PRIOR to the adoption of the Fourteenth Amendment, which has been styled an "American Magna Carta," due process of law was of little significance in American constitutional law. For about three quarters of a century after the introduction of the term into the first state constitutions, it was seldom used as a basis for the protection of either personal or property rights. Few legislative enactments were held invalid as contravening due process of law, and some of the most important efforts to define the phrase were made in dicta in cases upholding the validity of the laws attacked. On the whole, the interpretation of the phrase "due process of law" or "the law of the land" prior to 1870 had placed on legislatures few restrictions which were not merely procedural in character, and had merely suggested ideas or principles which under a different environment were soon to be received favorably.

Though the Fifth Amendment provided that "no person shall ... be deprived of life, liberty, or property, without due process of law," the federal courts were seldom called on to protect either personal privileges or property rights under this provision. And when such an attempt was made it usually resulted in failure for the litigant.[2]

When the Fourteenth Amendment was adopted in 1868, with the proviso that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," a serious problem in constitutional interpretation arose. While the amendment was in the process of formulation in Congress there were some among the radical Republican group who wanted to change the whole plan of the federal government, as provided in the Constitution, and to place a supervisory authority over all state powers in the hands of the national authorities. The original draft of the amendment was worded so as to accomplish this object. John A. Bingham, Member of the House of Representatives, who is credited with the drafting of the original due process of law clause, said it was his object to render the principles and restrictions of the Bill of Rights of the federal Constitution applicable to the acts of the states. Conservative Republicans opposed such a change, and the original resolution was dropped and one couched in vague and general terms which proved acceptable to both the radical and the conservative wings of the Republican party, was submitted to the states for adoption.[3] There was considerable fear that section one of the amendment contained the germ of a policy which would mean ultimately a complete change in the relations between the nation and the states. On this ground some Republicans and nearly all of the Democrats opposed the adoption of the amendment.[4] By counting the reconstructed states, forcibly put under Republican control, the amendment was finally declared adopted with its meaning and intent very much in doubt. In the controversies over the adoption very little consideration was given to the significance of section one, the only portion which has had any noticeable effect upon the relations of the federal and the state governments.[5]

1. Period of Restricted Interpretation. Congress immediately set about through enforcement legislation to protect negro voters, to re-enact the Civil Rights Bill, and to place all violations of these measures under federal control. But when an issue involving the interpretation of the amendment came before the Supreme Court, it was decided by a close vote to reject the radical view favoring a complete change in the federal system, and the court adopted the conservative opinion of both Democrats and Republicans — that the amendment was designed primarily to protect the negro race in their newly acquired rights and privileges.[6] With this exception the states, it was thought, were left as free to regulate their affairs as they were before the Civil War. Thus interpreted, "due process of law" and the "equal protection of the laws" would have had little effect on the normal field of state functions. But four members of the court dissented, and Justice Field in his dissent expressed the view that it was the intention of the Fourteenth Amendment to "protect the citizens of the United States against the deprivation of their common rights by state legislation."[7] Here was a suggestion favorable to special interests desiring protection, and counsel were not slow to urge upon the court that the new amendments were intended to place the whole jurisprudence of the country under the protection of the Supreme Court.[8] The majority of the justices, however, saw no reason for taking such a significant step, and chose rather to adhere to the time-honored interpretation of due process of law. The effect of this and similar decisions[9] was to leave relatively little power to enforce the amendment in the hands of Congress, and to transfer its definition and application primarily to the courts. And for ten years the federal courts consistently discouraged litigation under the amendment — so much so that only nine cases were considered in a decade. This attitude may have been due in part to the fear that Congress, which had overridden both the executive and the courts in carrying out its reconstruction policies, would unduly interfere with the powers of the states. From 1877 to 1885 twenty-six additional cases were adjudicated under this amendment, making a total of thirty-five cases in sixteen years. Considering the fact that a considerable number of these cases were either unimportant or trivial, it seemed that the adoption of the Fourteenth Amendment had affected but slightly the powers of the states as they existed prior to the Civil War.[10]

Justice Miller thought that the just compensation principle of the Fifth Amendment was not comprehended under the Fourteenth Amendment. It seemed to him

not a little remarkable, that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised have been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theater of public discussion. But while it has been a part of the Constitution as a restraint upon the powers of the states, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty or property, without due process of law. There is here abundant evidence that there exists some strange misconception of this provision as found in the Fourteenth Amendment. 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 attention or the decision of this court the abstract opinion of every unsuccessful litigant in the state courts, or jury of the decision against him, and of the merits of the legislation upon which such decisions may be founded.[11]

When an attempt was made to secure protection under the due process clause from legislative regulation of private business the court again refused to accept the extended application of due process of law.[12]

When the argument was presented that the owner of property is entitled to a reasonable compensation for its use, even though it be clothed with a public interest, and that what is reasonable is a judicial and not a legislative question, the answer was given by the court that the practice has been otherwise.[13]

That this power might be abused, it was admitted, but for protection against abuses by legislatures, the court replied, "the people must resort to the polls, not to the courts."[14] The controlling fact was held to be the power to regulate at all. If that existed the right to establish the maximum charge as one of the means of regulation was implied. In short, the issue was regarded as a political question, and was referred to the political departments of the government. A dissenting opinion by Justices Field and Strong emphasized the importance of judicial determination of questions of this nature. The majority opinion was condemned as "subversive of the rights of private property, heretofore believed to be protected by constitutional guarantees against legislative interference."[15]

