TO GIVE due process of law a more effective scope as a criterion to measure the validity of new legislative projects, the justices who were exponents of conservative principles and laissez faire policies adopted the dicta of a few authorities on Magna Carta and of several state justices that this phrase was designed to prevent all governmental acts arbitrary in their nature and to preserve the fundamental principles of a free republican government. The application of a rule of reason or a rule of expediency as a primary standard to evaluate the propriety of legislation was accomplished by making due process of law an inhibition against arbitrary legislative or administrative acts, against any interference with the fundamental rights of the individual, and against social and economic legislation which was regarded unreasonable or discriminatory.

1. Arbitrary Legislative and Administrative Acts are Void. Locke is credited with suggesting the idea that exercising governmental powers in an arbitrary manner is unconstitutional.[1] The suggestion of this idea, however, may be traced to opinions rather common in ancient and mediaeval times. The claims that certain clauses of Magna Carta were intended to check all forms of arbitrary political authority,[2] had few supporters in England, as we have seen, but was repudiated by all parties prior to the time that the American colonies set up new governments.

Early in the nineteenth century the belief had been expressed in the United States that the law of the land provision was intended to remove arbitrary power from every branch of the government.[3] One justice declared that "the framers of the constitution never dreamed of permitting the exercise of arbitrary power in any department of government."[4] The suggestion that due process of law was intended to secure the individual from the arbitrary exercise of the powers of government[5] and that the security of a citizen against arbitrary legislation rested upon the broader and more solid ground of natural rights, and was not wholly dependent on those negatives upon the legislative power contained in the constitution,[6] gave an indication of possible future interpretations of due process of law. But there were few occasions to consider these comments or to apply them concretely[7] until a similar doctrine was adopted by the Supreme Court of the United States, and made a part of the due process clause of the Fourteenth Amendment. Justices Bradley and Field were among the first to suggest the notion that the Fourteenth Amendment was intended to be an inhibition against arbitrary legislative and administrative acts.[8] They pleaded for an extensive application of the requirement of due process of law to all state acts, and suggested that if such acts were "arbitrary, oppressive, and unjust," they might be declared not to be in accord with due process of law.[9]

When judges insisted that "under our institutions, arbitrary power over another's lawful pursuits is not vested in any man nor in any tribunal,"[10] due process of law, applied in England only as a guard against executive usurpation, was destined to become in the United States a bulwark against arbitrary legislation.[11] This new standard for legislative acts was applied when it was determined that the validity of statutes was not to be tested in the federal courts unless "they are clearly inconsistent with some power granted to the general government or with some right secured by that instrument or unless they are purely arbitrary in their nature."[12]

The phrase "equal protection of the laws," though not in the Fifth Amendment of the federal Constitution, and not, as a rule, in the state constitutions, had been interpreted as a requirement for legislative and executive acts by certain justices in state and federal courts prior to 1879.[13] It was used without any clear indication as to the purpose of the phrase in the draft of the Fourteenth Amendment which was finally adopted, and the courts were loath to apply its vague content to concrete cases until there was a determined effort on the part of certain justices to incorporate the natural rights philosophy and the doctrine of equality of the Declaration of Independence into the Fourteenth Amendment, in order to condemn acts which the judges regarded as arbitrary or unreasonable.[14] The movement to declare void acts judicially construed as arbitrary[15] found the equal protection clause a supplement to what would otherwise have been construed as a requirement of due process of law. That due process would ultimately have been interpreted as involving the equal protection principle is shown by the fact that statutes regarded as conferring undue favors, class privileges, or discrimination are seldom attacked on the equal protection clause alone, but also as a denial of due process of law.

Due process of law and equal protection of the laws, then, combined were being construed with wide enough scope to prevent all legislative and administrative acts which the justices regarded as arbitrary and, like certain other implied limits on legislatures, the equal protection principle was made an essential part of the concept of due process of law.[16] Hence acts which were not general in their application to a particular class were held not to be in accord with the due process and equal protection phrases of the Fourteenth Amendment.[17]

"The due process clause requires," said Chief Justice Taft,

that every man shall have the protection of his day in court, and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.[18]

And Justice Holmes believes that state acts interfering with liberty should be held valid unless "a rational and fair man" would admit that they necessarily infringe "fundamental principles as they have been understood by the traditions of our people and our law."[19] But where is the rational and fair man, what are the fundamental principles, and how are the traditions of the people to be discovered? Since when has the sole custody of these principles and traditions been assigned to the judges?

The way in which judges made limitations applicable to legislative action is admirably shown in one of Cooley's dicta:

The bills of rights in the American constitutions forbid that parties shall be deprived of property except by the law of the land; but if the prohibition had been omitted, a legislative enactment to pass one man's property over to another would nevertheless be void. If the act proceeded upon the assumption that such other person was justly entitled to the estate, and therefore it was transferred, it would be void, because judicial in its nature; and if it proceeded without reasons, it would be equally void, as neither legislative nor judicial but a mere arbitrary fiat.[20]

Those who defend the application of judicial standards for the justness or fairness of legislative action claim that it is the only way that unjust interference, not called for by the public needs, with private property and personal liberty can be effectively prevented. But what are unjust interferences with private property, and do these not depend upon changing times and conditions which may be perceived by legislators as well as by judges? And who shall determine what the public needs demand, the representatives of the people or arbiters who have assumed the rôle of umpires?[21]

2. Acts Contrary to Fundamental Rights are Void.[22] Among the ideas which have supplemented other phases of the elastic term "due process of law," in limiting legislative functions, is the doctrine that there are immutable fundamental rights or principles which no governmental authorities may invade.

Notions of natural law and of fundamental natural rights, as we have noted, were among the dominant notions of the leaders of the American Revolution and of the framers of the first written constitutions in the United States. Governments, it was believed, were instituted primarily to preserve these rights. And it was taken for granted that legislative enactments which contravened such rights were void, though ideas as to how to prevent such legislative acts or to assure protection to the people against illegal procedure under them were often indefinite. The assertion by the courts of the right to review the constitutionality of legislative acts and to become the special guardians of the written instruments containing assertions of natural rights gave a new turn to the legal applications of the fundamental rights philosophy.

It was in connection with the interpretation of the privileges and immunities guaranteed to the citizens of the several states by the federal Constitution that the doctrine of fundamental rights was early announced. Justice Washington said:

"We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature fundamental; which belong, of right, to the citizens of all free governments." Though it was regarded as difficult to enumerate these fundamental privileges a few were suggested, such as the enjoyment of life and of liberty, the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject to such restraints as the government may prescribe for the general good.[23] "Standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and letter of the Constitution of the United States," Justice Story held invalid a state legislative act which attempted to interfere with the vested property rights of a corporation.[24] The rather common belief in fundamental rights also received his sanction when he called attention to the "fundamental maxims of free government," which required that the rights of personal liberty and private property should be held sacred.[25]

When the doctrines of the Federalists and of conservative thinkers generally lost ground and were repudiated by all departments of the government, including the judiciary, in favor of popular theories of political control, little was heard for several decades of immutable fundamental rights in state or federal courts.[26]

The doctrine was reaffirmed after the Civil War by Justice Chase[27] and then by Justice Miller, who insisted that there are rights in every free government beyond the control of the state and that there are limitations which grow out of the essential nature of all free governments, "implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name."[28] All men, thought Justice Field, have certain inalienable rights; among these are life, liberty, and the pursuit of happiness; in the pursuit of happiness all avocations, all honors, all positions, are alike open to everyone; and in the protection of these rights are all equal before the law.[29]

