in quantity and variety hitherto unknown.

Toward the end of the sixties and at the beginning of the next decade, there was unrest among the people of the agricultural states, especially those states in the upper part of the Mississippi valley. The Granger movement, which was a protest against existing industrial conditions in that region, resulted in the passing of laws to restrict or regulate the rates charged by railroads and elevators. The constitutionality of this legislation was contested before the federal Supreme Court in a series of cases commonly called the "Granger Cases" (1877), which are conspicuous, not to say epochal, in the development of constitutional law.[22] In the railroad cases there was a passing reference to the contract clause of the Constitution and to the effect of provisions in state constitutions declaring the right to alter or repeal corporate charters; and there was some brief discussion also of interference by the states with interstate commerce; but the main point at issue was the right of the state to prescribe rates.

The most significant position of the Court was given in Munn v. Illinois,[23] a case in which there was no question of a charter contract. The case turned upon the validity of an Illinois statute prescribing rates for the elevating and storage of grain. The elevators on the Chicago River held a strategic position. It appeared that fourteen warehouses, though owned by about thirty persons, were controlled by nine business firms, and that rates for storage were annually published in advance. "Thus", said the Court, "it is apparent that all the elevating facilities through which these vast productions 'of seven or eight great States of the West' must pass on the way 'to four or five of the States on the seashore' may be a 'virtual' monopoly." It certainly appeared to the farmer that he and his business were in the grasp of a great combination which left to him the hard work while it reaped the profit.

Could such a condition of things be remedied by state legislation without violating the fourteenth amendment? Although the right to limit or check state legislation of this character could be made to rest only on the due process clause of the amendment, the Court entered upon no searching examination of the phrase.[24] The prohibition of the amendment was held to be as old as civilized government and to be found in Magna Charta — meaning by this, presumably, that due process of law and "law of the land" are of identical import. Until the "adoption of the Fourteenth Amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances they may, but not under all. The amendment does not change the law in this particular: it simply prevents the States from doing that which will operate as such a deprivation." Referring to the common law, "from whence came the right which the Constitution protects," the Court found that when private property is " 'affected with a public interest, it ceases to be juris privati only.'" "Property", the Court went on to say, "does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created." The right to regulate the charges of grain elevators was put on the same plane as the right to fix the charges of the common carrier, the miller, the ferryman, the innkeeper, the wharfinger, and other persons pursuing "a public employment" or " 'a sort of public office' ". Such regulation and control were held to be a proper exercise of the police power of the state.

There was strong dissent in the Court. Justice Field wrote a vigorous dissenting opinion in which Justice Strong concurred. "There is no magic", he said, "in the language, though used by a constitutional convention,[25] which can change a private business into a public one, or alter the character of the building in which the business is transacted." If the principles announced by the majority of the Court are sound law, the dissentients declared, there is no constitutional protection for private rights and "all property and all business in the State are held at the mercy of a majority of its legislature." They distinguished between the business thus regulated by the Illinois act and other businesses referred to by the majority of the Court as substantial precedents: "In all these cases [relied on by the majority to support the Illinois act], except that of interest on money, which I shall presently notice, there was some special privilege granted by the State or municipality...."

Outside of the court-room there was approval and dismay. Lawyers of the older school were perturbed and in intellectual rebellion. To the managers of big business, waging commercial warfare and cherishing the principle of laissez faire, interference with industry appeared to be nothing short of wanton tyranny, while the public on the other hand came gradually to feel that uncontrolled industry left the common man in fetters, which constantly grew heavier and more burdensome.[26]

The demand for relief by the farmers of the midwest marks the beginning of a contest which ere long entered upon other phases. After the "Granger Cases" there was no doubt of the right of the state to regulate and control certain enterprises, which were as a rule conducted by corporations. Though this general principle was clear, its application, the determination of just how far legislative control could legally go, was not quickly or easily reached. In the Munn case the Court may have been influenced by the extraordinary conditions at Chicago, where the storage of grain was scarcely less than a complete monopoly. But a few years later, an act of the North Dakota legislature, regulating the price of elevating and storing grain, was sustained, though, it appeared, anyone might build an elevator in that region for a few hundred dollars and be as independent as Robinson Crusoe.[27] The Court thus again justified regulation by placing the business in a certain category.

At no time has there been any attempt to determine with minute exactitude at what stage a business does become thus affected, or with any definiteness to describe its character and thus justify placing it on a certain list.[28] An observer is strongly inclined to say that the whole matter would have been simplified and made intelligible, if the Court had at the beginning said, that, when a business has reached such a stage and assumed such a character that there appeared to be a plain public need for legislative control of rates, enactments to that end would be constitutional. The decision in the "Granger Cases" would then have rested on the same general principle as that on which the Court later based its decisions in passing upon the scope of the police powers of the state. But such a declaration in 1877 would have shocked the conservative sense of the community; and in accord with characteristic legal method, seeking precedents and practices as grounds for a decision, the Court reached back two hundred years and more and discovered them in Lord Hale's De Portibus Maris. Justice Holmes in a dissenting opinion fifty years later (1927) said "that the notion that a business is clothed with a public interest and has been devoted to the public use is little more than a fiction intended to beautify what is disagreeable to the sufferers." [29]

For nearly twenty years after the adoption of the amendment, there appeared no tendency to give the first section any very serious weight. In spite of strenuous opposition of the dissenting justices, the decisions appeared to be, almost literally, reading the amendment out of court, (1) Even before the Civil Rights Cases (1883), the amendment had been interpreted quite inevitably to mean that state action, and state action only, was referred to in the first section. (2) It was made fairly clear in the Slaughter-House Cases that primary legislation by Congress for regulating the internal affairs of the state was not justified by this section. (3) While there were indications of a willingness to protect the negro from discriminatory state legislation, there was no desire so to construe the amendment as to bring industries under the protection of the national government. (4) The privilege and immunity clause, so much relied on, had been interpreted to be in its main effect only an announcement of a principle always inherent in the constitutional system. (5) In the Munn case the Court announced that, if a business was in a certain category, rates for service could be prescribed by the legislature; and legislative discretion, it appeared, was unlimited.

But while it might appear that the amendment was emasculated by judicial interpretation and read out of court, as a matter of fact the courts were soon burdened with responsibility; if no ground for congressional legislation could be found in the general phrases purporting to safeguard life, liberty, property, and equality, then, if these general phrases were to have any marked effect, the responsibility for checking state legislation lay with the courts. In the eighties, judicial duties and obligations began to appear in formidable array, supported by shock troops of ingenious and argumentative counsel. To this matter we may now turn our attention, and first examine, more fully than we have done as yet, the question of equality.

The Court appeared for a time to have less difficulty in applying the principle of equality than that of due process. We have already seen that the Court, in passing upon the rights of negroes and on the question of race discrimination, laid down a leading and basic principle. But the declaration in favor of equality was not interpreted as a defense of negroes alone. The case of Yick Wo v. Hopkins (1886) [30] involved the validity of an ordinance forbidding any person to operate a laundry within the city of San Francisco in frame buildings, unless he should receive permission from the authorities. The decision is important (1) because the Supreme Court recognized an alien as a "person", whose rights are protected by the amendment,[31] and (2) because it recognized the fact that a law, not discriminatory on its face, may be so administered as to work discrimination and deny the equality of persons.[32] But it is well to notice that the Court in an earlier ' decision had upheld an ordinance of San Francisco which prohibited laundry work, within prescribed areas, during the night;[33] there appeared to be reasonable basis for the classification.

The decisions, coming early in the history of judicial interpretation, are almost sufficient in themselves to mark out the principles on which the Court has stood. Many other cases and decisions followed, but in those just mentioned we find (1) a recognition of the police power of the state to regulate business enterprises and to classify them, and also (2) a plain intimation that the classification must have a basis in reason and must not be founded on willful and unfair distinction.[34] Though a certain number of clear principles were established and fully embodied in well-recognized law, nevertheless what is and what is not discriminatory and unfair legislation, and hence unjust legislation, must depend on the judgment of the justices.