Thus far the federal courts had refused to limit the power of taxation by an implied public purpose doctrine or by the due process of law clause, to restrict the legislative regulation of private callings, even to the extent of permitting the creation of an exclusive monopoly, or to prevent the fixing, without judicial recourse, of the maximum charge for the use of property affected with a public interest.[16]

2. Economic and Political Pressure brings about a Change in Supreme Court Decisions. But the conservative policies which had grown into favor and had met with judicial approval in the states, were reflected in a reversal of the position of the Supreme Court, which gradually made the minority views in the Slaughter-House and the Granger Cases the majority opinion of the court. The persistent appeal to the court by counsel, representing interests desiring protection under the Fourteenth Amendment and under other clauses of the Constitution, ultimately had the desired result.[17] Some marked changes in economic and social conditions, and political developments arising therefrom, prepared the way for a change of opinion on the meaning of the vague phrases of the Fourteenth Amendment.

The Civil War brought on something in the nature of an industrial revolution in the United States. When foreign intercourse was almost entirely cut off, the growth of domestic industries was greatly increased. The movement once begun, and encouraged by a high protective tariff, a phenomenal growth of manufactures took place from 1870 to 1900. The opening up of extensive areas in the West, begun before the issues of the Civil War overshadowed everything else, was accelerated by the Homestead Act and by the building of transcontinental railways through lavish grants of land by state and federal governments, and through generous financial aid in other ways. The wave of commercial expansion that followed the war, augmented by high protective duties, offered rare opportunities for masters of finance and captains of industry, which were taken advantage of in the consolidation of the railways into great systems, and often in wrecking their finances by outrageous manipulations, and in the beginnings of concentration and integration of small units in the field of manufactures. As the capitalists grew in number, and their interests increased in importance, they sought not only to control legislative assemblies in order to secure special favors but also, in certain other respects, to curtail their activities.[18]

At the same time that such a marked commercial expansion was under way and the process of consolidation and integration was going on, certain movements originating mostly in the West and the South aimed to check this development, and to bring many of the business practices involved under regulation by law. The early eighties saw "everywhere increasing inclination to translate social yearnings into statutes that interfered with the also fast-increasing class who wished to be let alone because they were well able to take care of themselves under a static common law."[19] The Granger Movement, populism, and the beginning of the regulation of industry on behalf of labor, gave what seemed to many ominous warnings of a dangerous trend toward state socialism. Thus there arose a clearly drawn controversy between the leaders of industry, commerce, and finance, and the forces favoring public regulation and control.

The rush of immigration to the West and the commercial enterprises involved in opening up large sections of new land, gave to the frontier and to the philosophy accompanying frontier conditions a dominance in American public life. Large corporations and industrial enterprises, amply able to take care of themselves, began to advocate a policy of hands off by the government, and this policy accorded well with the interests of those who were pushing the frontier farther to the West. A combination of conservative leaders in both leading parties was organized to contest all forms of regulation of business interests by the public. As Hamilton and Madison thought when the federal Constitution was being formed, that it was necessary to take steps to check the activities of "overbearing majorities," so Judge Dillon expressed the opinion of a dominant class in the latter part of the nineteenth century when he said, "We cannot fail to see that what is now to be feared and guarded against is the despotism of the many — of the majority."[20] A solid front faced the seemingly radical regulative tendencies growing in the South and the West. The line was clearly drawn between the conservatives, combined now with the augmented followers of the laissez faire policy, and the radical leaders of the movement favoring public regulation of public service enterprises and legislative control of industrial conditions, regarded as harmful both to the laborers and to the general public. Justice Holmes had in mind this controversy when he referred to conditions which

led people who no longer hope to control the legislatures to look to the courts as expounders of the Constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantages on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.[21]

It was the drawing of a well-defined issue between conservative and, at times, reactionary forces which now opposed public regulation of business interests, public and private, and the liberal or radical leaders who were committed to regulative and restrictive policies that finally brought pressure to bear on the Supreme Court sufficient to secure a reversal of its interpretation of the Fourteenth Amendment.[22]

Speaking of the growth of litigation under due process of law as the product of two generations, Justice Hough remarks:

"To me the reasons seem to have no very close relation to the law or its professors; but to rest on the social and material changes which have within the years indicated transformed this country from an agricultural to a manufacturing community, and its population so largely from rural to urban."[23]

Reference was made previously to an apparent change of position when Justice Miller defended the public purpose criterion in taxation as the basis for well-defined implied limits on state legislatures. The conclusion was reached that there can be no lawful tax which is not levied for a public purpose, and that the determination of what is a public purpose is ultimately for the courts.[24] That the majority of the court was changing the grounds on which judicial review of legislation was formerly exercised was asserted in a dissent by Justice Clifford.[25] The Supreme Court, however, was not as yet inclined to accept, as a general limitation applicable to the taxing power of the federal and state governments, the public purpose doctrine of Justices Cooley and Dillon with all of its implications.

3. Reversal of the Former Opinions on the Meaning of Due Process of Law. A change of opinion relative to the meaning of the due process of law clause of the Fourteenth Amendment, which has extended its scope into many phases of federal and state law, was indicated primarily in cases relating to the state regulation of public utilities, in those involving the concept of the liberty of contract or liberty of calling, and in the interpretation of due process of law into a broad rule of reason to test the validity of many controversial state enactments.