The eighteenth-century notion of fundamental rights beyond the realm of government interference and the concept of inalienable rights as formulated in the Declaration of Independence which, it was thought, governments were designed to protect, have now been incorporated by means of judicial construction as essential elements of due process of law and as necessary principles of the American system of government.[30]

Few lawyers or judges were as frank as Justice Harlan who was among those applying natural law ideas, when he said: "the courts have rarely, if ever, felt themselves so restrained by technical rules that they could not find some remedy, consistent with the law, for acts, whether done by government or by individual persons, that violated natural justice or were hostile to the fundamental principles devised for the protection of the essential rights of property."[31]

Justice Moody was similarly frank when he preferred to rest the decision regarding exemption from self-incrimination on broader ground than the strict language of the Constitution and raised the query, "Is it a fundamental principle of liberty and justice which inheres in the very idea of free government and is the inalienable right of a citizen of such a government? If it is, and is of a nature that pertains to process of law, this court has declared it to be essential to due process of law."[32]

Despite these apparent applications of principles of reason, or of natural law and natural justice in the opinions of the justices and of the marked change in the meaning of due process of law, the assertion is repeated consistently that judges in the decision of cases have nothing to do with the wisdom, justice, or expediency of legislative acts.[33]

3. Police Regulations must be Reasonable. The extensive limitations which were inserted in the state constitutions and the implied limitations developed by the courts placed many restrictions upon the authority of the states and rendered it difficult to meet the public needs and requirements. Hence the doctrine of the police power was conceived as a kind of safety-valve through which the necessary authority for the protection of the public order, public morals, and public health might be authorized despite these restrictions.[34] But the exercise of such powers, it was eventually held, was subject to the requirements of due process of law and equal protection of the laws and the general necessity of reasonableness. American courts, following the English practice, held that the by-laws of a municipal corporation, unless expressly authorized by a legislative act, must be reasonable, and must not be inconsistent with the general principles of the common law, particularly those having relation to the liberty of the individual or the rights of private property.[35] This meant that ordinances might be held void which were deemed unfair, oppressive, or discriminatory.

State legislatures, also, in their efforts to regulate social and industrial conditions were held subject to the requirement that "under the mere guise of police regulations personal rights, and property rights cannot be arbitrarily invaded, and the determination of the legislature is not final or conclusive."[36] It was also held for the courts to decide whether a regulation had in fact some relation to the public health, whether it was appropriate, and adapted to the end aimed at.[37]

The federal justices, who first refused to interfere with the police powers of the state under the due process provision, were prevailed upon to adopt the dictum of the New York court,[38] that the power to regulate is not the power to destroy,[39] and to render this dictum applicable to all types of social legislation. A rule of reason test for police regulations extensive in its scope was also formulated by Justice Peckham.[40]

A state law, therefore, might be held void when enacted to protect the public health, the public morals, or the public safety if it had "no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law."[41]

The criteria by which the Supreme Court determines whether a state act is a legitimate exercise of the police power are:

1. The object of the legislation must be permissible.

2. The means must have a substantial relation to the end.

3. Fundamental rights must not be infringed.

4. The effect of the enforcement of the law must not be arbitrary, unreasonable, or oppressive.[42]

Thus it will be seen that the courts may adopt Locke's dictum and hold that an act which appears to them unwise is not within the scope of legislative action. Or they may conclude that the ways and means adopted by the legislature are not appropriate to accomplish the object intended. If an act meets these tests it may run afoul of the fundamental rights of the individual and what are fundamental rights has never been determined. Finally, it must meet the test of reasonableness, which is the most difficult of all requirements, for who knows what will appear reasonable to the judicial mind?[43] It is not surprising then for the conclusion to be reached, after a thorough analysis of the attempts to apply the criterion of due process of law to cases arising under the police power, that the opinions of the Supreme Court "have confused rather than clarified the subject and that from such attempts have come no rules, standards, or principles capable of certain applications to concrete cases."[44]

The criteria upon which the court proceeds in such cases, it is observed, are largely subjective and depend upon the personal, political, and economic opinions of the justices. The terms "arbitrary," "unreasonable," and "oppressive" are not defined in the written law and can be applied only "in the light of the judges' own mental processes."[45] It is here that the silence of the Constitution speaks in a voice tuned only to judicial ears.

The situation resulting from the application of the general language of the Fourteenth Amendment to state legislation on social and industrial matters is thus summarized by Mr. Nesbitt:

The difficulty with what I have chosen to call the categorical view of the due process of law requirement as applied to legislation, dealing with social and economic changes, is that it extols bare authority at the expense of experience; that it results in the deductive application of general principles to precise facts often without any accommodation to the particular situation out of which the legislation has arisen; that it tends to limit the content of the clauses to a fixed, unconditional meaning, precluding all flexibility in their application; that it construes the due process of law clauses not so much as broad guarantees of "relatively fundamental rights" as the regulations of a code, as arbitrary abstract principles rather than organic rules; and that it excludes consideration of public opinion as a fact to be taken into account in determining the reasonableness of legislation, thus making the opinion of the court as fixed by judicial experience the measure of the limit of the legislative function. The standard of reasonableness which it would apply is remote and traditional.[46]

There is involved in much of the reasoning of the judges in the cases under the police power an assumption of inherent superiority of the wisdom and judgments of justices over the judgments of members of the other departments of government. The legislature, it is asserted, cannot invade the rights of person or property, under the guise of a police regulation when it is not such in fact. It is insisted also that it is the province of the judiciary to determine when personal or property rights have been invaded and whether a measure is appropriate for the desired object.[47] Constitutions do not define police regulations which do or do not invade personal or property rights nor do they give any indication as to the appropriate objects of such regulations. Police power as a constitutional concept is a judge-made concept arising from the assumption that legislatures are disposed to fritter away constitutional inhibitions and that it is the duty of judges to prevent such legislative depredations. The term "police power" was hit upon as a convenient phrase for the courts to determine whether a legislative act which interfered with private rights was reasonable enough to have judicial approval.

What the whole matter amounts to, we are told, is: "There must be some sort of reasonable balance between the degree of interference with private rights and the public benefit which may be expected to flow from that interference."[48] What is a "reasonable balance," and who is in the best position to decide this question — a judge or a legislator — probably a judge if the chief object is to preserve private rights, and a legislator if the public interest and convenience is to be given superior weight?

4. Results of the Extension of the Meaning of Due Process of Law. With judicial review of legislative enactments applied via due process of law to the main lines of public regulation of business and economic conditions, it was not long before the Fourteenth Amendment took its place as the foremost feature of the federal Constitution, so far as the limitations on the powers of the states are concerned. Whereas for the first twenty years after the adoption of the amendment about one case per year on the average arose under its provisions, it was not long before thirty or more cases were adjudicated in the same period. In such important fields of state power as eminent domain, taxation, public utility regulation, and the police power, state and local acts had been attacked before the Supreme Court in more than six hundred cases to the year 1910.[49]

To 1910 according to the table of Collins the following questions had been raised under the Fourteenth Amendment:

Eminent domain .................. 27 cases

Taxation ........................... 144 "

Matters of procedure ........ 146 "

Police power .................... 302 "

Most of the cases which have arisen under this amendment have been decided since 1896. From 1900 to 1913 there were four hundred and nine opinions or about thirty one per year. Out of a total of more than six hundred cases only twenty-eight dealt with the rights of the negro race for whose protection the amendment was primarily enacted. More than half of the cases have come to the court on appeals of public utility interests and other corporate organizations asking protection from the acts of the legislatures and administrative agencies of the states.[50] Though the amendment was enacted primarily as a charter of liberty for the negro race it has been used to a great extent by corporations, public and private, to resist the efforts toward public regulation and to check the exercise of state authority through eminent domain, taxation, and the police power.[51]