As the readiness of the Court to pass upon the reasonableness of classification appeared in the cases we have just considered, so, in the eighties, we find the beginnings of a determination to pass upon the problem of what was "due process" and whether liberty and property had been unreasonably encroached upon. That not every process which the legislature might prescribe must necessarily be considered due process was announced fairly early in the history of constitutional law. In 1856 the Supreme Court, interpreting the fifth amendment, said, "It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government...." [35] It was, therefore, the duty of the Court to decide in a given instance whether a process provided for by an act was due process or not; if it were not, then the law was not law because it has been passed in violation of constitutional restriction. The principle, when applied to state statutes and to the prohibitions of the fourteenth amendment, opened up an important field of judicial activity and responsibility.

The Court moved at first rather circumspectly.[36] There was naturally and inevitably a desire to test the validity of legislation by the principles and the traditional procedure of the common law. It is impressive to see the justices examining the common law procedure of ancient date, referring to Magna Charta and attempting to discover whether certain methods were in vogue or within the purview of the common law in the time of King John or his successors.[37] But this adherence to established principles, in the large sense, was soon associated with a readiness to announce the doctrine that, if such fundamental principles were protected, a mere change in procedure would not be sufficient to violate the constitutional restriction; in other words, a new process, however novel, might be considered valid. This principle was clearly laid down by Justice Matthews in 1884.[38] A provision of the constitution of California which allowed prosecution begun by information after examination by a magistrate, instead of by indictment by a grand jury, was upheld. "The proposition of law we are asked to affirm", said the Court, "is that an indictment or presentment by a grand jury, as known to the common law of England, is essential to that 'due process of law' ", which the Constitution secures and guarantees. This position the Court refused to take; it refused to consider only the antiquity of a form of procedure; the real question was whether the new form was calculated to preserve elementary rights. The opinion quoted with approval the statement made by Justice Johnson in 1819 (Bank of Columbia v. Okely, 4 Wheaton 235, 244): "As to the words from Magna Charta, incorporated into the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice." [39]

This determination to examine essentials and not mere form, and this willingness to recognize the needs of new governmental methods are in some ways especially indicated by what the courts said about the authority of administrative boards and commissions. The principle appears to be fairly conclusively summarized by Justice Brewer giving the opinion of the Court in the early twentieth century. "Indeed, it not infrequently happens that a full discharge of their duties compels boards, or officers of a purely ministerial character, to consider and determine questions of a legal nature. Due process is not necessarily judicial process." [40] There has been, therefore, a studious effort to maintain the substance of justice and the protection of essential rights, but a recognition also that practical necessity demanded acceptance of the power of an administrative body to act, and often to act conclusively, within the range of its functions and its responsibilities. The courts have, however, by no means surrendered to administrative officers the final right to determine whether their decisions or procedure is due process.[41]

What would be due process — in the sense of method or form of procedure — in one instance would not be due process in another. For example, a dwelling may be demolished on the order of a firewarden, to stop the spread of a conflagration, and the official is not bound to call the owner into consultation or to have the decision of any tribunal to justify his decision. The courts will however insist, if the question is brought before them, upon the owner's right to a subsequent hearing concerning the necessity or the reasonable ground for the firewarden's order. But though private property may be destroyed because of immediate danger to the community, property cannot be taken for public use without compensation to the owner. In other words, there is a distinction between the proper exercise of two different functions of government — the police power and eminent domain. This elementary distinction, which scarcely needs elaboration, was laid down in a leading case in 1851 by Chief Justice Shaw of Massachusetts: [42] "Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient." Distinguishing eminent domain from the police power, he defined the latter as "the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same." [43]

Though the words "police power" were used occasionally in the earlier nineteenth century, no very definite connotation was made evident. Taney described the power in general and very comprehensive terms — so general, in fact, that his description can scarcely be called a definition: "But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions." [44] But when restrictions were placed upon the states, when the federal government through its judiciary was set up as the guardian of life, liberty, and property, the statement needed clarification. The courts have consistently refused to define the power by such positive and precise terms as definitely to circumscribe it; they are willing to describe it in general terms, but prefer to pass upon concrete cases and thus to indicate its scope. They define it by application.

Before the middle of the eighties, as we have seen, the restrictive provisions of the fourteenth amendment, and especially the due process clause of the first section, appeared not very important. The Slaughter-House Cases and the "Granger Cases" seemed to be conclusive barriers against any attempt to subject state legislation to any control that would satisfy the learned counsel who were pestering the Court with ingenious arguments, seeking a decision which would relieve their clients from the burden of uncomfortable statutes. The Court might have grasped a principle out of the air, absorbed it from the nebulous spirit of free institutions as Justice Miller did in the famous case of Loan Association v, Topeka; [45] but the use of such a source presented obvious difficulties. The nature of that opinion is, in fact, an illuminating proof of how far the Court was at that time from any realization that the fourteenth amendment offered concrete grounds upon which the substance and effect of state legislation could be successfully challenged. And the time was still some distance ahead when the Court found itself able to gather the spirit of free institutions and of personal liberty under the protecting wings of "due process".

As early as 1878, Justice Miller, giving the opinion of the Court, said: "In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded." [46]

The pressure, however, did not abate. A statement similar to that made by Justice Miller was repeated by Justice Field seven years later, and he declared in no uncertain terms that the Court was not a "harbor where refuge" could "be found from every act of ill-advised and oppressive State legislation." [47] But the time was rapidly approaching when the Court found itself to be just that kind of a harbor. A turning-point came soon after Field's statement was made. Just why it came at that time, it is difficult to say. But we must take into account the new activities of state administrative boards and the increase of state legislation, the social unrest which though not extreme was real, the activity of the Knights of Labor, and other manifestations of zeal for the abandonment of the old order, all of which may have been instrumental in leading the Court toward a position calculated to protect personal and property interests from what appeared to be unwarranted assault.

In 1887 the Court upheld a Kansas prohibition act.[48] This it could scarcely help doing in light of various previous decisions of the state judiciary. It was necessary in this case to meet the contention that restraint of the individual's right to make, eat, and drink what he might choose was contrary to the most elementary principles of American constitutionalism. Announcing the power of the state to pass legislation of this character, the Court said that the "Power to determine such questions, so as to bind all, must exist somewhere;" and that "Under our system that power is lodged with the legislative branch of the government." Here we find the tendency, which is seen in the Munn case and certain others following that decision, to rely upon legislative discretion and to hesitate about bringing up general statements in the Constitution to restrict legislative competence. But that fact need not detain us now; more significant is the declaration concerning the necessary limits on the police power: "There are, of necesity, limits beyond which the legislation cannot rightfully go.... If, therefore, 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."

The power of a court to "adjudge" soon proved to be a matter of immense consequence. According to this principle, a state statute cannot be successfully defended simply by saying that it falls within the police power of the state; under the guise of exercising this power, the state cannot arbitrarily deprive a person of life, liberty or property without due process of law; a statute must stand the test of reasonableness, and, as the coming years showed, it must be judged by its actual, and not alone by its ostensible purpose, to promote the public welfare and by its substantial adaptation to that end. More of this will be seen in later pages.

We have seen in a previous chapter a decision by the New York court in 1856 which in substance declared that an act summarily depriving an individual of his property in intoxicating liquor constituted a deprivation of property without due process. The decision did not rest on the nature of the method or the process, but on the substantial effect of the law — the substance of the law not the procedure, was the gist of the matter. This case did not as a rule carry weight in other states, where many decisions were rendered upholding anti-liquor statutes. Taney used the doctrine in the Dred Scott case, but there was no other federal Supreme Court decision of a similar kind until 1870, in the first Legal Tender Case.[49] That case, however, was overruled the next year, and so the precedent was not very valuable. But in the eighties, property rights in railroads were playing much the same role as property in intoxicating liquor had played in the days before the war. And, in consequence, the Court began to announce the doctrine that legislative authority was circumscribed and that property could not be confiscated by fixing unreasonably low charges for service.