(a) Due Process of Law applied to the Procedure in the Regulation of Public Utilities. Signs of the changing attitude of the justices of the Supreme Court relative to the legislative control over public utilities appeared when Chief Justice Waite in upholding the right of legislatures to regulate railway charges said:

It is not to be inferred that this power of limitation or regulation by the state is itself without limit. This power to regulate is not the power to destroy, and limitation is not the equivalent of confiscation ... the state cannot ... do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law.[26]

Justice Gray, who joined with the majority in the Munn Case, had changed his opinion in a decade sufficiently to approve Waite's dictum "as a general rule of law," but doubted whether the court would, under any circumstances, have the power to hold a state rate act void on the ground that it was unreasonable.[27] And as late as 1892 the court again expressed doubt whether it could hold that a rate fixed by the legislature was unreasonable.[28]

But the doubt and uncertainty prevailing for some time was in a large part removed when in the epoch-making Minnesota Rate Case the Supreme Court held that rate regulation, although primarily legislative in character, was subject to judicial review under the due process of law clause. Declaring invalid the Minnesota Act of 1887, providing that the rates established by a railroad and warehouse commission shall be final and conclusive as to what are equal and reasonable charges, and that there could be no judicial inquiry on the question of reasonableness, Justice Blatchford, extending Chief Justice Waite's dictum, said:

The question of the reasonableness of a rate of charge for transportation by a railroad company, involving as it does the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial investigation, requiring due process of law for its determination.[29]

Justice Bradley, with whom concurred Justices Gray and Lamar, asserted that the majority opinion of the court practically overruled Munn v. Illinois and other railroad cases decided by the court, and commented as follows:

But it is said that all charges should be reasonable, and that none but reasonable charges should be exacted; and it is urged that what is a reasonable charge is a judicial question. On the contrary, it is preeminently a legislative one, involving considerations of policy as well as of remuneration; and is usually determined by the legislature by fixing a maximum of charges.... If this maximum is not exceeded, the courts cannot interfere.... Thus, the legislature either fixes the charges at rates which it deems reasonable; or merely declares that they shall be reasonable; and it is only in the latter case, where reasonableness is left open, that the courts have jurisdiction of the subject.[30]

A decision which made the courts the final arbiters in the regulation of rates, Justice Bradley thought, was an assumption of an authority on the part of the judiciary which it had no right to make. To the repeated arguments that such a power in the hands of legislatures was dangerous and that implied limits on legislatures were essential to preserve and protect property rights, Justice Bradley replied, defending the principles of democratic control of public affairs:

It may be that our legislatures are invested with too much power, open, as they are, to influences so dangerous to the interests of individuals, corporations and society. But such is the constitution of our republican form of government; and we are bound to abide by it until it can be corrected in a legitimate way. If our legislatures become too arbitrary in the exercise of their powers, the people always have a remedy in their hands; they may at any time restrain them by constitutional limitations. But so long as they remain invested with the powers, that ordinarily belong to the legislative branch of government they are entitled to exercise those powers, amongst which, in my judgment, is that of the regulation of railroads and other public means of intercommunication, and the burdens and charges which those who own them are authorized to impose upon the public.[31]

The original purpose of the due process of law clause was to protect the weak and the oppressed but when the Supreme Court decided that corporations were entitled to the protection of the Fourteenth Amendment and that foreign corporations could not be deprived of their property arbitrarily,[32] the way was opened for organizations of capital to contest before the Supreme Court such laws as they regarded unwise or detrimental to their interests. Comparatively few cases have arisen under the amendment to protect personal or individual rights and instead it has become the bulwark for the protection of the privileges and interests of large corporations. Where states reserved in their constitutions the right of the legislature to alter, amend, or repeal at will corporate franchises, the Supreme Court intervened to insist that the power of alteration and amendment is not without limit. The alterations must be reasonable and they must not take the property of the company without just compensation.[33] Such a holding has amounted to the practical proposition that legislatures may amend corporate charters to the advantage of the incorporators but not to their detriment.

As a result of this change in the attitude of the court, and the extension of due process of law as a standard applicable to rate regulation and the reasonableness of measures for public control, a large field of public powers, namely, the manifold regulations of state legislatures and administrative commissions, in their effort to control public utilities, has become subject to the continuous critical scrutiny of the courts,[34] often primarily concerned with preserving the property rights of the utilities.

Judicial review by this extension of the application of due process of law has entered a new field, and has placed numerous restrictions and obstructions in the way of effective regulation of public utilities by states and other local bodies. Such review manifestly was not inherent in any constitutional provision or a necessary concomitant of constitutional interpretation as first understood and applied in state and federal governments. It came as a result of the fear of democratic control and of popular participation in the regulation of public utilities and of the belief that private property could be made safe only with extensive limitations on legislatures rendered effective by courts through judicial review of legislative and administrative findings.