As a result of such a series of decisions, quasi-legislative in character, the prohibitions involved in due process of law were held applicable to substantive law as well as to legal procedure, to executive, administrative, and judicial acts as well as to legislation, and to corporations as well as to natural persons.[52] Writing in 1919, Judge Hough believed that "the direct appeal of property to due process of law had for the most part failed.... The indirect appeal through liberty is still going on.... But it is dying, and the courts, when invoked today under the due-process clause, are doing little more than easing the patient's later days."[53] That this prediction is not being fulfilled is shown by the fact that since 1920 more acts in the field of social and economic legislation have been invalidated under the due process clause than were set aside from 1868 to 1920.[54]

Phrased in percentages this means that from 1868 to 1912 the Court held against the legislature in a very little more than six per cent of the cases; from 1913 to 1920 in a little more than seven per cent of the cases; while since 1920 the Court has held against the legislature in twenty-eight per cent of the cases. And if we go behind the decisions and look at the votes of the individual judges in each case, we will find the same startling increase in the number of opinions adverse to the validity of legislation under the due process clauses. In the period up to 1921 the judicial vote was cast approximately ninety per cent in favor of the various statutes considered, and only ten per cent against. Since then, however, the favorable vote has shrunk to about sixty-nine per cent and the adverse vote grown to thirty-one per cent.[55]

Evidently the justices regard with increasing seriousness their assumed duty to guide political action in a safe course so as to avoid the dangers of economic or social radicalism.

5. Some Examples of Higher Law Concepts in Recent Supreme Court Decisions. The doctrine of liberty of contract, an inalienable-right product, is now construed as involved in the Fifth and Fourteenth Amendments. This doctrine was applied in a decision of the Supreme Court of the United States by holding invalid the Minimum Wage Act passed by Congress for the District of Columbia.[56] Justice Sutherland, rendering the opinion of the court, held that the right to contract about one's affairs is a part of the liberty of the individual protected by the Fifth Amendment. Quoting with approval the much criticized opinion of Justice Peckham in the case of Lochner v. New York,[57] he concluded that the Act of Congress was

simply and exclusively a price-fixing law, confined to adult women — who are legally as capable of contracting for themselves as men. It forbids two parties having lawful capacity — under penalties as to the employer — to freely contract with one another in respect of the price for which that one shall render services to the other in a purely private employment where both are willing, perhaps anxious, to agree.[58]

The standard for the guidance of the board under the act was regarded so vague as to be impossible of practical application. It took into account the necessities of only one party to the contract and it fixed an arbitrary wage payment and thus interfered with economic laissez faire; altogether the act, Justice Sutherland declared, was "clearly the product of a naked, arbitrary exercise of power."[59]

Chief Justice Taft, dissenting, with whom concurred Justice Sanford, took issue with the contention that there is, in many instances, a substantial equality as between employer and employee. He admitted that the policy of a compulsory minimum wage is one on which there is much dispute but he thought it was "not the function of this court to hold congressional acts invalid simply because they are passed to carry out economic views which the Court believes to be unwise or unsound."[60] The principle of the limitation of liberty of contract was recognized by the court in the regulation of wages and labor conditions under the police power and it seemed difficult to understand the difference between regulating the manner and time of payment of wages or fixing maximum hours of labor and the fixing of a minimum wage.[61]

In his opinion the Lochner Case was overruled and he expressed surprise at the attempt of the majority justices to quote the case as a precedent. The intimation that the controlling effect of earlier opinions had been weakened by the Nineteenth Amendment was answered by the statement that this amendment did not change the differences between men and women recognized by Congress in the passage of this act.

Justice Holmes also dissented and observed that:

Notwithstanding the deference due to the prevailing judgment of the Court, the power of Congress seems absolutely free from doubt. The end, to remove conditions leading to ill health, immorality, and the deterioration of the race, no one would deny to be within the scope of constitutional legislation. The means are the means that have the approval of Congress, of many states, and of those governments from which we have learned our greatest lessons. When so many intelligent persons, who have studied the matter more than any of us can, have thought that the means are effective and are worth the price, it seems to me impossible to deny that the belief reasonably may be held by reasonable men....

The earlier decisions upon the same words in the Fourteenth Amendment began within our memory, and went no farther than an unpretentious assertion of the liberty to follow the ordinary callings. Later that innocuous generality was expanded into the dogma, liberty of contract. Contract is not specially mentioned in the text that we have to construe. It is merely an example of doing what you want to do, embodied in the word liberty. But pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts.[62]

The opinions of Justice Van Orsdel of the District of Columbia Court and Justice Sutherland illustrate the attenuated methods of reasoning involved in declaring void legislative acts under the phrase "due process of law."[63] They likewise illustrate the process of judicial interpretation by which implied limitations on legislative powers are extracted from the general language of constitutions. It is the method of reasoning which first discovered a doctrine of vested rights which might be preserved whether or not constitutions gave such a protection, which found inherent limitations on legislatures to protect property rights through the terms "public purpose" and "public use," and which, lacking any express provision, fell back on the spirit of the constitution or the general principles of free government to condemn, as Justice Holmes suggests, what "a tribunal of lawyers does not think about right."[64] Both justices assume certain fundamental principles and then by what appears to them as "indubitable demonstration" they conclude that the acts are arbitrary, unreasonable, and necessarily void — as contrary to due process of law. Here is an application of the old natural rights and natural law philosophy, combined with the mechanical concept of the functions of the court. That there is no clear dividing line between arbitrary restraint and reasonable regulation; that the determination of the dividing line is largely one of policy on which the judgment of the legislature with the full facts before it ought to be relatively sound, or can be readily changed, if found unsound; and that a court is overstepping the bounds of its legitimate authority to pass on the wisdom or folly of the economic policy of wage legislation, did not make any difference to the justices imbued with the doctrine of fundamental principles or of a modern Naturrecht.

Conceived in the spirit of individualism and laissez faire characteristic of the pioneer conditions which prevailed in a large part of the country more than a generation ago, the concept of liberty of contract as an absolute right is ill suited to the industrial conditions now prevailing in many American communities.[65] If there is any field in which the precept should prevail that law is a progressive science, that rights are subject to restrictions and limitations as the social interest may require, and that the determination as to what restrictions are on the whole wise and salutary belongs primarily to the legislature, it is the growing field of the necessary regulations and adjustments in the wage contract. A minimum wage law may or may not be wise from the economic or social viewpoint. But the best way to determine its wisdom or unwisdom would appear to be to give it a trial under terms and conditions laid down by a legislative body which could change those conditions, if the act proved unwise after a fair trial. For the court to prevent such experimentation, with the care, foresight, and experience manifested in the enactment and administration of labor laws, under an attenuated view of due process of law, protecting liberty and property, is to place too heavy a burden upon the judiciary and to throttle the avenue of advance for government to meet the growing needs of modern economic and industrial society.

When the bakers resisted the enforcement of a Nebraska statute providing for standard sizes for loaves of bread with an allowance for an excess over the specified standards, as unnecessary, unreasonable, and arbitrary, the Supreme Court held, Justice Butler rendering the opinion, that the state may not "under the guise of protecting the public arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them." The provisions of an act must have, he demanded, a reasonable relation to the protection desired to be accomplished.[66] Regarding the act as essentially unreasonable and arbitrary it was held void as contrary to the Fourteenth Amendment.