It is difficult to trace with complete assurance the course of the Court's reasoning, though the result is plain. The following propositions may not be entirely valueless: I. If administrative and remedial processes may be changed, provided the fundamental rules for the security of private rights are observed, it is not a far step to a declaration that fundamental rights, not the process or procedure, are the main thing, and that the Courts therefore have the duty to protect those rights, no matter how precise and elaborate the process may be. The pith and marrow of the due process restriction on legislative power were protection of property and liberty, not alone the safeguarding of process, which was only ancillary. II. If a legislature cannot peremptorily transfer the property of A to B and if a person's property cannot be seized except under public necessity or because it is a nuisance, and if it cannot be taken for the public use without compensation,[50] then a statute prescribing confiscatory railroad rates, a statute amounting to a confiscation because it deprives the road of earnings, must be considered a violation of due process and hence void. In the early decisions, when the doctrine was announced or distinctly foreshadowed, there was some consideration of the question of whether procedure had been adequate; the function, the authority and the procedure of commissions received attention; but as we shall see in a moment, the question of procedure became after a time a matter of comparatively little interest. We must now trace out this development in greater detail.

Were there no limits on the power of the state to regulate rates and charges of a business affected with a public interest? A warning came in 1886, the year before the Kansas liquor case which we have already briefly discussed. In this case the Court showed a willingness — though rather a reluctant willingness — to recognize or announce the right of the judiciary to examine the effect of a prescribed rate: the power of limitation or regulation is not without limit; it is not the power to destroy; limitation is not the equivalent of confiscation; under the pretense of regulating rates the state cannot require a railroad company to carry persons or property without reward, nor can it do that which in law amounts to a taking of private property without just compensation, or without due process of law.[51] Neither in this case nor in the prohibition case did the Court actually pronounce a state act invalid; the announcements were rather in the nature of a warning; the Court was safeguarding itself against the supposition that there were no limits. On the whole the reservation thus announced was rather mild; for there may be many steps between regulation or limitation of rates on the one hand and thorough confiscation on the other; but there is evidence of a belief that totally to deprive a road of earnings would be an unconstitutional exercise of authority. In 1890 the Court passed upon a decision by the Supreme Court of Minnesota, which pronounced the determination of rates by a commission to be final and conclusive and declared that the law of the state allowed no inquiry concerning the equality or the reasonableness of the rates.[52 ] The federal Court refused to accept the principle that the law, thus interpreted, was constitutional: "The question of the reasonableness of a rate of charge ... is eminently a question for judicial investigation, requiring due process of law for its determination." This opinion and the facts in the case show how close was the connection between process and substance: the legislature could not deprive a corporation of its right to a judicial examination of the reasonableness of a commission's rule or order — and this examination really might be considered in itself a process or procedure; but if the Court should find the rates fixed by the commission to be unreasonable, the decision in practical effect amounted to a protection of the property, despite any amount of elaborate procedure.

Three justices dissenting denied the rightfulness of the Court's position and insisted that a commission, "though not a court, is a proper tribunal for the duties imposed upon it." [53] In this declaration of the powers of the Court and in the opinion of the dissenting justices we find a matter of unusual significance. Are judicial tribunals less likely than commissions to decide justly and reach sound conclusions? Could not a decision by a commission, if it were reached by careful examination of facts, and if it gave reasonable opportunity for protest or discussion, be held to be a decision based on due process? The immense development of administrative law and of administrative tribunals in the last few decades leads one to think that, had conditions been different in the nineties, had there not been so much eagerness for control of corporations and on the other hand so much resentful objection to governmental regulation, the courts might have contented themselves with insisting on reasonable and fair methods; and, in the absence of any showing of willful abuse of power, they might have accepted the conclusions of the commission as final. Had the position of the minority been that of the Court, the courts would have been relieved of immense labor; but as it was, the duty of deciding on the reasonableness of charges was thrown upon the uncomplaining shoulders of federal justices. Justice Brewer, describing the duties of the judiciary, said in 1894 that courts "do not engage in any mere administrative work...." [54] That can scarcely be denied as an abstract principle; but there came to the courts in the course of time difficult and intricate questions concerning the value of property and the effect of rates.

In discussing the right to examine the question of reasonableness of rates and charges the Court seemed inclined for a time to make a distinction between the decision of a commission and the determination by a state legislature.[55] But such a distinction could not be maintained. In 1894 rates fixed by a commission were declared invalid and in the same case the judicial right to examine legislative rates fixed by the legislature was once again announced but not at once acted upon: there is no doubt of the power of the courts "to inquire whether a body of rates prescribed by a legislature or a commission is unjust and unreasonable, and such as to work a practical destruction to rights of property, and if found so to be, to restrain its operation".[56] The whole matter was conclusively settled in 1898, when the Court, saying once again that rates for transportation are primarily to be fixed by the state, declared the question "whether they are so unreasonably low as to deprive the carrier of its property without such compensation as the Constitution secures, and therefore without due process of law, cannot be so conclusively determined by the legislature of the State or by regulations adopted under its authority, that the matter may not become the subject of judicial inquiry." [57]

At a comparatively early day, a corporation was held to be a person as the word is used in the fourteenth amendment. There is no need of our questioning the rightfulness of this position; the courts did not labor over the problem and they had substantial precedent to stand upon;[58] but the appearance of corporation cases in great numbers is nevertheless an important fact, for it brings to our attention the actual, if not the legal, distinction between the old-fashioned belief that a person is entitled to his liberty and to the possession of his property and the newer belief that large capitalistic interests are likewise to be protected. There in reality was the heart of the modern problem.

Toward the end of the century Justice Peckham, giving the Court's opinion, defined liberty in fairly comprehensive terms: "The liberty mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned." The Justice, however, went on to say that by giving general definitions the Court did not intend to hold that in no such case can the state exercise its police power; "When and how far such power may be legitimately exercised ... must be left for determination to each case as it arises." [59] Of significance is the Court's emphatic declaration of the right of an individual to make all proper contracts in relation to his calling or trade. The right to contract was, therefore, a liberty protected by the Constitution; but again the significant word is "proper"; for what may be proper or improper must be a question for judicial determination; and there must arise question of the relationship of legislation to public needs and welfare.

The year after this extensive definition, with the reservation abovementioned, was given, there arose an important case involving the validity of a Utah statute forbidding the employment for more than eight hours per day of workmen in mines or in smelters for reducing or refining ores.[60] The statute was upheld as a reasonable exercise of power to protect the health of the employees. The Court referred to Allgeyer v. Louisiana, and the doctrine of freedom of contract there laid down, but declared this right to be subject to certain limitations which the state may lawfully impose. This power, the Court said, had been greatly expanded in its application during the past century because of the enormous increase in the number of dangerous occupations or occupations so far detrimental to the health of employees as to demand special precautions for their well-being and protection or for the safety of adjacent property. But of special interest is the Court's recognition of the fact that under certain conditions there is not in reality freedom of contract; proprietors and laborers do not stand upon an equality, and their interests are to a certain extent conflicting. Significant also is the statement that we are not living in a static world, and that lawmakers and courts may take that fact into consideration. As we have seen the Court in earlier cases insisting that in matters of procedure there should be no need of clinging obstinately to ancient practices, so now we find a distinct declaration of the necessity of adapting the substance of law [61] to new conditions of society, and, particularly, to the new relations between employers and employees. That was a bold step forward.