While the court was gradually changing its position on the review of legislative and administrative procedure in rate-making and in the regulative power exercised by states over corporations and public utilities, members of the court imbued with the frontier philosophy of individualism, or sympathetic with conservative doctrines were establishing a standard by construction to pass on the fairness or expediency of labor legislation. Justice Field had suggested in the Slaughter-House Cases that in his opinion the Fourteenth Amendment was intended to protect all citizens of the United States in their "common rights," and it was in the definition of these "common rights" that the theories of the Declaration of Independence and of the eighteenth-century natural rights were again applied.[35]

(b) Due Process of Law and Liberty of Contract. As an advocate of the natural rights ideas of the revolutionary period Justice Field became the mouthpiece for the judicial protection of the fundamental rights which belong to man "as a free man and a free citizen."[36] At the first available opportunities Justice Field gave a careful exposition of his views as to the nature of these fundamental rights, as follows:

As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all action, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the Declaration of Independence, that new evangel of liberty to the people; "We hold these truths to be self-evident" — that is, so plain that their truth is recognized upon their mere statement — "that all men are endowed" — not by edicts of Emperors, or decrees of Parliament, or acts of Congress, but "by their Creator with certain inalienable rights" — that is, rights which cannot be bartered away or given away, or taken away except in punishment of crime — "and that among these, are life, liberty, and the pursuit of happiness, and to secure these" — not grant them, but secure them — "governments are instituted among men, deriving their just powers from the consent of the governed."

Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment.

The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them, without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright.

It has been well said that "the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hand, and to hinder his employing his strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper." Adam Smith's Wealth of Nations, Bk. I, chap. 10.[37]

The Fourteenth Amendment, in declaring that no state "shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws," undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses.[38]

These dicta, along with some similar remarks of other justices, introduced into American law the concept of liberty of contract and of calling. This concept, which is one of the by-products of natural law thinking, had its origin in mediaeval times and was accepted in France and in England as one of the principles of the economic policy of laissez faire. The principle was accepted and applied by the state courts to check the increased efforts of legislatures to regulate wage contracts and labor conditions.[39]

It was merely necessary to translate these dicta into concrete terms and to use them in rendering the judgments of the Supreme Court.[40] This was done by Justice Peckham when he asserted that, "in the privilege of pursuing an ordinary calling or trade, and of acquiring, holding and selling property must be embraced the right to make all proper contracts in relation thereto,"[41] and with extensions beyond Field's broad terms, by Justices Harlan[42] and Pitney.[43]

Thus, beginning in a series of dicta, a doctrine of liberty of contract was developed as a phase of the Fourteenth Amendment and was gradually accepted and interpreted by the majority of the Supreme Court to embody the natural and inalienable rights doctrine of the Declaration of Independence. The terms of the Fifth and Fourteenth Amendments were thereby given an interpretation which placed new limits on legislative powers for the state and federal governments.[44] Advocates of the "new liberties" soon formulated what they called a fundamental principle, namely, that the term "liberty" as used in the Declaration of Independence and as extracted from the general language "due process of law" in written constitutions meant not only for the individual freedom from servitude and restraint, but also freedom to use his powers and faculties, and to pursue such vocation or calling as he may choose, subject only to the restraints necessary to protect the common welfare.[45]

The adoption by the courts of the principle of judicial review of public utility regulations as a requirement for the due process clause of the Fourteenth Amendment, combined with an incorporation therewith of a considerable part of Chancellor Kent's vested rights doctrine,[46] which the judiciary were specially charged to apply, and the interpretation of the amendment to include the natural rights theories of the Declaration of Independence went a long way toward construing the Fourteenth Amendment as radical Republican leaders had desired, so as to exercise national supervision over the control of civil rights — an interpretation which the court itself had repeatedly rejected.[47] But with all of these ideas combined in the due process clause a mere beginning was made to develop in the constitutional law of the United States a formidable Naturrecht or natural law, which was to be fostered into a new lease of life by combining the phrases "due process of law" and the "equal protection of the laws." These have been united to assure the broadest kind of protection for the fundamental rights of the individual and for the assurance that there can be no arbitrary interference with personal liberty. Thereby a theory of the protection of human rights glorified by the common law courts was consecrated into a constitutional doctrine and characterized as democratic.

1. "Our constitutional liberty during the last thirty years, with comparatively few exceptions, may be said to be but little more than a commentary on the Fourteenth Amendment, which indeed nationalized the whole sphere of civil liberty. This great amendment to the Federal Constitution has done more than any other cause to protect our civil rights from invasion, to strengthen the bonds of the Union, to make us truly a nation, and to assure the perpetuity of our institutions" William D. Guthrie, Lectures on the Fourteenth Article of Amendment to the Constitution of the United States, (Boston, 1898), pp. 1, 2.

2. Cf. Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272 (1855). Due process the court held to be a restraint on the legislative as well as the executive and judicial powers of government and a process of law which is not otherwise forbidden, and which can be shown to have had the sanction of settled usage both in England and in this country. Cf. also Hurtado v. California, 110 U. S. 516, 528 (1883), and Holden v. Hardy, 169 U. S. 366, 390 (1898). For incidental reference to the Fourteenth Amendment, see United States v. Harris, 106 U. S. 629 (1883); see also Yick Wo v. Hopkins, 118 U. S. 356. Cases in which federal acts have been held void as violating due process of law are: Adair v. U. S., 208 U. S. 161 (1908); United States v. Cohen Grocery Co , 255 U. S. 81 (1921); Adkins v. Children's Hospital, 261 U. S. 525 (1923); Untermeyer v. Anderson, 276 U. S. 440 (1928).