Justice Brandeis, dissenting, stated the problem of the application of the rule of reason in such cases as follows:

With the wisdom of the legislation we have, of course, no concern. But, under the due process clause as construed, we must determine whether the prohibition of excess weights can reasonably be deemed necessary; whether the prohibition can reasonably be deemed an appropriate means of preventing short weights and incidental unfair practices; and whether compliance with the limitation prescribed can reasonably be deemed practicable. The determination of these questions involves an enquiry into facts. Unless we know the facts on which the legislators may have acted, we cannot decide whether they were (or whether their measures are) unreasonable, arbitrary, or capricious.[67]

After an extensive summary of evidence showing the practical necessity of the prohibition of excess weights as a means of preventing short weights, he concluded:

The evidence contained in the record in this case is, however, ample to sustain the validity of the statute. There is in the record some evidence in conflict with it. The legislature and the lower courts have, doubtless, considered that. But with this conflicting evidence we have no concern. It is not our province to weigh evidence. Put at its highest, our function is to determine, in the light of all facts which may enrich our knowledge and enlarge our understanding, whether the measure, enacted in the exercise of an unquestioned police power and of a character inherently unobjectionable, transcends the bounds of reason. That is, whether the provision as applied is so clearly arbitrary or capricious that legislators acting reasonably could not have believed it to be necessary or appropriate for the public welfare.

To decide, as a fact, that the prohibition of excess weights "is not necessary for the protection of the purchasers against imposition and fraud by short weights"; that it "is not calculated to effectuate that purpose"; and that it "subjects bakers and sellers of bread" to heavy burdens, is, in my opinion, an exercise of the powers of a super-legislature — not the performance of the constitutional function of judicial review.[68]

Again the majority of the court, as in the Minimum Wage Case, refused to accept the judgment of the legislature on the facts and then condemned the policy determined by the legislative body to deal with the facts.

The vacillation and uncertainty involved in according a general power of review over state acts to judges who are likely to be unfamiliar with the local conditions which prompted the acts are shown in many recent cases. There are cases in which the judges indicate a disposition to place the burden of proof upon those who attack state statutes and to defer to the judgment of state authorities, legislative and judicial.[69] When this tendency was beginning to be considered as a rule of law,[70] the justices again showed an inclination to resort primarily to their own judgments of facts and local conditions. The refusal to give special consideration to local conditions, is indicated in the New York Theater Ticket Case.[71]

The New York legislature passed a law to remedy notorious abuses in the resale of theater tickets, because in its judgment the matter was of sufficient public interest to warrant public regulation. But the Supreme Court declared the law void on the ground that the act was an unwarranted interference with a private business. "The mere declaration by the legislature," said Justice Sutherland, "that a particular kind of property or business is affected with a public interest is not conclusive upon the question of the validity of the regulation. The matter is one which is always open to judicial inquiry."[72]

Justice Holmes, who has expressed more frequently and insistently than any other justice the view that the justices have substituted their views of public policy for those of the legislature, said in a dissenting opinion,

I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular court may happen to entertain.... I am far from saying that I think this particular law a wise and rational provision. That is not my affair. But if the people of the State of New York speaking their authorized voice say they want it, I see nothing in the Constitution of the United States to prevent their having their will.[73]

Reasonable as this opinion may seem, the majority of the Supreme Court have declared otherwise. Again, when Minnesota attempted to prohibit buyers of dairy products from discriminating between localities, the majority of the Supreme Court refused to accept the legislative determination of facts and held the law invalid as an unwarranted interference with freedom of contract.[74]

The way in which the Supreme Court makes law in interpreting the Fourteenth Amendment is illustrated in the gradual inclusion of the first eight amendments, which were held to apply only to federal law and procedure,[75] as a part of the Fourteenth Amendment — and hence as limitations on state laws and procedure. Subsequent to the Barron Case it was held frequently that the provisions of the Bill of Rights of the federal Constitution were not applicable to state action. This opinion was reaffirmed in recent decisions when it was asserted that "neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restriction about freedom of speech."[76] But three years later Justice Sanford, upholding the validity of the New York Criminal Anarchy Law, said:

"We may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgement by Congress — are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States."[77]

Repeated efforts to secure protection from the federal courts in such matters as state interferences with the right of suffrage, the right of assembly, the right to bear arms, the right of impartial trial, the right against cruel and unusual punishment, the right against compulsory self-incrimination[78] were given little countenance prior to 1925. In 1925 it is assumed without argument or discussion that the fundamental rights and liberties of the first eight amendments are protected by the due process clause of the Fourteenth Amendment. "Despite arguments to the contrary which had seemed to me persuasive," said Justice Brandeis,

it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the federal Constitution from invasion by the states. The right of free speech, the right to teach, and the right of assembly are, of course, fundamental rights.[79]

Justice Stone, speaking of the holding of the Supreme Court that the Sherman Anti-Trust Law prohibits only such restraints upon interstate commerce as are unreasonable, says: "Reasonableness is not a concept of definite and unchanging content. Its meaning necessarily varies in the different fields of the law, because it is used as a convenient summary of the dominant considerations which control in the application of legal doctrines." And recognizing the uncertainty of the test of reasonableness as a legal concept, he continues:

Moreover, in the absence of express legislation requiring it, we should hesitate to adopt a construction making the difference between legal and illegal conduct in the field of business relations depend upon so uncertain a test as whether prices are reasonable — a determination which can be satisfactorily made only after a complete survey of our economic organization and a choice between rival philosophies.[80]

If such complete economic surveys had been made would a ten-hour bakeshop law, or a minimum wage law as well as a number of other state and federal acts have been declared void?

When the Fourteenth Amendment was construed to prohibit state legislative and administrative acts which were deemed arbitrary, to prevent any interference with fundamental rights, to require that all state and local police regulations must be reasonable, and the justices determined that it was their duty to examine the facts on which state legislative and administrative policies were based as well as the ends to be accomplished by regulation, a change in the American system of government was effected, the results of which are only beginning to be realized. The change has its roots in the political and legal thinking of earlier periods but few could have surmised what a significant turn in political practice was to follow from a slow and silent revolution in constitutional interpretation.[81]

1. See F. W. Maitland, "An Historical Sketch of Liberty and Equality" in Collected Papers (ed. by H. A. L. Fisher, Cambridge, 1911), I, 80, 83.

2. Cf. Mott, Due Process of Law, chaps. 3 and 4.

3. For use of the terms "arbitrary" or "unreasonable" in passing on the validity of legislative acts in the United States, consult Robert P. Reeder, "Is Unreasonable Legislation Unconstitutional";" University of Pennsylvania Law Review, LXII (January, 1914), 191.

4. See comments of Attorney General Haywood in State v. — 29, 30 (N. C., 1794) and of Justice Peck in State v. Cooper, 2 Yerg. (Tenn., 1831) 599, 611. The law of the land provision, Justice Nott thought, was intended "in some way or other, to operate as a check upon the exercise of arbitrary power." Dunn v. City Council of Charleston, Harper's Law Reports. 189, 199 (1824). Chief Justice Gibson in Norman v. Heist, 5 W. & S. (Pa., 1843) 171, 173 claimed that the design of the convention which framed the state constitution was to exclude arbitrary power from every branch of the government. The exercise of a governmental power which is arbitrary is void, according to Justice Campbell, dissenting in Sears v. Cottrell, 5 Mich. 251, 281 (1858).

