BEGINNING with the dominance of the Federalist Party over the political affairs of the country after the inauguration of the federal Constitution in 1789, a tradition was established which insisted that the continuance of federalism and its control over political affairs was essential to the political peace and order of the country, and that anti-federalism tended in the direction of chaos and ruin. This tradition was fostered in large part through the business and commercial interests over which Hamilton and his successors held sway. For the greater part of the nineteenth century the successors of the Federalist Party preserved the doctrine that peace and order depended upon their control and insisted that the turning over of the government to their opponents would bring ruin and disruption to the country.

To prevent an excess of democracy and the disorders supposed to accompany the people's management of public affairs there was an insistence that one department of government must not be directly influenced by temporary public opinion, and it was determined to make the judiciary such a stabilizing power.[1]

Under the leadership of such men as Chief Justice Marshall, Justice Joseph Story, and Daniel Webster, it came to be an accepted view that nationalist, conservative, and commercialist views of American law and politics were looked upon as sound statesmanship and opposite views were identified with ruin and disunion. The Republican Party, which became the successor of the old Federalist and Whig Parties, accepted and fostered the conservative and capitalist traditions championed by the old Federalist Party. After the program was inaugurated of applying the resources of the government to economic development through a liberal land policy, which gave an impetus to the settlement of the frontier, through subsidies and land grants to railways, which gave settlers access to world markets, and through protective duties, which were designed to build up home industries, the party adopted the principles and practices of the coalition between the commercial and capitalist interests which were characteristic of the policies of Alexander Hamilton. Hence the party leaders again asserted the former contention that their control of the country alone could preserve peace and order.

As the Democratic Party was disrupted through the realignments resulting from the Civil War it was easy to maintain the position that the turning over of the government to this party would, as was charged against the anti-federalists many decades earlier, lead the people in the direction of political disorder and ruin. The old doctrine is continued in the oft-repeated claim that the decisions of John Marshall "remain the charter of courts of justice in the modern republican world: the world of law and constitutional government. They speak order, power, progress and peace. Had a contrary conception of civil institutions prevailed, could anything else have followed than weakness and strife, decay and chaos?"[2] It has become one of the axioms of American political philosophy that "to maintain the principle that there is a limit in republican government to the power of the majority to make laws is one of the most valuable functions the courts have to perform."[3]

1. Conservative Doctrines and Judicial Review of Legislation. The battle cry of those who believe in conservative doctrines is that every effort must be made to place limits upon the despotism of the majority.[4] No device is better designed to accomplish this end than the practice of the judicial review of legislative acts with a written constitution as an express guide and with a broad rule of reason as a supplementary weapon of defence. And a principle of government which was identified with one of the great parties of American political development has been espoused by the leaders of both major parties.

The conservative reaction, which, among other things, secured the judicial application of the doctrine of inherent limits on legislative powers and left its impress upon the Fourteenth Amendment to such an extent as to bring a change in the federal Constitution greater than all amendments and interpretations made since 1789, was not the result of any one group, division, or class of the American people. Like the medley of interests which combined to make and to secure the adoption of the Constitution, a rather unusual combination of individuals, groups, and interests joined forces to bring about a radical change in the adjustment of relations between the nation and the states. A peculiar set of circumstances, economic, political, social, and philosophic, gave color to dominant modes of thinking which affected all, including the justices in state and federal courts. Certain ideas were fostered and became the stock in trade of the politicians and of the legal fraternity. It is not surprising, therefore, to find the state and federal justices about the same time giving form and utterance to the peculiar concept of "liberty of contract" and to various doctrines of economic individualism. These ideas were prevalent and the semi-political views of the justices, meeting a responsive chord in public sentiment, as a rule, were received with popular approval. The change in the interpretation of the Fourteenth Amendment, whereby a content was declared involved therein which the majority of the Supreme Court had repeatedly held was not intended in its adoption, was the result of the reasoning of many justices, though a few of this number bore the brunt of the controversy which turned the tide toward a broad judicial review of legislation.

Three justices seem to have determined, in large part, the trend of the opinions of the Supreme Court, in the cases changing the meaning and content of the term "due process of law" and in ushering in a period characterized as a "carnival of unconstitutionality, which perhaps was at its height between 1890 and 1910."[5] They were Justices Field, Harlan, and Brewer. Certain peculiarities and characteristics of these justices made a distinct impression upon this unique feature of modern American constitutional law. Foremost of this group is Justice Field.