3. Horace E. Flack, The Adoption of the Fourteenth Amendment, chaps. 1 and 2. Dr. Flack concludes that Congress had the following objects in view in submitting to the states the first section of the Fourteenth Amendment:

1. To make the Bill of Rights (the first eight amendments) binding upon, or applicable to, the states.

2. To give validity to the Civil Rights Bill.

3. To declare who were citizens of the United States. See pp. 92 ff. It must not be forgotten, however, that it was a Congress dominated by the bitter war spirit and led by the radical Reconstruction leaders of the Republican party which was responsible for the amendment, and, that a large part of the legislation enacted and of the policies fostered by these leaders was repudiated when something approaching normal political conditions was restored.

4. Cf. B. B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction, 39th Congress, 1865-1867, Columbia University Studies in History, Economics and Public Law, vol. LXII. "The line of Democratic hostility in the nation and the states was absolutely unbroken" James G. Blaine, Twenty Years of Congress, pp. 308-310.

5. Flack, op. cit., p. 208. "The Fourteenth [Amendment] was a straight party measure, due to the distrust of the states solely in respect of their possible treatment of the negro. The sufficient proof of party spirit is that in all the legislatures of all the states exactly one Democrat voted for it." Charles M. Hough, "Due Process of Law — Today," Harvard Law Review, XXXII (January, 1919), 220.

6. The Slaughter-House Cases, 16 Wall. 36 (1872). See Edward S. Corwin "The Supreme Court and the Fourteenth Amendment," Michigan Law Review, VII (June, 1909), 643.

7. 16 Wall. 89.

8. Murdock v. Memphis, 20 Wall. 590, 599 (1874).

9. See United States v. Cruikshank, 92 U. S. 542 (1875). But Chief Justice Waite threw out the suggestion that the Fourteenth Amendment "furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society." Ibid., 554.

10. Prior to 1883 "appeals to due process of law in the federal courts were rare, and (barring the negro cases) never successful, except on the procedural side." Pennoyer v. Neff, 95 U. S. 714 (1877) is called a "monument" of the latter type of decision. Cf. Hough, op. cit., p. 218.

11. Davidson v. New Orleans, 96 U. S. 97, 103-104 (1877). It was in this case in which Justice Miller, refusing to define due process of law, said: "There is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the federal Constitution, by the gradual process of inclusion and exclusion, as the cases presented shall require." Ibid., 104.

Referring to the above observation of Justice Miller in 1885, Justice Field remarked that after the lapse of eight years, it may be repeated with an expression of increased surprise at the continued misconception of the purpose of this provision." Missouri Pacific Railway v. Humes, 115 U. S. 512, 520 (1885). For a change in the position of the court see opinion of Justice Gray in Missouri Pacific Railway v. Nebraska, 164 U. S. 403, 417 (1896). A requirement that a company lease its property to a private party was held to be a taking of property and a denial of due process of law. Chicago, Burlington and Quincy Ry. Co. v. Chicago, 166 U. S. 226, 233, 241 (1896). Henceforth it was regarded as settled that a state might not under the due process provision take private property for public use without just compensation.

12. Munn v. Illinois, 94 U. S. 113 (1876) and the Granger Cases, 94 U. S. 155, 164, 179, 180. See Buck, The Granger Movement, chaps. 4-6. For similar decisions approving the regulative power of the states see Bradwell v. The State, 16 Wall. 130 (1872); Bartemeyer v. Iowa, 18 Wall. 129 (1873); United States v. Cruikshank, 92 U. S. 542 (1875); Hurtado v. California, 110 U. S. 516 (1883); Barbier 11. Connolly, 113 U. S. 27 (1884); and Powell v. Pennsylvania, 127 U. S. 678 (1887). See, however, Justice Field's opinion on the broad implications of the Fourteenth Amendment, 113 U. S. 31.

13. Munn v. Illinois, 94 U.S. 133, 134. At common law, in the absence of legislation, a public utility was bound to charge no more than a reasonable rate and in case of complaint it was for a court to decide whether the rate was reasonable. But if Parliament fixed a schedule of rates no court could inquire into the question of reasonableness. The remedy in such case lay in an appeal to Parliament or to the voters, not to the courts. Gerard C. Henderson, "Railway Valuation and the Courts," Harv. Law Rev., XXXIII (May, 1920), 904.

14. 94 U.S. 134.

15. Ibid., 136. In Stone v. Wisconsin, it was again maintained by the minority that the court's decision that a corporation charter was subject to alterations or repeal by the state legislature was wrong, and that it will "justify the legislature in fixing the prices of all articles and the compensation for all services. It sanctions intermeddling with all business and pursuits and property in the community, leaving the use and enjoyment of property to be regulated according to the discretion of the legislature." 94 U. S. 181, 186 (1876).

16. The decisions in the Granger Cases Judge Hough remarks "seemed to put all complaints of corporate regulation of service and charges out of court, if an appeal under the due-process clause was ventured against a state; the still continuing dissents of Justice Field seemed most unorthodox. The remarks in another judgment, that due process was usually what the state ordained, seemed to clinch the matter." Harv. Law Rev., XXXII, 226 and Walker v. Sauvinet, 92 U. S. 90 (1875).