5. Justice Johnson in Bank of Columbia v. Okely, 4 Wheat. 234, 244 (1819). This dictum of Justice Johnson was cited and approved by Justice Gray in Scott v. McNeal in denying to a state court the right to sell property for the payment of debts without notice to a party absent from the state for seven years. 154 U. S. 34, 45 (1893).

6. Justice Mason in White v. White, 5 Barb. 474, 484 (1849).

7. See, however, Chief Justice Hines in Barbour v. Louisville Board of Trade, 82 Ky. 645, 648 (1885).

8. "The principal, if not the sole, purpose of its [the Fourteenth Amendment] prohibitions is to prevent any arbitrary invasion by state authority of the rights of persons and property." Justice Field, dissenting in Butchers' Union v. Crescent City Co., 111 U. S. 746, 759 (1883).

9. Justice Bradley, concurring in Davidson v. New Orleans, 96 U. S. 97, 107 (1877).

10. Justice Field in ex parte Wall., 107 U. S. 265, 303 (1882). And again, he asserted, the Fourteenth Amendment undoubtedly intended that there should be "no arbitrary deprivation of life or liberty, or arbitrary spoliation of property," and that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights. Barbier v. Connolly, 113 U. S. 27, 31 (1885). Cf. also Stuart v. Palmer, 74 N. Y. 183, 190 (1878), in which a New York justice regarded the due process clause as a limitation upon the arbitrary exercise of legislative powers. "The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations." Justice Brown in Lawton v. Steele, 152 U. S. 133, 137 (1894).

11. Hurtado v. California, 110 U. S. 516, 532 (1884). Beginning with Davidson v. New Orleans, 96 U. S. 97 (1878), Mr. Willis asserts, Coke's doctrine of a fundamental law superior to all legislation was made a part of due process of law. Hugh Evander Willis, "Due Process of Law under the United States Constitution," Univ. of Pa. Law Rev., LXXIV (February, 1926), 331, 335. For applications of the new interpretation see Chicago, Milwaukee and St. Paul Ry. Co. v. Minnesota, 134 U. S. 418 (1890); Allgeyer v. Louisiana, 165 U. S. 578 (1897); and Lochner v. New York, 198 U. S. 45 (1905).

12. Justice Harlan in Chicago, Burlington and Quincy Ry. Co. v. Chicago, 166 U. S. 226, 234 (1896), and Chicago, Rock Island & Pac. Ry. Co. v. Arkansas, 219 U. S. 453, 465 (1910).

13. Cf. Holden v. James, 11 Mass. 396, 405 (1814) and supra, p. 111.

14. Opinions of Justices Field in Barbier v. Connolly, 113 U. S. 27, 32 (1885), and Matthews in Yick Wo v. Hopkins, 118 U. S. 356, 369, 370 (1886). Said Justice Matthews: "When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power." Chief Justice Fuller confirmed the rights of the states to deal with criminals within their borders provided no person or class of persons was denied equal and impartial justice and provided state procedure did not subject "the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice." Leeper v. Texas, 139 U. S. 462, 468 (1890).

15. The term "arbitrary" is vague enough in its connotations to give the widest latitude for a judicial censorship. It may mean acts not governed by any fixed rules, or which are capricious, unfair, absolute, despotic, tyrannical, or irresponsible. It is obvious that personal and partisan inclinations will have great weight in determining whether legislative enactments come within one of these indefinite categories.

16. Upholding a New York law providing for capital punishment by electrocution, Chief Justice Fuller said that the Fourteenth Amendment required that the action of the states be "exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. Undoubtedly the amendment forbids any arbitrary deprivation of life, liberty, or property, and secures equal protection to all under like circumstances in the enjoyment of their rights." In re Kemmler, 136 U. S. 436, 448 (1889). See also Justice Moody in Twining v. New Jersey, 211 U. S. 78, 100 (1908).

17. Classification "must always rest upon some difference which bears a reasonable and just relation to the act in respect to which classification is proposed, and can never be made arbitrarily and without any such basis... but arbitrary selection can never be justified by calling it classification." Justice Harlan in Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 560 (1902), citing the opinion of Justice Brewer in Gulf, Colorado and Santa Fé Railway v. Ellis, 165 U. S. 150, 155, 159 (1896). Cf., also, Justice Day in Southern Ry. Co. v. Greene, 216 U. S. 400, 417 (1909). For state cases declaring arbitrary police regulations void, cf. Mott, op cit., p. 338.

18. Truax v. Corrigan, 257 U. S. 312, 332 (1924). Mr. Reeder suggests that the practice of declaring legislative acts void because unreasonable, may be regarded as more nearly related to the old idea of natural justice than to the due process of law provision Op. cit., p. 200.

19. Dissenting opinion in Lochner v. New York, 198 U. S. 45, 76 (1904).

20. Cooley, Constitutional Limitations (8th ed., 1927), pp. 356, 357. If no other grounds can be discovered to prohibit legislative action, the people have reserved the power to themselves. Whether an act is or is not arbitrary depends upon the conditions prevailing at the time. Justice Pound in People v. La Fetra, 230 N. Y. 429, 444 ff.; 130 N. E. 601 (1921); Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922); and Emergency Rent Cases — Block v. Hirsch, 256 U. S. 135 (1921) and Levy Leasing Co. v. Siegel, 258 U. S. 242 (1922).

21. See Reeder, op. cit., pp. 191, 192, for cases in which the Supreme Court has suggested that action would violate the due process of law provision, if unreasonable or arbitrary, and in which the court has intimated that it will pass on the necessity or desirability of legislative or administrative action.

Referring to the claim that an order of the Interstate Commerce Commission based upon its findings of fact was conclusive, Justice Lamar said: "A finding without evidence is arbitrary and baseless.... Such authority, however beneficently exercised in one case could be injuriously exerted in another, is inconsistent with rational justice, and comes under the Constitution's condemnation of all arbitrary exercise of power." Int. Com. Comm. v. Louisville & Nashville R. R., 227 U. S. 88, 91 (1912).

"The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination." Chief Justice Tatt in Sioux City Bridge v. Dakota County, 260 U. S. 441, 445 (1922), or state procedure in assessments for local improvements must not be "palpably arbitrary or a plain abuse." Justice Holmes in Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55, 58 (1915).

Judgments obtained by fraud or without service are not erroneous and not voidable but "upon principles of natural justice, and under the due process clause of the Fourteenth Amendment are absolutely void." Justice Lamar in Simon v. Southern Ry. Co., 236 U. S. 115, 122 (1915). [Italics by the author.]

22. For an analysis of cases affirming the doctrine of fundamental rights and of the incorporation of this doctrine in the due process of law clause, see Francis W. Bird, "The Evolution of Due Process of Law in the Decisions of the United States Supreme Court," Columbia Law Review, XIII (January, 1913), 37.

23. Corfield v. Coryell, 4 Wash. C. C. 371, 380-382 (1823), Fed. Cas. No. 3230.

24. Terrett v. Taylor, 9 Cranch, 43, 51 (1815); see reference to "republican principles" by Justice Chase in Calder v. Bull, 3 Dallas, 388 (1798).

25. Wilkinson v. Leland, 2 Pet. 627, 657 (1829); for extract from Story's opinion cf. supra, p 94.

26. Occasional references may, of course, be found to what Daniel Webster, in arguing the Dartmouth College Case, called "the great principles of republican liberty and of the social compact," or to the "eternal principles of justice which no government has a right to disregard." Justice Green in Bank of State v. Cooper, 2 Yerg. 599, 603 (1831). "There is a fundamental principle of right and justice, inherent in the nature and spirit of the social compact... that rises above and restrains and sets bounds to the power of legislation," said Chief Justice Buchanan in Regents v. Williams, 9 G. & J. 365, 408 (1838). Cooley thought certain "fundamental rights" when inserted in a constitution operated as a limitation on the legislature without any express provisions. Constitutional Limitations (1st ed., 1868), and People v. Hurlbut, 24 Mich. 44, 97-98 (1871).