In the Utah case which we have just considered, the reasonableness of the regulation of hours rested, in part at least, on the fact that the labor was carried on under peculiarly dangerous conditions. Seven years later, the Court gave a decision which attracted much attention and, in some quarters, condemnation. It declared invalid a New York statute prescribing the number of hours during which work in bakeries could be carried on. The majority of the Court could find no reasonable connection between the health and well-being of the workmen and the limitation of the hours of labor, and no sound reason for interfering with the right of contract and with the right of a laborer to work as long as he might choose.[62] Just why the case should have brought forth so much public discussion, it is difficult to say, certainly, however, the explanation can be gathered chiefly from the conditions of the times, the unusually intense interest in labor problems and labor legislation, and from the general movement toward a bettering of social conditions by legislative regulation. In this case, as a matter of fact, the doctrine of reasonableness announced in the Kansas liquor case, but not there applied, reached its apogee. Until the outbreak of the World War, progressives and social reformers, finding for a time a champion in President Roosevelt, were zealous in their advocacy of change and often critical of the judiciary.

Could the employment of women be controlled by special regulation? This question was presented to the Court and passed upon in 1908.[63] An Oregon law forbidding the work of women in laundries or factories more than ten hours per day was attacked as a wanton interference with the right to contract, with freedom of the person and with equality. The case aroused public discussion, partly because the position of women in modern industry was then a matter of considerable public interest, and also because an attempt was made by the counsel defending the statute to establish reasonableness by calling the Court's attention to scientific data.[64]

In argument defending the validity of the law, Mr. Brandeis, counsel in the case but afterwards a Justice of the Court, called attention to a list of enactments both in this country and in Europe limiting the working hours of women; and he presented extracts from reports of committees, commissions, inspectors of factories, etc., all tending to show that long hours of work are dangerous for women primarily because of their physical organization. This was an attempt to place judicial decisions upon a scientific basis or upon explicit information, not to leave the matter of the suitability or the necessity of restriction to the unaided judgment of the judges; it could not be presumed that the justices possessed judicial cognizance of matters of physiology, save perhaps the knowledge which might be considered the common possession of all intelligent persons. Upholding the statute, the Court gave some attention to the citations and the information presented by Mr. Brandeis and declared them to be significant of a widespread belief that woman's physical structure and functions justify special legislation; limitations imposed by the act were imposed not alone for the benefit of the workers but largely for the benefit of all. Since that time the desirability of finding an informational basis for judicial cognizance of social needs has been variously asserted. The courts, it is said, should have social facts as well as scientific information, not vague personal opinions, upon which to rest their decisions when questions of social conditions and betterment are before them; sociological jurisprudence demands the grasp of realities of social need.[65]

We have seen in the New York bakery case a decision of the Court, denying the validity of an act because, in the judgment of the Court, there was no good ground for limiting hours of labor in such employment. In 1917, an Oregon statute forbidding labor in any mill or factory more than ten hours a day, with certain exceptions, was held valid.[66] In this case there was no attempt to justify the validity upon the peculiarly dangerous or unwholesome character of the employment; the general terms of the statute would make such an attempt futile. The Court sustained the statute on the ground that the legislature and the state supreme court had found such a law necessary for the preservation of health of the employees, and in the absence of facts to support the opposite conclusion, the federal Court would accept the legislative judgment. This obviously was a decided step in advance, and Chief Justice Taft, at a later time, said that he had "supposed that the Lochner Case was thus overruled sub silentio."[67] For us, the importance of this decision rests in the evidence of a tendency, prompted partly by social pressure, to move on toward the recognition of a right to legislate in general within a field of regulation, when once a particular piece of legislation, though involving special features, is recognized as valid.[68] We must, it appears, assume that the Court came without much misgiving to accept labor legislation restricting hours, and that common practices, a general acquiescence, a public desire, finally make the justices less hesitant and less wary. We must, however, conclude that the courts, before upholding such legislation as we have been considering, must find or assume some social gain which may be reasonably expected from the invasion of individual liberty of contract.

An interesting example of the way in which changing industrial conditions and developing public sentiment express themselves in legislation and bring critical problems of constitutional law to the decision of courts appears in the workingmen's compensation or employers' liability acts, which began to be passed about the beginning of the twentieth century. By the common law as it was announced and applied by the courts in the absence of statutory modification, the workman under ordinary conditions, even though injured through no fault of his own, was at decided disadvantage when seeking to recover damages from an employer. But there was a growing belief in the public mind that in modern industry the liberty and freedom of contract did not in plain fact exist. It was easy enough to say that if a workingman did not like his employment because it was dangerous, he could give it up and enter another; but such complacency was, of course, serviceable only to those who were not immediately affected by the perils of industry. The prevailing principles of the law, reformers now asserted, were not suited to modern industrial labor; the employer or society as a whole should bear the burden and the expense resulting from accidents in factories; the law should be simplified; the employer should include in cost of production the amount expended for accident insurance or the amount paid out of his own coffers. American tardiness in entering upon legislation to this end illustrates once more the date at which the country met face to face the problems of the machine age.

In accordance with the established principles of law, commonly prevailing at the end of the nineteenth century, an employer was under no obligation to make compensation to a workman for injury in the course of employment, if the injury had been caused by the negligence of a fellow workman, or if the injured employee had been guilty of contributory negligence even though the employer be also at fault; furthermore, the workman was held, when he entered upon employment, to have assumed the risks of the business — such risks as were naturally incident to the employment. This matter, as we have said, had awakened public attention, and there was much comment, when a compensation act of New York was held invalid by the Court of Appeals of that state.[69]

After the decision the state adopted an amendment to the constitution, and an act based upon the amendment was upheld by the state court.[70] Of course if the act were in violation of the fourteenth amendment, the state constitution could not make it lawful. Though the Court sought to distinguish in some particulars the second act from the previous one, it is probably fair to say that public opinion as to what constituted justice, and what was reasonable interference with the private property and the liberty of contract, really made the second decision all but inevitable. The federal Supreme Court gave a final and conclusive decision in 1917: "The close relation of the rules governing responsibility as between employer and employee to the fundamental rights of liberty and property is of course recognized. But those rules, as guides of conduct, are not beyond alteration by legislation in the public interest. No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit." [71]

Indicative of the changed attitude toward the rights of employers in relations with labor are cases dealing with wages, though most of these cases did not attract such wide public interest as the employers' liability cases. The Court upheld a state statute making it unlawful under certain conditions, when wages of workmen in coal mines were determined on a quantity basis, to use screens or other devices to reduce wages; and the Court declared that the legislature being familiar with local conditions, is, primarily, the judge as to the necessity of such enactments.[72] Another act requiring that orders on company stores be redeemable in cash was likewise upheld.[73] To the reader these decisions may appear at the present day to be of no great significance, but they strongly illustrate the disappearance of the old doctrine of laissez faire. To the lawyers of the previous generation — the generation in active service in the last quarter of the nineteenth century — anything in the nature of what was called sumptuary legislation was thought to be repugnant to the first principles of American constitutional liberty.

To illustrate with any considerable detail the extent to which courts have been called upon to pass upon the propriety or suitableness of state legislation is not possible for a volume of this scope and purpose. From the point of view of constitutional history, the main facts are evident: the developing social order and the consequent attempts by legislation to regulate and control individual conduct and individual use of property in a degree at variance with older habits; the obligation of the judiciary to carry out the mandate of the fourteenth amendment; the occasional complaint from those demanding immediate recognition of state legislation which they declared to be desirable; the endeavor of the courts to attach judicial decisions to the principles of the past rather than to inaugurate a revolutionary break in the continuity of constitutional law; by giving a new significance and force to the term "due process" the judiciary assumed burdensome obligations; there was and had to be, an acknowledgment of the fact that constitutional law was itself a developing science, or at least, that it was not necessary for law to stand forever bound by the conceptions of the eighteenth century. The courts in a certain class of cases shifted their emphasis from a special regard for individual rights to a fuller appreciation of public needs.