17. See argument of Joseph H Choate in Pollock v Farmers' Loan & Trust Co., 157 U S. 429, 532, 534 (1895): "I believe there are private rights of property here to be protected; that we have a right to come to this court and ask for this protection, and that this court has a right, without asking leave of the attorney general or any counsel, to hear our plea. The act of Congress which we are impugning before you is communistic in its purpose and tendencies and is defended here upon principles as communistic, socialistic — what shall I call them — populistic as ever have been addressed to any political assembly in this world.... I have thought that one of the fundamental objects of all civilized governments was the preservation of the rights of private property. I have thought it was the very keystone in the arch upon which all civilized government rests and that this once abandoned, everything was at stake and in danger."

18. S. J. Buck, The Granger Movement (Cambridge, 1913), pp. 13 ff.

19. Hough, op. cit., p. 227.

20. The Laws and Jurisprudence of England and America, pp. 204-205.

21. Collected Legal Papers (New York, 1920), p. 184 and Harv. Law Rev., X (March, 1897), 456, 467.

22. "Conservative and liberal schools of interpretation not only instantly appeared at bar, but in the court, and along party lines, in a way not usually recognized." Hough, op. cit., p. 225. "The Granger legislation aroused bitter political passions and grave fears among those who believed the welfare of the country depended upon the security of property. In case after case, as it came before the Supreme Court, the leaders of the bar appealed to the court not to leave the vast interests of private stockholders at the mercy of radical state legislatures. To have withstood this appeal would have been utterly inconsistent with the individualistic spirit which pervaded American jurisprudence in the latter part of the nineteenth century. Some method must be devised by which courts could check the assaults of western legislatures upon established property rights." Henderson, op. cit., p. 905. See also Hough, op. cit., p. 227.

23. Hough, op. cit., p. 222.

24. Loan Association v. Topeka, 20 Wall. 655, 662, 663 (1874). See comment of Justice Miller in Davidson v. New Orleans, "that because of the fact that the Loan Association Case came to the federal courts because of the character of the parties, the justices felt free to enforce general principles of constitutional law." 96 U. S. 97, 105 (1877).

When the contention was made that unjust and oppressive taxation by the states should be prevented, the Supreme Court held that the Constitution was not intended to furnish a corrective for every abuse of power which may be committed by the state governments and could not afford relief between a state and its citizens against taxation, however unjust, oppressive, or onerous. Kirtland v. Hotchkiss, 100 U. S. 491, 498 (1879). But eleven years later, speaking again through Justice Harlan, an unwise exercise of the power of levying special assessments was held invalid on the general ground that "the power of the legislature in these matters is not unlimited." Norwood v. Baker, 172 U. S. 268, 278 (1898). For a modification of the judgment in this case see French v. Barber Asphalt Pav. Co, 181 U. S. 324 (1901). Justices Harlan, White, and McKenna dissented.

25. "Courts cannot nullify an act of the state legislature," said Justice Clifford, "on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the Constitution, where neither the terms nor the implications of the instrument disclose any such restriction. Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the Constitution and the people, and convert the government into a judicial despotism.... Unwise laws and such as are highly inexpedient and unjust are frequently passed by the legislative bodies, but there is no power vested in a circuit court, nor in this court to determine that any law passed by a state legislature is void if it is not repugnant to their own constitution nor the Constitution of the United States." 20 Wall. 669, 670.

26. Stone v. Farmers' Loan and Trust Co., 116 U. S. 307, 331 (1885). "It is now settled in this court," said the Chief Justice, "that a state has power to limit the amount of charges by railroad companies for the transportation of persons and property within its own jurisdiction, unless restrained by some contract in the charter, or unless what is done amounts to a regulation of foreign or interstate commerce." Ibid., 325. Justices Harlan and Field dissented on the ground that the state act was void in so far as it authorized a commission rather than a court to determine finally the fair return on the value of a railroad. For a similar suggestion see Spring Valley Water Works v. Schottler, 110 U. S. 347, 354 (1883). See opinion of Justice Harlan in Ruggles v. Illinois, 108 U. S. 526, 535 (1883) for an effort to place the basis for the judicial review of rate regulation on the contract clause and on the principles announced by Chief Justice Marshall in the Dartmouth College Case. Using this decision as a basis the railroads denied the right of the states or of the nation to regulate them. Buck, The Granger Movement, p. 12.

27. Dow v. Beidleman, 125 U. S. 680, 686, 691 (1888). A state law in this case which fixed a maximum of three cents a mile for a railway charge for carrying passengers was held not to deny these corporations due process of law. Justice Gray, who joined the dissenters in Chicago, Milwaukee and St. Paul Ry. Co. v. Minnesota, 134 U. S. 418 (1890), had shifted his position completely and was with the majority in Smyth v. Ames, 169 U. S. 466 (1898).

28. Budd v. New York, 143 U. S. 517, 548 (1892); cf. Henderson, op. cit., pp. 904 ff.

29. Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418, 458 (1889); through the opinions of Justice Brewer in Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362, 397 (1894) and of Justice Harlan in Smyth v. Ames, 169 U. S. 466, 523 ff. (1898), the change in position was completed. Under the Fourteenth Amendment it has since been repeatedly held that "the rates must be sufficient to cover reasonable operating expenses, plus a proper allowance for depreciation, plus a fair return upon the value of the property; in short, there must be a reasonable judgment having its basis in the proper consideration of all relevant facts." R. L. Hale, "Rate Making and the Revision of the Property Concept," Columbia Law Review XXII (March, 1922), 209.

