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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 individua