27. "There are, undoubtedly, fundamental principles of morality and justice which no legislature is at liberty to disregard." License Tax Cases, 5 Wall. 462, 469 (1866).

28. Loan Association v. Topeka, 20 Wall. 655, 663 (1874); see also Justice Harlan in Madisonville T. Co. v. St. Bernard M. Co., 196 U. S. 239, 251, 252 (1904); and Justice Brown in Holden v. Hardy, 169 U. S. 366, 389 (1898), wherein "certain immutable principles of justice" are declared to "inhere in the very idea of a free government"; and Benson v. Mayer, 10 Barb. 223, 245 (1850), in which reference was made to "the great principles of Eternal Justice, which lie at the foundation of all free governments." To Justice Swayne they are the "conservative principles which lie at the foundation of all free government," St. Louis v. The Ferry Co., 11 Wall. 423, 429 (1870); and to the Wisconsin Supreme Court they are "a part of the inherent rights which governments under our conception are established to conserve," Nunnemacher v. State, 129 Wis. 190, 197-202 (1907). See also Justice Knowlton in Commonwealth v. Perry, 155 Mass. 117, 121 (1891), and Justice Deemer in State v. Barker, 116 Ia. 96, 105 (1902).

29. Cummings v. Missouri, 4 Wall. 277, 321 (1886). The Fourteenth Amendment, according to Justice Field, "was intended to give practical effect to the Declaration of 1776 of inalienable rights which are the gift of the Creator, which the law does not confer, but only recognizes." Slaughter-House Cases, 16 Wall. 36, 105 (1872). Agreeing with this opinion, Justice Harlan said that since the adoption of the Fourteenth Amendment, "the privileges and immunities specified in the first ten amendments as belonging to the people of the United States are equally protected by the constitution." Dissent in Maxwell v. Dow, 176 U. S. 581, 616 (1899). And again he said, "I go further and hold that the privileges of free speech and of free press, belonging to every citizen of the United States, constitute essential parts of every man's liberty, and are protected against violation by that clause of the Fourteenth Amendment forbidding any state to deprive any person of his liberty, without due process of law." Patterson v. Colorado, 205 U. S. 454, 456 (1906). Compare this view with the majority opinion of Justice Sanford in Gitlow v. New York, 268 U. S. 652 (1925); cf. infra, p. 193. Speaking through one of the champions of individualism, the Supreme Court held on another occasion that the Fourteenth Amendment "simply furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society." Chief Justice Waite in United States v. Cruikshank, 92 U. S. 542, 554 (1875); see reference to "immutable principles of liberty and justice" in Hurtado v. California, 110 U. S. 516, 535 (1884), also Justice Day in Watson v. Maryland, 218 U. S. 173, 177 (1910). For comment as to the way in which the pursuit of the immutable principles of justice in connection with the concept of due process of law leads into the "fields of speculation cultivated by writers on the law of nature and the nebulous natural rights of man," see L. P. McGehee, Due Process of Law, pp. 38, 57 ff.

30. For a summary of citations that the fundamental rights of the citizen are inviolable, cf. Robert P. Reeder, "Constitutional and Extra-Constitutional Restraints," Univ. of Pa. Law Rev., LXI (May, 1913), 441, 452. The emerging concept of liberty of contract was soon to be grouped with the undefined fundamental rights. "No proposition is now more firmly settled," thought Justice Rapallo, "than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit." People v. Marx, 99 N. Y. 377, 386 (1885). "There are certain fundamental rights of every citizen which are recognized in the organic law of all our tree American states. A statute which violates any of these rights is unconstitutional and void even though the enactment of it is not expressly forbidden.... The right to acquire, possess, and protect property includes the right to make reasonable contracts, which shall be under the protection of law." Commonwealth v. Perry, 155 Mass. 117, 125 (1891). The federal courts can only interfere when fundamental rights guaranteed by the federal Constitution are violated, Justice McKenna in Ballard v. Hunter, 204 U. S. 241, 262 (1907); Justice Day in Rogers v. Peck, 199 U. S. 423, 434 (1905), and in Franklin v. South Carolina, 218 U. S. 161, 164, 165 (1910); "the limit of the full control which the state has in the proceedings of its courts both in civil and criminal cases, is subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the federal Constitution." Justice Peckham in West v. Louisiana, 104 U. S. 258, 263 (1904); see also Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 107 (1009). Legislative acts, according to Chief Justice Taft, are not due process which are not in accord with the fundamental principle of equality of application of the law. Truax v. Corrigan, 257 U. S. 312, 332 (1921). Judge Dillon thought the value of the due process clause of the Fourteenth Amendment consisted primarily "in the great fundamental principles of right and justice, which it embodies and makes part of the organic law of the nation." The Laws and Jurisprudence of England and America (1894), pp. 208-212. "The great fundamental rights," said Judge Dillon," guaranteed by [American] constitutions are life, liberty, contracts and property." Ibid., p 203. One can readily discover that judicial construction had an extraordinarily large share in giving this sort of a content to the meaning of the Fourteenth Amendment.

31. Monongahela B. Co. v. United States, 216 U. S. 177, 195 (1910).

32. Twining v. New Jersey, 211 U. S. 78, 106 (1908). "We cannot interfere [with a judgment of a state court] unless the judgment amounts to mere arbitrary or capricious exercise of power, or is in clear conflict with those fundamental principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights." Justice McReynolds in American Ry. Express Co. v. Kentucky, 273 U. S. 269, 273 (1927).

33. For an extensive list of citations that the Supreme Court has no right to inquire into the wisdom or justice of the acts of the federal or state governments, see Robert P. Reeder, "Constitutional and Extra-Constitutional Restraints," Univ. of Pa. Law Rev., LXI (May, 1913), 441, 446, 456. Regarding the statements of justices relating to inalienable rights, fundamental rights, and rights which grow out of the essential nature of free governments, Mr. Reeder thinks "it is sufficient to say that the premises upon which they are based have been abandoned by thoughtful men for over a century, [and] that those statements are against the vast weight of direct authority." For another summary of judicial opinions that courts may not pass on the justice or expediency of legislative acts, consult Cooley, Constitutional Limitations (8th ed.), I, 341 ff.

34. Cooley, Constitutional Limitations (8th ed.), chap. 21; also Freund, The Police Power: Public Policy and Constitutional Rights (Chicago, 1904), especially chap. 1.

35. Dillon, Municipal Corporations (5th ed.), sec. 589.

36. Justice Earle, in re Jacobs, 98 N. Y. 98, no (1885). Due process of law, as a limitation on the police power of the federal government, was suggested by Chief Justice Taney in Dred Scott v. Stanford, 19 How. 393, 450 (1856) and referred to in several dissenting opinions but was consistently repudiated by the federal justices. Justice Field expressed the prevailing sentiment when he declared that the Fourteenth Amendment was not "designed to interfere with the power of the state, sometimes termed its police power." Barbier v. Connolly, 113 U. S. 27, 31 (1885). For reference to additional cases, see Mott, op. cit., pp. 334, 335.