He had, we are told, a quality of intellect which led him on all occasions to seek for fundamental and universal principles.[6] His creative power, exhibited in a marked degree in his legislative career, was also characteristic of his decisions on the bench.[7] His experience in a frontier community, as well as his training in early life, developed a philosophy of individualism in which he was disposed to encourage in every way individual self-exertion, and to object to measures attempting to regulate economic life.[8] It was this philosophy that led Justice Field to object strongly to any exercise of governmental power which to him seemed arbitrary,[9] and that impelled him to insist that the Fourteenth Amendment was designed to prevent arbitrary governmental acts.[10] More consistently than any other justice, he opposed the inclination of the justices of the Supreme Court not to give the broadest meaning and application to the due process and equal protection phrases of the Fourteenth Amendment. He was the spokesman of the court in some of the leading cases in which the interpretation of the amendment was changed, and continued on the bench until the reversal of the Slaughter-House Case and similar cases was accomplished, and until the amendment was interpreted as at least a negative protection to any interference with civil or political rights.[11]

Justice Harlan, like Justice Field, was influenced considerably by the philosophy and experience of the frontier, and he, too, was individualistic in much of his thinking. He was regarded as a "militant justice," and was strongly nationalistic in his political theories.[12] Inclined to emphasize the theory of natural rights he was readily disposed to adopt the doctrine of fundamental rights which the justices of the Supreme Court were slowly developing in connection with the interpretation of the due process clause. He had supposed, he said, that the intention of the people of the United States was to prevent the deprivation of any legal right in violation of the fundamental principles inhering in due process of law,[13] objected to any interference with private property rights,[14] and joined, as a rule, Justice Field in protesting against the regulative measures of the state legislatures. He agreed with Justice Field that Congress and the courts ought to be authorized to exercise a national control over civil rights.[15]

No greater exponent of the individualistic philosophy of this period was appointed to the Supreme Court than Justice Brewer.[16] In decisions while on the circuit court, and in his opinions and influence on the Supreme Bench, he availed himself of every opportunity to defend the extreme individualistic doctrines which prevailed at this time. His point of view was expressed quite freely in an address delivered before the graduating class of the Yale Law School in June, 1891, on "Protection to Private Property from Public Attack." Referring to the Declaration of Independence and the bills of rights of state constitutions, Justice Brewer said, "they equally affirm that sacredness of life, of liberty, and of property, are rights, inalienable rights, anteceding human government, and its only sure foundation, given not by man to man, but granted by the Almighty to everyone, something which he has by virtue of his manhood, which he may not surrender and of which he may not be deprived." To Justice Brewer, the Declaration of Independence was the cornerstone of the federal Constitution.[17]

Justice Brewer also asserted in his address that "the demands of absolute and eternal justice prevent that any private property legally acquired or legally held should be subordinated or destroyed in the interests of public health, morals, or welfare without compensation." The destruction of property rights, he thought, might be as effectively accomplished by the regulation of charges, or by the regulation of the use to which property may be put as by the direct destruction of the property itself. Referring to the controversy before the Supreme Court, which resulted in the reversal of the case of Munn v. Illinois, he approved Justice Blatchford's opinion for reversal with the comment that it "will ever remain the strong and unconquerable fortress in a long struggle between individual rights and public greed. I rejoice to have been permitted to put one stone into that fortress." He approved the doctrine of Chancellor Kent and of Justice Cooley that legislatures may not disturb vested rights, whether constitutional provisions prohibit such acts or not, and regretted that the Fourteenth Amendment had not been interpreted more favorably in the direction of protecting property rights. The frontier individualistic philosophy of Justices Field and Harlan had an able defender in Justice Brewer.

Appointed to the court after the change in the interpretation of the Fourteenth Amendment was under way, Justice Peckham was well suited to become one of the leading exponents of the conservative and individualistic thinking of Justices Field, Harlan, and Brewer. As a member of the Court of Appeals of New York, Justice Peckham not only approved the doctrine of Justice Field that the due process clause comprehended the inalienable rights referred to in the Declaration of Independence but he also indicated his inclination to join the ranks of the laissez faire school and to look with disapproval on the increasing tendency to regulate economic conditions. When placing the stamp of disapproval on a state law prohibiting the giving of a gift or reward with the sale of an article of food, Justice Peckham said:

It is evidently of that kind which has been so frequent of late, a kind which is meant to protect some class in the community against the fair, free, and full competition of some other class, the members of the former class thinking it impossible to hold their own against such competition, and therefore flying to the legislature to secure some enactment which shall operate favorably to them or unfavorably to their competitors in the commercial, agricultural, manufacturing or producing field.[18]