It may be that there was in the first quarter of the twentieth century a growing tendency to give greater weight to a legislature's sense of what is just and of what makes for the public well-being, rather than to have the case turn distinctly upon what the Court — or more properly the individual justices — held to be fair and reasonable or the reverse. The Court certainly did not stand still. Those justices of the federal Supreme Court, who were commonly spoken of as the "liberal" justices — perhaps we should say the less conservative — , showed a willingness to recognize, more fully than others, the necessity of taking into consideration public opinion and the changing social order; and more especially were they inclined to question the criteria by which the reasonableness of legislation should be judged.[74] Whatever we may say, however, the duty of passing upon reasonableness was assumed by the Court; and there was no abandonment of its authority to reject as unconstitutional any statute obviously unfair, based on improper discrimination or violation of due process. There was frequent complaint by the laymen to the effect that the conservatives on the bench were retarding social progress.

For a hundred and thirty-five years, criticism of the judiciary has been common, though not quite continuous; and we need not look upon the complaints of the last forty years as unique. In the recent period the Supreme Court had a supremely difficult task. The historian and the jurist are entitled to question the wisdom of its decisions; and they may even go so far as to deplore the whole series of pronouncements which appeared to delay unduly the progress of legislation intended to better social conditions. There has been a renewed attack upon the whole theory of judicial review and more especially upon the extent of its actual exercise. The courts, the critics declared, (and the statement was sometimes made in somewhat similar terms by certain dissenting judges) set up as a standard of constitutionality their own opinions concerning the advisability of legislation; and they sought (under the cover of "due process") either to maintain old-fashioned theories of economic and social order, or to put forth and make effective standards of everlasting right and justice; and thus the justices made declarations not dissimilar in essence to the theories of natural rights so familiar to the ears of men of three or four generations ago. The courts are therefore charged by implication with abandoning their earlier refusal to check legislation by the principles of natural rights and with surrendering their older position and the primary fortress of their actual power — their determination to enforce only the plain mandates of the Constitution. Some such position was naturally the inevitable result of their assuming authority to judge of the propriety and reasonableness of legislation; and the consequence was the tendency to uphold what the judges individually believed right and justice and reasonableness to be.[75] The remedy for this, if we may assume with the critics that a remedy is necessary, is unquestionably a wide, intelligent and sympathetic appreciation of the nature of social processes and of a developing social order. The reader of history need not be told that immutable principles of social competence and rectitude cannot be embodied in any series of decisions, however learned they may be.

The very fact of the Court's setting up "reasonableness" as a standard, by which to judge the constitutionality of social legislation, allows a modification or an accommodation to new conditions of society and to a changing belief concerning the essence of liberty. Such a standard is far better than any rigid definition of right and justice or any highly technical formulas which give no opportunity for development. The great task of the courts is to preserve the valuable and all-important imponderables of constitutional liberty; and until we are ready to sweep aside altogether the judicial power to perform this task, we must depend on the wisdom and integrity of the justices. If, as already said, they sometimes appear to obstruct social progress as far as progress can be obtained by legislation, the obstruction cannot be more than temporary. Probably the student of history, though he is justified in positive assurance that society cannot and will not stand still, is likely to think that hasty alteration of constitutional principles is more dangerous than delay and reasoned circumspection.

And yet withal, the declaration that social improvement has been unduly retarded is open to question. It requires no vast amount of critical insight to discern the rapid transformations which have taken place. And there is one thing more to be said: if the courts appear to have been perilously active and too ready to pronounce acts void, this activity was partly induced by a mass of hastily-drawn legislation and by no small number of enactments that appeared to bear no relation to the public good. If "a standing rule to live by" is to have effective meaning, legislators also need to have their share of appreciation of their responsibility in a developing society.

[1] Indeed, if one examines the statistics, he is tempted to say that, despite the rapid and sweeping development of industrial enterprise in the east, the main job of America for two decades and more after the war was to occupy the continent rather than to build up gigantic factories and multiply the products of machinery. Professor Turner placed the disappearance of the frontier at about the year 1890, and presented impressive figures to show the enormous increase of farm acres and cultivated areas in the years after the war, while the machine age also was rapidly developing.

[2] United States v. Cruikshank, 92 U. S. 542 (1876); Civil Rights Cases, 109 U. S. 3 (1883); Virginia v. Rives, 100 U. S. 313 (1880).

[3] The amendment provides "for a case where one who is in possession of state power uses that power to the doing of the wrongs which the Amendment forbids even although the consummation of the wrong may not be within the powers possessed if the commission of the wrong itself is rendered possible or is efficiently aided by state authority lodged in the wrongdoer." Home Tel. and Tel. Co. v. Los Angeles, 227 U. S. 278, 287 (1913). See also Ex parte Virginia, 100 U. S. 339, 346-347 (1880). It is an old and well-established principle that the agent of a state, acting under an unconstitutional law, is personally liable; but notice the application of the doctrine to the amendment and the right to prevent a state from using unconstitutional power.

[4] Strauder v. West Virginia, 100 U. S. 303, 310 (1880). "Nor", said the Court, "if a law should be passed excluding all naturalized Celtic Irishmen, would there be any doubt of its inconsistency with the spirit of the amendment." Ibid., 308.

[5] Neal v. Delaware, 103 U. S. 370 (1881). See also Bush v. Kentucky, 107 U. S. 110 (1883); Norris v. Alabama, 294 U. S. 587 (1935).

[6] In Virginia v. Rives, 100 U. S. 313, 322-323 (1880), the Court commented on the assertion that in a certain county negroes had never been allowed to serve as jurors in any case in which a colored man was interested: "The facts may have been as stated, and yet the jury which indicted them, and the panel summoned to try them, may have been impartially selected.... It is a right to which every colored man is entitled, that, in the selection of jurors ... , there shall be no exclusion of his race, and no discrimination against them because of their color. But this is a different thing from the right ... to have the jury composed in part of colored men." Cf. Ex parte Virginia, 100 U. S. 339 (1880).

[7] "The equal protection clause ... does not take from the State the power to classify in the adoption of police laws" provided the classification has reasonable basis and is not purely arbitrary. "One who assails the classification ... must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary." Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78-79 (1911), and cases cited. In the case of Nixon v. Herndon, 273 U. S. 536 (1927), the Court held a Texas statute invalid, which provided that negroes should not be eligible to participate in Democratic primary elections. The ground of invalidity was that it was denial of equal protection of the laws. "States", said the Court, "may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case". Ibid., 541.

[8] 163 U. S. 537 (1896).

[9] Berea College v. Kentucky, 211 U. S. 45 (1908).

[10] Cumming v. County Board of Education, 175 U. S. 528 (1809), where it appeared that so few colored children would attend a colored high school that insufficient funds could be used for colored elementary education.

[11] Slaughter-House Cases, 16 Wallace 36 (1873).

[12] "Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union." Ibid., 74.

[13] "These considerations confirm the view, already expressed in this opinion, that the opening sentence of the Fourteenth Amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship." United States v. Wong Kim Ark, 169 U. S. 649, 687-688 (1898). "In this, as in other respects," said the Court, "it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution." Ibid., 654.

Without the patient consideration given to other portions of the amendment, the Court, in the Slaughter-House Cases, 16 Wallace 36, 73, said the words, "subject to its jurisdiction" were intended to exclude from the operation of the amendment "children of ministers, consuls, and citizens or subjects of foreign States born within the United States." At a later day the Court declared a Chinaman born in the United States to be an American citizen. United States v. Wong Kim Ark, 169 U. S. 649 (1898). In this case the Court refused to accept the definition of "subject to the jurisdiction", as given above, and held that the justices in the Slaughter-House Cases did not in this respect speak with care and exactness, and that the remark was wholly aside from the question in judgment.