37. Justice Peckham in People v. Gibson, 109 N. Y. 389, 400 ff. (1888). Cf. as to the definition of the term "liberty," citing chiefly Justice Field's opinions in the Supreme Court and Justice Andrews' opinion in Bertholf v. O'Reilly, 74 N. Y. 509 (1878); in re Jacobs, supra; and People v. Marx, 99 N. Y. 377 (1885).

38. Wynehamer v. State of New York, 13 N. Y. 378, 392 ff. (1856).

39. Chief Justice Waite in Stone v. Farmers' Loan and Trust Co., 116 U. S. 307, 331 (1886) and Justice Brewer in Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362, 397 (1893).

40. Lochner v. New York, 198 U. S. 45, 56 (1898).

41. Referring to the decision of the Supreme Court in Yick Wo v. Hopkins, 118 U. S. 356 (1885) in which a municipal ordinance was held void because its administration was regarded as arbitrary and discriminatory, Justice Brown said: "While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power." Plessy v. Ferguson, 163 U. S. 537, 550 (1895). See also Justice Peckham in Lake Shore and Michigan Southern Ry. Co. v. Smith, 173 U. S. 684, 689 (1899), and in W. M. & P. R. R. Co. v. Jacobsen, 179 U. S. 287, 297 (1900). The police power is subject to judicial review and property rights cannot be wrongfully destroyed by arbitrary enactments. Justice Day in Dobbins v. Los Angeles, 195 U. S. 223, 236 (1904). Cf. also Justice Harlan in Jacobsen v. Massachusetts, 197 U. S. 11, 31 (1904); cases cited to sustain this view are Mugler v. Kansas, 123 U. S. 623, 661 (1887); Minnesota v. Barber, 136 U. S. 313, 320 (1889); Atkin v. Kansas, 191 U. S. 207, 223 (1903). "The principle involved in these decisions," said Justice Hughes, "is that where the legislative action is arbitrary and has no reasonable relation to a purpose which it is competent for government to effect, the legislature transcends the limits of its power." Chicago, Burlington & Quincy Ry. Co. v. McGuire, 219 U. S. 549, 569 (1910).

The general result is that specific provisions of constitutions are likely to be enforced literally but indefinite provisions such as due process of law and the equal protection of the laws will be applied so as to prohibit governmental acts which are considered as against natural justice.

No proceeding may be declared invalid "unless in conflict with some special inhibitions of the Constitution, or against natural justice." Justice Brewer in Arndt v. Griggs, 134 U. S. 316, 321 (1890). "Under the Fourteenth Amendment, the legislature is bound to provide a method for the assessment and collection of taxes that shall not be inconsistent with natural justice." Justice Brown in Turpin v. Lemon, 187 U. S. 51, 60 (1902).

42. "A police measure must fairly tend to accomplish the purpose of its enactment, and must not go beyond the reasonable demands of the occasion." Cooley, Constitutional Limitations (8th ed.), II, 1231.

43. Thomas Reed Powell, "The Judiciality of Minimum Wage Legislation," Harvard Law Review, XXXVII (March, 1924), 545.

44. Ray A. Brown, "Due Process of Law, Police Power, and the Supreme Court," Harv. Law Rev., XL (May, 1927), 943, 966.

45. Brown, op. cit., p. 956. President Goodnow quotes Professor Seager's conclusion that "the question of the constitutionality of a restrictive labor law is inseparably connected with the question of the wisdom of such a law." And then he adds:

"What the courts actually do in cases in which they declare a law of this sort unconstitutional, is to substitute their ideas of wisdom for those of the legislature, although they continually say that this is not the case." Social Reform and the Constitution (New York, 1911), p. 247, and Henry R. Seager, "The Attitude of American Courts toward Restrictive Labor Legislation," Political Science Quarterly, XIX (December 1904), 589.

46. James L. Nesbitt, "Due Process of Law and Opinion," Col. Law Rev., XXVI (January, 1926), 22, 27. The categorical view of due process of law, Mr. Nesbitt thinks, is best illustrated in the majority opinion in the Minimum Wage Case, Adkins v. Children's Hospital, 261 U. S. 525 (1923). When the Supreme Court, under the due process clause, performs "the function of umpiring the contest between competing social forces" Mr. Nesbitt finds that three attitudes are in evidence: first, an abstract standard to determine the line between reasonable regulation and arbitrary restraint, e. g., Justice Sutherland's opinion in the Minimum Wage Case; second, a personal standard of the court, such as that of Chief Justice Taft and Justice Sanford in the same case; and third, a standard of what others have declared reasonable; see Justice Holmes in dissent, Lochner v. New York, 198 U. S. 45, 76 (1898).

47. Legislatures may use only such means as are reasonably designed to deal with existing conditions, Herlihy v. Donahue, 52 Mont. 601, 610, 161 Pac. 164 (1916); also Mott, op. cit., p. 539. On the way in which the "silence of the original Constitution utters restraints," see T. R. Powell, "Due Process Tests of State Taxation," Univ. of Pa. Law Rev., LXXIV (March, 1926), 423, 573.

48. Mott, op. cit., p. 539.

49. Charles Wallace Collins, The Fourteenth Amendment and the States (Boston, 1912), p. 183. See also summary of Judge Hough in Harv. Law Rev., XXXII (January, 1919), 229, where it is noted that from 1868 to the 1910 term of the Supreme Court there were more than four hundred cases interpreting due process of law alone and less than one hundred before 1883. From 1890 to 1900 there were one hundred and ninety-seven appeals under the recent cases relating to corporations, with public service companies predominating.

50. See Collins, op. cit., p. 183.

51. The Supreme Court, says Professor Commons, has legislated by definition: "It changed the meaning of due process of law and thus amended the federal and every state constitution. It changed the meaning of property and liberty as used in the Fourteenth Amendment and thus took over from the states the final determination of what was due process of law in the regulation of property and business." Legal Foundations of Capitalism, p. 355. The change in the court's interpretation of the term "due process of law," Mr. Willis thinks, was brought about "through the efforts of corporations; through a change in the personnel of the bench, and through the personal activity of Justice Field, who always championed this doctrine and who strangely, in writing an opinion for the Supreme Court, cited his own opinion while a circuit judge as the opinion of the Supreme Court." Minneapolis Ry. Co. v. Beckwith, 129 U. S. 26 (1898); "Due Process of Law under the United States Constitution," Univ. of Pa. Law Rev., LXXIV, 337; and County of San Mateo v. Southern Pacific Ry. Co., 13 Fed. 722 (1882).

52. Willis, Univ. of Pa. Law Rev., LXXIV, 338. Mr. Willis claims that by attacking all forms of state legislation before the Supreme Court corporations are attempting to undermine our dual form of government. Ibid., p. 342. The Fourteenth Amendment, in the judgment of Mr. Coffins, was to be a charter of liberty for human rights, but it operates today to protect primarily the rights of property. It has become the Magna Carta of organized capital. It "gives to the federal government undefined and illimitable control over every phase of state activity. It throws into the hands of the Supreme Court of the United States more power over the states than does all the rest of the Constitution combined." Collins, op. cit., pp. 146 ff.

53. "Due Process of Law — Today," Harv. Law Rev., XXXII, 218, 233. For similar judgments regarding the decline of significance of this phrase, consult Charles Warren, "The Progressiveness of the United States Supreme Court," Col. Law Rev., XIII (April, 1913), 294, and Robert E. Cushman, "The Social and Economic Interpretation of the Fourteenth Amendment," Michigan Law Review, XX (May, 1922), 737, 757 ff.