For the opinions of Justice Brewer as Circuit Justice supporting an extensive judicial review to protect the vested rights of utility corporations, see Ames v. Union Pac. Ry. Co., 64 Fed. 163, 176 (1894) and National Waterworks Co. v. Kansas City, 62 Fed. 853, 864 ff. (1804). See also Justice Brewer's opinion holding invalid an act of Congress which abolished the tolls charged by a private company on river traffic with an express provision that the value of the franchise was not to be included in the condemnation proceedings. A franchise, he said, "is a vested right. The state has power to grant it. It may retake it, as it may other private property, for public use, upon the payment of just compensation ... but it can no more take the franchise which the state has given than it can any private property belonging to the individual." Monongahela Navigation Co. v. United States, 148 U. S. 312, 341 (1893).

30. 134 U. S. 418, 462 (1889).

31. 134 U. S., 466.

32. Cf. Opinion of Justice Field in the Santa Clara Railroad Tax Case, 9 Sawyer 165, 210, and of Justice Harlan in Santa Clara County v. Southern Pacific Railroad Co., 118 U. S. 394 (1886); also Justice Field in Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 188 (1888) and Minneapolis and St Louis Ry. Co. v. Beckwith, 129 U. S. 26, 28 (1889) Also Henderson, The Position of Foreign Corporations in American Constitutional Law, chap. 9. That a foreign corporation was entitled to the equal protection of the laws was held, also, in Pembina Mining Case, infra, and Southern Railway Co. v. Greene, 216 U. S. 400, 412 (1910).

Mr. Smith claims by rendering the inhibitions of the Fourteenth Amendment applicable to corporations the Constitution of the United States was amended "by the act of the judiciary alone." "We approach now," he asserted, "a Revolution in our form of government accomplished by the Supreme Court of the United States, so startling that it seems almost incredible, and this Revolution was completed so silently that it has passed almost unnoticed even by the careful historians of the Constitution and of the Court." F. Dumont Smith, "Decisive Battles of Constitutional Law," American Bar Association Journal, X (July, 1924), 505, and The Constitution: Its Story and Battles (Los Angeles, 1926), p. 359.

33. Justice Swayne in Shields v. Ohio, 95 U. S. 319, 325 (1877).

34. For about thirty years "we have had every species of state action productive of permanent loss to vested rights, or limiting business liberty, put to the acid test of due process in the Supreme Court." Hough, op. cit., p. 229. The decisions as to public utility rates and regulations are regarded as "extraordinary in the extent of the power which they place in the hands of the courts, and in the way in which they tie the hands of the state legislatures in respect to subjects over which it has always been considered they had absolute control ... the will of the people in this, as in other respects, is expressed through the acts of their representatives in the legislature. The opinion that the reasonableness of an act is not a legislative but a judicial question substitutes the will of the judges for the will of the people. Mr. Justice Bradley clearly foresaw this, and deeply regretted the inevitable conflict between the courts and the legislature." "The Judicial Record of Justice Bradley," William Draper Lewis in The Miscellaneous Writings of Joseph P. Bradley (1902), p. 25. "After the Chicago Case," says Justice Hough, "legislators were arraigned before the bar and courts passed judgment not, mark you, on the justice or wisdom, but on the reason, of what they had done." Harv. Law Rev., XXXII, 228. For an analysis of the shifting of Supreme Court justices in defining the terms "liberty" and "property" from the standpoint of an economist, consult John R. Commons, Legal Foundations of Capitalism (New York, 1924), especially chap. 9.

For review of the decisions of public utility commissions by the federal courts in order to make sure that the decisions are "fair" and "reasonable," consult John Dickinson, Administrative Justice and the Supremacy of the Law in the United States (Cambridge, 1927), chap. 6.

35. Justice Field, in holding void a personal judgment rendered by a state court in an action in personam against a non-resident upon whom no personal service was made, defined due process of law so as to include a portion of the concept of natural law: "They then mean a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution — that is, by the law of its creation: to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its protection by service of process within the state, or his voluntary appearance." Pennoyer v. Neff, 95 U. S. 714, 733 (1877). For an approval of this interpretation, see opinion of Justice Gray in Scott v. McNeal, 154 U. S. 34, 46 (1894).

36. See dissent in Slaughter-House Cases, 16 Wall. 36, 95 (1872); also opinion of Justice Brewer in Monongahela Navigation Co. v. United States, 148 U. S. 312, 324 (1892). Justice Brewer regarded the Declaration of Independence as the cornerstone of the federal Constitution. Cf. address, Yale Law School, June, 1891, on "Protection to Private Property from Public Attack."

37. Butchers' Union Co. v. Crescent City Co., 111 U. S. 746, 756 (1883). This opinion, though it was not in accord with the majority views of the Supreme Court, had an extensive influence on the state courts — "It produced a reactionary line of decisions in New York on liberty to pursue one's calling, and through these cases its echoes are still ringing in the books." Pound, "Liberty of Contract," Yale Law Journal, XVIII (May, 1909), 454, 470.