[14] Some of the expressions used by congressmen when the amendment was under discussion appear to be distinct pronouncements of the interpretation advocated by the dissenting justices. See Congressional Globe, 39 Cong., 1 sess., part III, pp. 2542. 2765-2766.

[15] The Court did refer to Crandall v. Nevada, 6 Wallace 35 (1868), still a leading case on the subject, and in referring to the privileges and immunities of United States citizenship spoke of their owing "their existence to the Federal government, its National character, its Constitution, or its laws." The privileges and immunities are, we may presume, the corollary of governmental duties and responsibilities. The privileges and immunities of a state citizen flow from the power, duty and obligation of the state and its government; those of a United States citizen flow from the powers, duty, responsibilities of the United States and its government. "... those [privileges and immunities of United States citizenship] are privileges and immunities arising out of the nature and essential character of the national government, and granted or secured by the Constitution of the United States." In re Kemmler, 136 U. S. 436, 448 (1890).

[16] Slaughter-House Cases, 16 Wallace 36, 96 (1873). "The amendment [the fourteenth] did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had." Minor v. Happer-sett, 21 Wallace 162, 171 (1875). It was held in this case that the Constitution does not confer the right of suffrage on anyone. A state law conferring suffrage on men alone was valid.

[17] They sought to maintain that the first ten amendments as far as they secure and recognize fundamental rights make them privileges and immunities of the man as a citizen of the United States. See Spies v. Illinois, 123 U. S. 131 (1887). "A trial by jury in suits at common law pending in the State courts is not, therefore, a privilege or immunity of national citizenship, which the States are forbidden by the Fourteenth Amendment to abridge." Walker v. Sauvinet, 92 U. S. 90, 92 (1876).

[18] The question so often arises in the minds of students and others, that emphasis seems necessary. Accepting the interpretation of that clause as announced by the Court in the Slaughter-House Cases, the principle is plain enough. Of course no state can deprive any citizen of the privileges of United States citizenship; and one of these privileges is not to be subjected by the United States to cruel and unusual punishments. In Maxwell v. Dow, 176 U. S. 581 (1900), the question was whether by providing for a proceeding by information and for a trial-jury of less than twelve men the constitution of Utah intrenched upon the privileges and immunities of a citizen of the United States. Even at that late date the Court found it necessary to point to the fact that the early amendments to the Constitution did not bind the states (a decision announced by Chief Justice Marshall more than half a century before — 1833, in Barron v. Baltimore, 7 Peters 243), and that the provisions of the first eight were not by virtue of the fourteenth amendment made obligatory upon the states. "... it is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law." Justice Moody in Twining v. New Jersey, 211 U. S. 78, 99 (1908).

[19] "In view of later decisions of the Court relative to the extent of the State police power over liberty and property, it may well be doubted whether the decision might not have been otherwise, had the case been argued more fully on the point of due process and had the facts been more clearly stressed; for one of the dissenting Judges, Field, always insisted in subsequent cases, that the question whether the statute involved had any real relation whatsoever to the police power had not been properly presented or considered." Charles Warren, The Supreme Court in United States History, III, p. 271.

[20] Slaughter-House Cases, 16 Wallace 36, 77 (1873). There was considerable unfavorable as well as favorable comment by the press. "It is important as showing that the Court is recovering from the war fever and is getting ready to abandon sentimental canons of construction." The Nation, April 24, 1873, quoted by Warren, op. cit., III, p. 265. Judge Moody, thirty-five years later, said, "Undoubtedly, it gave much less effect to the Fourteenth Amendment than some of the public men active in framing it intended, and disappointed many others. On the other hand, if the views of the minority had prevailed, it is easy to see how far the authority and independence of the States would have been diminished...." Ibid., p. 269.

[21] Davidson v. New Orleans, 96 U. S. 97, 104 (1878). The same surprise was expressed by Justice Field as late as 1885. Missouri Pacific R. Co. v. Humes, 115 U. S. 512. "Crowded" now appears an ill-chosen word, for the numbers soon increased rapidly. Warren, writing in 1922, says about 800 cases involving state statutes under the due process clause had been brought before the federal Supreme Court since 1873. Op. cit., III, p. 270.

[22] They are all in volume 94 of the Supreme Court reports. In the railroad cases, the counsel for the roads brought up the provision of the fourteenth amendment concerning the depriving a person of his property without due process. But the Court, on the whole, contented itself with referring to the Munn v. Illinois opinion.

[23] 94 U. S. 113 (1877).

[24] Logically the "Granger Cases" should be considered in this volume in connection with due process and the police power; but the principle laid down in these cases appears to deserve separate treatment, and I have been influenced by a desire to follow chronology as far as possible and to consider later due process as the doctrine was developed.

[25] The constitution of Illinois, adopted in 1870, declared all elevators or storehouses where grain or other property is stored for a compensation to be public warehouses. The act under consideration was passed to carry this declaration into effect, and among other things it prescribed the charges that might be asked.

[26] To the readers of history, the importance of this case is not so much in the technical right to regulate charges and the classification of certain industries as in the rude shock it gave to the very old notion that man could do what he wished with his own. It must be connected also with the multiplication of commissions for regulation and for the fixing of rates. The succeeding decades disclosed the gradual but significant enlargement of governmental control and the adjustment of constitutional principles to social need.

[27] "When it is once admitted ... that it is competent for the legislative power to control the business of elevating and storing grain, whether carried on by individuals or associations, in cities of one size and in some circumstances, it follows that such power may be legally exerted over the same business when carried on in smaller cities and in other circumstances." Brass v. North Dakota, ex rel. Stoeser, 153 U. S. 391, 403 (1894).

[28] In 1914 the Court held insurance to be a business affected with a public interest. " 'The underlying principle is that business of certain kinds holds such a peculiar relation to the public interests that there is superinduced upon it the right of public regulation.'" German Alliance Insurance Co. v. Lewis, 233 U. S. 389, 411, quoting People v. Budd, 117 N. Y. 1, 27. In this case, too, the Court announced the need of adjustment to actual conditions of society, as it ha d done in some other cases not involving business affected with a public interest: "It would be a bold thing to say that the principle is fixed, inelastic, in the precedents of the past and cannot be applied though modern economic conditions may make necessary or beneficial its application." Ibid., 411. Stockyards have also been thus classified. Tagg Brothers and Moorhead v. United States, 280 U. S. 420 (1930). In Tyson and Brother v. Banton, 273 U. S. 418 (1927), the question presented was the validity of a New York statute which declared that the price of theater tickets is a matter affected with a public interest and forbade the resale of a ticket at a price in excess of fifty cents in advance of the price printed on its face. A divided Court held the statute void. The Court, striving for a classification, after referring to a number of previous decisions, said, "From the foregoing review it will be seen that each of the decisions of this court upholding governmental price regulation, aside from cases involving legislation to tide over temporary emergencies, has turned upon the existence of conditions, peculiar to the business under consideration, which bore such a substantial and definite relation to the public interest as to justify an indulgence of the legal fiction of a grant by the owner to the public of an interest in the use." Ibid., 438. A classification of sorts is attempted in Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 535 (1923). See also Ribnik v. McBride, 277 U. S. 350 (1928).

[29] Tyson and Brother v. Banton, 273 U. S. 418, 446 (1927). See also Justice Stone dissenting. Ibid., 451. The paragraph in the text above may stand as a part of constitutional history, but the words were not more than written when the Supreme Court, for the time being in the hands of the "liberals", practically jettisoned by a five to four decision the whole theory that business could be classified or segregated on the basis set down in the "Granger Cases": "It is clear that there is no closed class or category of businesses affected with a public interest.... The phrase 'affected with a public interest' can, in the nature of things, mean no more than that an industry, for adequate reason, is subject to control for the public good." Nebbia v. New York, March 5, 1934. The case is of interest also because it upheld a state commission's power to fix rates that could be neither lowered nor increased. Nebbia was charged with selling two quarts of milk and a five-cent loaf of bread for eighteen cents, when the commission had set the price of milk at nine cents per quart.