54. Ray A. Brown, op. cit., pp. 943 ff.

55. Ibid., pp. 944, 945.

56. Adkins v. Children's Hospital, 261 U. S. 525 (1923). The committees of both Houses of Congress unanimously recommended the legislation, House Rep. No. 571 and Senate Rep. No. 562, 65th Congress, 2d Session. The House of Representatives passed the bill without opposition, and only twelve votes were recorded against it in the Senate, vol. LVI, Cong. Rec., Pt. 9, pp. 8875 ff.; Pt. 10, pp. 10278 ff.; Pt. 12, pp. 604 ff. In the consideration of this case some extracts are used from an editorial note by the writer in Texas Law Review, II (December, 1923), 99.

57. 198 U. S. 45 (1904), It is a well-known fact that in the attempts of the federal courts to define due process of law there has been much wavering and uncertainty, and dissenting opinions have been prevalent. The court seldom reverses itself in the interpretation of due process — it explains, distinguishes, or modifies. The effect is often a reversal in whole or in part. The uncertainties and misapprehensions are apparent in the general impression of the bench and bar that the majority opinion in the Lochner Case had been overruled, and that the court had adopted the minority views of Justice Holmes and the reiteration of the majority views in that case by Justice Sutherland, rendering the opinion in Adkins v. Children's Hospital. See Fletcher Dobyns, "Justice Holmes and the Fourteenth Amendment," Illinois Law Review, XIII (June, 1918), 71, 92, and Cardozo, The Nature of the Judicial Process (New Haven, 1922), p. 79.

58. 261 U. S. 554, 555. Referring to Justice Sutherland's views on the freedom of contract in the Minimum Wage Case, Powell remarks, "It represents his personal views of desirable governmental policy. Those views are shared by many others, but they are not written into the Constitution of the United States except as judges from time to time have inscribed them there." "The Judiciality of Minimum Wage Legislation," Harv. Law Rev., XXXVII (March, 1924), 545, 555, 556.

59. 261 U. S. 559.

60. Ibid., 562.

61. See Holden v. Hardy, 169 U. S. 336 (1897), limiting employment of workmen in mines to eight hours per day; Patterson v. The Eudora, 190 U. S. 169 (1903), prohibiting masters from paying seamen in advance; Muller v. Oregon, 208 U. S. 412 (1908), limiting hours of labor of women employed in laundries to ten hours per day; Riley v. Massachusetts, 232 U. S. 671 (1914), limiting employment of women in manufacturing establishments to ten hours per day, or not more than fifty-six hours per week; Erie Railway Co. v. Williams, 233 U. S. 685 (1914), prohibiting employers from paying employees less often than semi-monthly; Bosley v. McLaughlin, 236 U. S. 385 (1915), limiting employment of women for more than eight hours per day, or more than forty-eight hours per week in certain designated employments; Bunting v. Oregon, 243 U. S. 426 (1917), forbidding employment of anyone in mill or factory for more than ten hours per day.

62. 261 U. S. 567, 568.

63. On the effect of the personal influences in the decisions of the Supreme Court on labor cases, see Powell, "The Constitutional Issue in Minimum Wage Legislation," Minnesota Law Review, vol. II (December, 1917). The reasoning of the court in the Adkins Case led to a judgment against the validity of the Arizona Minimum Wage Act and to a condemnation of other meliorative acts. See ex parte Smith 223 Pac. 971 (1924).

64. Collected Legal Papers, p. 184.

65. "Though neither the doctrine of individualism nor of laissez faire is contained in the language of the constitution, they permeate many judicial opinions interpreting the constitution." Powell, "The Constitutional Issue in Minimum Wage Legislation," Minn. Law Rev., II, 11. For a different interpretation see Brown, ibid., I (June, 1917), 471.

66. Burns Baking Company v. Bryan, 264 U. S. 505, 513 (1923).

67. Ibid., 519, 520.

68. 264 U. S. 533, 534.

69. "One who assails the classification [made by a state legislature] must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary." Justice Sanford in Whitney v. California, 274 U. S. 357 (1927) citing Lindsley v. Natural Carbonic Gas Co., 220 U. S. 62, 78, 79 (1910).

70. Mott, op. cit., pp. 562 ff.

71. Tyson and Bro. United Theater Ticket Offices v. Banton; 273 U. S. 418 (1927). Referring to the failure of the justices to give due weight to the evidence before the legislature in the case of Lochner v. New York, 198 U. S. 45 (1905), Sir Frederick Pollock believes that "the legal weakness of this reasoning, if we may say so, is that no credit seems to be given to the state legislature for knowing its own business and it is treated like an inferior court which has to find affirmative proof of its competence. How can the Supreme Court at Washington have conclusive judicial knowledge of the conditions affecting bakeries in New York? If it has not such knowledge as matter of fact, can it be matter of law that no conditions can be reasonably supposed to exist which would make such an enactment, not necessarily wise or expedient (for no one attributes to any court, state or federal, a general jurisdiction to review legislation on the merits) but constitutional?" "The New York Labour Law and the Fourteenth Amendment," Law Quarterly Review, XXI (July, 1905), 212.

72. Tyson and Bro. United Theater Ticket Offices 11. Banton, 273 U. S. 418 (1927). As authority for this view, Wolff Co. v. Industrial Court, 262 U. S. 522, 536 (1922) was cited.

73. 273 U. S., 433, 434.

74. Fairmont Creamery Co. v. Minnesota, 274 U. S. 1 (1927).

75. Barron v. Baltimore, 7 Pet 243 (1833). See comment of Chief Justice Waite in 1876 that "it is now too late to question the correctness of this construction," and citation of cases, Harv. Law Rev., XXXIX (February, 1926), 436.

76. Prudential Insurance Co. v. Cheek, 259 U. S. 530, 538, 543 (1922); Patterson v. Colorado, 205 U. S. 454 (1907).

For the claim that it was the intention of the framers of the Fourteenth Amendment that the rights and privileges of the first eight amendments should be the "secure possession of every citizen" of the United States, beyond the power of any state to abridge," see Guthrie, Lectures on the Fourteenth Article of Amendment to the Constitution of the United States, p. 61.

77. New York v. Gitlow, 268 U. S. 652, 666 (1925). Justice Sanford said that the court did not regard the statement quoted above from the Prudential Insurance Cases as "determinative," but he does not refer to the other cases in which similar opinions were rendered.

78. See Minor v. Happersett, 21 Wall. 162 (1874), 1; United States v. Cruikshank, 92 U. S. 542 (1875); in re Kemmler, 136 U. S. 436 (1890); Twining v. New Jersey, 211 U. S. 78 (1908).

79. Whitney v. California, 274 U. S. 357 (1927).

80. United States v. Trenton Potteries Co., 273 U. S. 392 (1927). For applications of the concept of reasonableness in passing on the validity of combinations in restraint of trade, consult U. S. v. Trans-Missouri Freight Association, 166 U. S. 290 (1896); Northern Securities Co. v. United States, 193 U. S. 197 (1903); Standard Oil Co. v. United States, 221 U. S. 1 (1910); United States v. American Tobacco Co., 211 U. S. 106 (1910).

"It is submitted that up to the present time very little can be learned as to the meaning of due process of law from the decisions of the Supreme Court as to what in its judgment is reasonable and what unreasonable. They neither give us a rule of law nor a definition." Willis, Univ. of Pa. Law Rev., LXXIV, 338, 339. See comment how the Supreme Court, in finding a new meaning for due process of law, made some new constitutional law. P. 339.

81. For comments on one phase of this revolution, see F. Dumont Smith, "Decisive Battles of Constitutional Law," American Bar Association Journal, X, 505, and The Constitution: Its Story and Battles, chap. 15.

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