38. Barbier v. Connolly, 113 U. S. 27, 31 (1885).

39. Cf. the recognition of liberty of contract as an inalienable right of a citizen by Justice Brewer in Frisbie v. United States, 157 U. S. 160, 165 (1894). The main guaranty of private rights against unjust legislation is found in the due process clause, according to Justice Andrews. As protected under this clause Justice Andrews thought "the right to life includes the right of the individual to his body ... the right to liberty, the right to exercise his faculties and to follow a lawful avocation for the support of life; the right of property, the right to acquire power and enjoy it in any way consistent with the equal rights of others and the just exactions and demands of the state." Bertholf v. O'Reilly, 74 N. Y. 509, 515 (1878). See also Godcharles v. Wigeman, 113 Pa. St. 431, 6 Atl. 354 (1886); Millett v. People, 117 Ill. 294, 7 N. E. 631 (1886); Braceville Coal Co. v. People, 147 Ill. 66, 35, N. E. 62 (1893); State v. Loomis, 115 Mo. 307, 22 S. W. 350 (1892); State v. Norton, 5 Ohio N. P. R. 183 (1898); State v. Goodwill, 33 W. Va. 179, 10 S. E. 285, 863 (1889); in re House Bill, 21 Col. Rep. 27 (1895); Ritchie v. People, 155 Ill. 98, 104 ff. (1895); and People v. Williams, 189 N. Y. 131 (1907).

For summary of decisions developing the doctrine of liberty of contract from 1890-99, cf. Pound, "Liberty of Contract," Yale Law Jour., XXIII, 472 ff. and G. G. Groat, "Economic Wage and Legal Wage," Ibid., XXXIII (March, 1924), 488, 494. The application of this concept by the Supreme Court in invalidating a Minimum Wage Act for the District of Columbia, in Adkins v. Children's Hospital, 261 U. S. 525 (1923), will be considered later. According to Louis D. Brandeis, "Courts continued to ignore newly arisen needs. They have applied complacently eighteenth century conceptions of liberty of the individual and of the sacredness of private property ... where statutes giving expression to the new social spirit were clearly constitutional, judges, imbued with the relentless spirit of individualism, often construed them away." Illinois Law Review, X (February, 1916), 461, 464. Though some of the illiberal decisions relating to labor contracts have been reversed, the liberty of contract doctrine still stands as a bar to progressive measures in the field of labor legislation. Cf. Ritchie v. Wayman, 244 Ill. 509 (1910) and People v. Charles Schweinler Press, 214 N. Y. 395 (1915).

40. The concept of liberty of contract which was formulated by Justice Field, and developed in a series of state decisions, was thus defined by Justice Shope in the Braceville Coal Company case: "The fundamental principle upon which liberty is based, in free and enlightened government, is equality under the law of the land. It has accordingly been everywhere held, that liberty, as that term is used in the constitution, means not only freedom of the citizen from servitude and restraint, but, indeed, to embrace the right of every man to be free in the use of his powers and faculties, and to adopt and pursue such avocation or calling as he may choose, subject only to the restraints necessary to secure the common welfare. 147 Ill. 66, 71 (1893). In most cases the language of Justice Field was used, with variations to suit the circumstances of the case.

41. Allgeyer v. Louisiana, 165 U. S. 578, 591 (1897).

42. "The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So the right of the employé to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason to dispense with the services of such employé. It was the legal right of the defendant, Adair, — however unwise such a course might have been, — to discharge Coppage because of his being a member of a labor organization, as it was the legal right of Coppage, if he saw fit to do so, — however unwise such a course on his part might have been, — to quit the service in which he was engaged, because the defendant employed some persons who were not members of a labor organization In all such particulars the employer and the employe have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land," Adair v. United States, 208 U. S. 161, 174-175 (1908).

43. "Included in the right of personal liberty and the right of private property — partaking of the nature of each — is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money." Coppage v. Kansas, 236 U. S. 1, 14 (1915).

44. Commenting on the fact that the due process clauses of the Fifth and Fourteenth Amendments were rarely invoked as an aid to protect private rights or referred to by justices prior to 1880, Mr. Willis says: "Finally, with the case of Davidson v. New Orleans, 96 U. S. 97 (1878), and a long line of cases following it. Coke's doctrine of a supreme fundamental law was merged in the doctrine of due process of law, and legislation has since then been set aside because not due process of law but not because in violation of some supreme fundamental law." Hugh Evander Willis, "Due Process of Law under the United States Constitution," University of Pennsylvania Law Review, LXXIV (February, 1926), 331, 335.

45. In considering the application of a woman to practice law, Justice Hackney claimed: "There is a law higher in this country, and one better suited to the rights and liberties of the American citizens, the natural right to gain a livelihood by intelligence, honesty and industry in the arts, the sciences, the professions, or other vocations" and the exclusion from such practice was held to interfere with inalienable rights, citing Justice Field in Cummings v. Missouri, 4 Wallace 277, 321. In re Leach, 134 Ind 665, 668 (1893).

46. In 1896 and 1897 it was held that due process of law was a limitation on the power of eminent domain. Fallbrook Irrigation District v. Bradley, 164 U. S. 113 (1896); Chicago, Burlington and Quincy Ry. Co. v. Chicago, 166 U. S. 226 (1896).

47. Instead of the judges having discovered new meanings for due process of law, Dr. Mott claims they have merely appropriated portions of a general residual meaning. Mott, Due Process of Law, p. 590. From this viewpoint an unappropriated portion of this concept will always be available to keep legislators in the straight and narrow paths which judges lay out.

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