[30] 118 U. S. 356 (1886).

[31] "These provisions [for the protection of life, liberty, property and for equality] are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality...." Ibid., 369.

[32] In the actual application of the ordinance only Chinese had been denied the required license: "No reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation, on which they depend for a livelihood." Ibid., 374.

[33] Barbier v. Connolly, 113 U. S. 27 (1885). "The specific regulations for one kind of business, which may be necessary for the protection of the public, can never be the just ground of complaint because like restrictions are not imposed upon other business of a different kind." Soon Hing v. Crowley, 113 U. S. 703, 708-709 (1885).

[34] "But it is said that it is not within the scope of the Fourteenth Amendment to withhold from States the power of classification, and that if the law deals alike with all of a certain class it is not obnoxious to the charge of a denial of equal protection. While, as a general proposition, this is undeniably true, ... yet it is equally true that such classification cannot be made arbitrarily.... That [classification] must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis." Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 155 (1897). See for further illustration, Atchison, T. and S. F. R. Co. v. Matthews, 174 U. S. 96 (1899); Fidelity Mutual Life Ass'n. Co. v. Mettler, 185 U. S. 308 (1902); St. Louis Consolidated Coal Co. v. Illinois, 185 U. S. 203 (1902); Getting v. Kansas City Stock Yards Co., 183 U. S. 79 (1901).

[35] Murray's Lessee v. Hoboken Land and Improvement Co., 18 Howard 272, 276 (1856). Webster, arguing in behalf of his alma mater in the Dartmouth College case (1819), said: "By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land." 4 Wheaton 518, 581. For discussion and references to early cases see R. L. Mott, Due Process of Law, ch. XII.

[36] "Thirty cases were presented involving the validity of state statutes under the due process provision before one was found in which the legislation was considered sufficiently arbitrary to violate it." Mott, op. cit., p. 206.

[37] Take for example a case arising even as late as 1908, where the question arose concerning the right of a trial judge to instruct the jury that they might properly take into consideration the defendant's failure to testify in his own behalf. Twining v. New Jersey, 211 U. S. 78. The Court rejected, as it had in earlier cases, the idea that the procedure of the seventeenth century, brought to this country by the colonists, could not be varied, if substantial justice were secured. Justice Moody in this case gives an especially illuminating statement as to the source of principles of due process and certain essentials of its meaning.

[38] Hurtado v. California, no U. S. 516. The Court was able to refer to other cases which supported the doctrine. But the Hurtado case is important because it came at that particular time when the Court was forced by the necessity of adapting constitutional law to a changing world. See Davidson v. New Orleans, 96 U. S. 97 (1878).

[39] The words of Cooley, in his Constitutional Limitations, were also approved: "Administrative and remedial process may be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen." Hurtado v. California, no U. S. 516, 527-528. The same doctrine was explicitly announced in the same year. "The clause in question [the due process clause of the fourteenth amendment] means, therefore, that there can be no proceeding against life, liberty, or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights." Hagar v. Reclamation District, 111 U. S. 701, 708 (1884).

[40] Reetz v. Michigan, 188 U. S. 505, 507 (1903).

[41] "An appeal on the question of constitutionality of either procedure or result must always be permitted when fundamental rights are involved.... Throughout the entire development of administrative law there has been the conflict between administrative necessity and expediency and the innate propensities of the courts to respect and preserve, if possible, the substance of judicial protection, even though in some cases its forms had to be foregone." Mott, op. cit., pp. 239-240.

[42] Commonwealth v. Alger, 7 Cushing (Mass.) 53, 85 (1851). For a clear statement see Mugler v. Kansas, 123 U. S. 623 (1887).

[43] The term in its ordinary connotation at the present time is defined by Ernst Freund as "the power of promoting the public welfare by restraining and regulating the use of liberty and property." The Police Power, p. iii.

[44] License Cases, 5 Howard 504, 583 (1847).

[45] 20 Wallace 655 (1875). I do not mean to assert that by using the due process clause the Court would have declared the law in question to be unconstitutional. The Court, however, could find or did find no explicit provision in the federal Constitution. As Justice Clifford indicates in dissent, the power assumed by the Court rested upon "a general latent spirit supposed to pervade or underlie the constitution...." In later years so many general principles of elementary rights and justice were brought under the protection of due process that one would hesitate to. say what cannot be covered by those words. But this case, coming when it did, and based as it was not on the fourteenth amendment but on the imagination of the Court, is one of the most amazing decisions in the history of a hundred and fifty years.

[46] Davidson v. New Orleans, 96 U. S. 97, 104 (1878).

[47] Missouri Pacific Ry. Co. v. Humes, 115 U. S. 512, 521 (1885). "It is hardly necessary to say, that the hardship, impolicy, or injustice of State laws is not necessarily an objection to their constitutional validity...." Ibid., 520. This date should be noticed — as late as 1885 !

[48] Mugler v. Kansas, 123 U. S. 623 (1887). As early as 1874, the Court said that, if it were true that the defendant was the owner of a glass of liquor at the time the state law imposed an absolute prohibition on the sale of such liquor, grave questions would arise: whether the statute would deprive him of property without due process of law and whether it would violate the fourteenth amendment. Bartemeyer v. Iowa, 18 Wallace 129 (1874). This statement has the flavor of Wynehamer v. New York, 13 N. Y. Court of Appeals Reports 378 (1856).

[49] Hepburn v. Griswold, 8 Wallace 603.

[50] Such statements are in Loan Association v. Topeka, 20 Wallace 655 (1875), and in Davidson v. New Orleans, 96 U. S. 97 (1878). As a matter of plain fact, the Court, in Reagan v. Farmers' Loan and Trust Company, 154 U. S. 362 (1894), passed with remarkable ease from discussion of equal protection and of eminent domain to a consideration of the reasonableness of charges: "It has always been a part of the judicial function to determine whether the act of one party (whether that party be a single individual, an organized body, or the public as a whole) operates to divest the other party of any rights of person or property. In every constitution is the guarantee against the taking of private property for public purposes without just compensation. The equal protection of the laws which, by the Fourteenth Amendment, no State can deny to the individual, forbids legislation, in whatever form it may be enacted, by which the property of one individual is, without compensation, wrested from him for the benefit of another, or of the public." Ibid., 399.

[51] Stone v. Farmers' Loan and Trust Company, 116 U. S. 307 (1886).

[52] Chicago etc. Railway Co. v. Minnesota, 134 U. S. 418, 458 (1890).

[53] "It is complained", said Justice Bradley, in a dissenting opinion concurred in by two justices, "that the decisions of the board are final and without appeal. So are the decisions of the courts in matters within their jurisdiction. There must be a final tribunal somewhere for deciding every question in the world.... The important question always is, what is the lawful tribunal for the particular case? In my judgment, in the present case, the proper tribunal was the legislature, or the board of commissioners which it created for the purpose." Justice Bradley admits that there may be a clear case of invasion of rights, and in such instance apparently there may be judicial review of the commission's determinations. But in the case he was considering there was merely a difference of judgment; the board was not charged with fraud. "The board may have erred; but if they did, as the matter was within their rightful jurisdiction, their decision was final and conclusive unless their proceedings could be impeached for fraud."

[54] Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362, 397. An examination of the opinions in the Reagan case and in Smyth v. Ames, 169 U. S. 466 (1898), will disclose the kind of questions which need to be answered by the judges. Pure questions of law appear to be secondary to the determination of intricate problems of accounting.

[55] Thus in 1892, the Court said, "What was said in the opinion in 134 U. S., as to the question of the reasonableness of the rate of charge being one for judicial investigation, had no reference to a case where the rates are prescribed directly by the legislature." Budd v. New York, 143 U. S. 517, 546. And only four years earlier Justice Gray, delivering the opinion of the Court, quoted with approval the statement made in Peik v. Chicago and N. W. R. R., 94 U. S. 164, 178: "Where property has been clothed with a public interest, the legislature may fix a limit to that which in law shall be reasonable for its use. This limits the courts, as well as the people. If it has been improperly fixed, the legislature, not the courts, must be appealed to for the change." Dow v. Beidelman, 125 U. S. 680, 687-688 (1888).

[56] Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362, 397 (1894). Rates fixed by a commission were declared unreasonable. For further development see St. Louis and S. F. Ry. Co. v. Gill, 156 U. S. 649, 657 (1895). In Covington and Lexington Turnpike Road Co. v. Sandford, 164 U. S. 578 (1896), the Court rendered a decision concerning rates fixed by statute. The Court in this case did not declare the rates to be too low, but did plainly assert its power to do so, and the case was remanded for further proceedings which would allow the parties to make their proofs.

[57] Smyth v. Ames, 169 U. S. 466, 526 (1898).

[58] "A similar provision [against deprivation of life, liberty and property] is found in nearly all of the state constitutions; and everywhere, and at all times, and in all courts, it has been held, either by tacit assent or express adjudication, to extend ... to corporations". County of San Mateo v. Southern Pac. R. Co., 13 Fed. 722, 746-747 (1882). See also Santa Clara County v. Southern Pac. R. Co., 118 U. S. 394 (1886), the first case in which this position was announced by the Supreme Court.

[59] Allgeyer v. Louisiana, 165 U. S. 578, 589, 590 (1897); In 1888, the Court, though not declaring a state statute invalid, had announced its general acquiescence in the principle that one has the right to "his enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property". Powell v. Pennsylvania, 127 U. S. 678, 684. In later years it was declared that liberty in the education of children was protected. Meyer v. Nebraska, 262 U. S. 390 (1923); Pierce v. Society of Sisters, 268 U. S. 510 (1925).

[60] Holden v. Hardy, 169 U. S. 366 (1898).

[61] The Court made some attempt to associate the principle announced with changes in the forms of procedure; but in reality it was not procedure which was under inspection (except for purposes of suggesting an analogy) but the essential justice of the act.

[62] "Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.... We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employé.... It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities? A printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a dry goods clerk, a bank's, a lawyer's or a physician's clerk, or a clerk in almost any kind of business, would all come under the power of the legislature, on this assumption." Lochner v. New York, 198 U. S. 45, 57, 59 (1905). "How can the Supreme Court at Washington have conclusive judicial knowledge of the conditions affecting bakeries in New York?" Sir Frederick Pollock, commenting on the Lochner decision in "The New York Labour Law and the Fourteenth Amendment," Law Quarterly Review, XXI, p. 212.

[63] Muller v. Oregon, 208 U. S. 412 (1908).

[64] It is interesting to compare this case with Jacobson v. Massachusetts, 197 U. S. 11 (1905), when the Court upheld a compulsory vaccination statute and referred to the "common belief" in the value of vaccination. "What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory [i.e. opposite to that held by members of the medical profession who did not believe in vaccination] accords with the common belief and is maintained by high medical authority." Ibid., 30. This is somewhat like the principle that the Court is supposed to have judicial cognizance of history!

[65] "How long we shall continue to blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows", said Judge Learned Hand a few years ago. Parke-Davis & Co. v. Mulford Co., 189 Fed. 95, 115 (1911). He believed there should be a united effort to effect such advance. See also Felix Frankfurter of counsel in Bunting v. Oregon, 243 U. S. 426, 432: " 'common understanding' is a treacherous criterion". It is well to notice that some state courts had, before the Muller v. Oregon decision, taken cognizance of certain physiological and other facts justifying, in the courts' judgment, special legislation for women. See for example, Wenham v. State, 65 Neb. 394 (1902); State v. Buchanan, 29 Wash. 602 (1902). Noteworthy also is the fact that the Illinois supreme court, which in 1895 had pronounced void an act limiting working hours for women, upheld a statute of that kind two years after the Muller case. Ritchie and Co. v. Wayman, 244 Ill. 509 (1910).

[66] Bunting v. Oregon, 243 U. S. 426 (1917).

[67] Adkins v. Children's Hospital, 261 U. S. 525, 564 (1923). This was the minimum wage case; a congressional act authorizing a commission to fix a minimum wage for women and minors in the District was declared void. Professor Frankfurter, reviewing in 1916 the developments of law in the matters referred to the text, said, "Courts, with increasing measure, deal with legislation affecting industry in the light of a realistic study of the industrial conditions affected" and declared that the emphasis had been shifted to community interests. "Hours of Labor and Realism in Constitutional Law," Harvard Law Review. XXIX, pp. 366-367.

[68] But are there no limits to which state legislation may go? Before the Bunting case, the Court said, "It is manifestly impossible to say that the mere fact that the statute of California provides for an eight hour day, or a maximum of forty-eight hours a week, instead of ten hours a day or fifty-four hours a week, takes the case out of the domain of legislative discretion. This is not to imply that a limitation of the hours of labor of women might not be pushed to a wholly indefensible extreme...." Miller v. Wilson, 236 U. S. 373, 382 (1915). Are we then, perchance, to find the Court some day passing upon the question whether seven hours a day are reasonable and six and one-half not, or six reasonable and five and three-quarters not? It will be noticed that in the cases already mentioned which dealt with the legislative power to fix rates for service of railroads etc., the Court started with a declaration that the power was within state competence, later said there were limits, and still later found itself examining with critical care the question of exact remuneration.

[69] Ives v. South Buffalo Ry. Co., 201 N. Y. 271 (1911).

[70] Jensen v. Southern Pac. Co., 215 N. Y. 514 (1915).

[71] N. Y. Central R. R. Co. v. White, 243 U. S. 188, 197-198 (1917). See also Arizona Employers' Liability Cases, 250 U. S. 400 (1919); Hawkins v. Bleakly, 243 U. S. 210 (1917). Despite the objection made in the early years of the twentieth century to laws of this character, and despite the opposition to the abandonment of the old doctrines, probably neither employer nor employee has since regretted the change. The whole subject is an interesting example of the fact that laws cannot remain immutable when conditions do not support them, that public sentiment finds its way, and that courts will not continuously uphold the old rules

[72] McLean v. Arkansas, 211 U. S. 539 (1909).

[73] Knoxville Iron Co. v. Harbison, 183 U. S. 13 (1901). A decision upholding the famous Adamson Act was given during the World War. It dealt with the authority of the national government not the states; and it is state legislation which is being dealt with in the present chapter. The act in question was entitled "An Act to Establish an Eight Hour Day for Employees of Carriers Engaged in Interstate and Foreign Commerce, and for Other Purposes". The Court declared that it amounted to an exertion of congressional power "under the circumstances disclosed to compulsorily arbitrate the dispute between the parties...." Wilson v. New, 243 U. S. 332, 351 (1917).

[74] The statement of Justice Holmes dissenting in Lochner v. New York, 198 U. S. 45. 75-76 (1905), is especially illustrative. "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.... 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.... I think that the word liberty in the Fourteenth 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." The years made it perfectly plain that the decisions of the Court depended for their character on the personal attitudes of the justices, and that a change, therefore, in the membership would vitally affect the decisions in a certain class of cases. The strengthening of the "liberal" element toward the end of the period is well-known.

[75] In this connection see the chapter in this volume on Chief Justice Taney and the Supreme Court. Notice also Iredell's statement in Calder v. Bull, 3 Dallas 386, 399 (1798). where the general principles are briefly and admirably stated.


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