The natural inclination here expressed to hold the legislative power within "reasonable" limits qualified Justice Peckham to become the spokesman for the majority in Lochner v. New York and to assert that

it must, of course, be conceded that there is a limit to the valid exercise of the police power of the state. In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power of the state or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty?[19]

And on this ground it was held that a particular limitation of the hours of labor did not come within the police power.[20]

Since the controversy which resulted in changing the meaning of the due process clause was an issue primarily between the liberal or radical groups and those imbued with the principles and philosophies of individualism and of conservatism, the ordinary partisan affiliations of the justices did not have a controlling influence in bringing about the change. The majority of the justices who gave a narrow interpretation to the amendment in the decade from 1870 to 1880 were Democrats, a number of whom, as supporters of the Union, had joined the Republican Party. It was Justice Miller, however, a Republican, and an intense partisan who usually supported federalist doctrines, who rendered the opinion of the majority in the Slaughter-House Case; and it was Justice Field, a Democrat, who gave the minority opinion and pleaded for a broad interpretation of the amendment. Justice Bradley, a Republican, protested strongly against judicial review of the legislative power of rate-making and of public utility regulation. And the effective shift favorable to judicial review of the regulation of public utilities in the Minnesota Rate Case of 1889 was accomplished with three Republicans and three Democrats forming the majority and two Republicans and one Democrat the minority. Though the majority of the justices from 1870 to 1900 were Republicans, Democrats joined with Republicans in many decisions extending the general terms of written constitutions and in construing implied limits on legislatures. The truth of the matter is that, except for some of the differences between the parties left over from Civil War times and the tariff controversy, leading Democrats and Republicans looked at political matters from similar viewpoints. The parties seldom took sides on the vital issues of the day, and, as a rule, their leaders joined in helping to bring about a covert but effective revolution in federal and state constitutional interpretation.

The federalism of Marshall, Kent, Story, Cooley, and Dillon suggested ideas and formulated principles for a political conservatism which American constitutions were presumed to foster. It remained for the justices of the Supreme Court, aided by a group of assertive state justices, to turn these ideas into the channels of a new conservatism and to complete a structure of constitutional limitations and inhibitions the mere outlines of which had been previously sketched. The vested rights doctrine and the implied limitations originally considered as necessary for the protection of such rights took on a new form and were rounded out and extended by giving new meaning and content to the contract clause, to the just compensation principle for eminent domain proceedings, to the public purpose requirement for taxation, and to due process of law rendered applicable to all forms of legislative and administrative action, and particularly in so far as property rights might be affected.

In New York the total number of acts or parts thereof invalidated from 1783 to 1905 was three hundred and sixty-three. From 1860 to 1905 the number was two hundred and ninety-seven and more than one third of this number was declared void in the decade from 1891 to 1900.[21] Massachusetts courts used their powers sparingly to review and invalidate acts, only fifty-three acts or parts thereof being set aside to 1915. Ten of these were held void prior to 1860 and fifteen in the decade 1891 to 1900.[22]

But more important than the marked increase in the statutes invalidated in the latter part of the nineteenth century is the basic reason for such a change. Professor Corwin attributes the extension of judicial review in New York to the increase in the legislative product, the greater detail of constitutional provisions, and the development of constitutional doctrine, but he concludes that "the heart and soul of constitutional limitations in New York, thanks especially to Chancellor Kent, has been the doctrine of vested rights" and that the New York courts did constructive work in utilizing the "due process of law" clause as "a safe vehicle for the doctrine of vested rights."[23] Nearly one half of the statutes invalidated in Massachusetts was held in violation of due process of law or other provisions of the constitution which were construed as favorable to the protection of vested rights.[24] Evidently the justices had strayed a long way from the landmarks established in early precedents supporting the power of judicial review of legislative enactments.[25]

The obvious results of all the implied limitations and correlative ones, which have amplified and extended the scope of judicial review of legislation, and the extraordinary expansion of due process of law into a general limitation applicable to the entire realm of legislation and administration led to a construction by judicial interpretation of a broad rule of reason as a standard to test the fairness and reasonableness of legislative enactments, and incidentally to consider the wisdom or expediency of many governmental acts. The justices, however, continued to render lip service to the adage that courts had nothing to do with the wisdom or policy of legislation, their sole duty being to apply the express language of written constitutions. But express constitutional limitations with such vague terms as "due process of law" gave justices a roving commission to disapprove such measures as seemed to them to change too abruptly some regulation affecting the existing social or political order, or to presage too radical tendencies, and to seek refuge for such disapproval behind the indefinite language of express constitutional terms.[26]

It is not so much, then, the original language or intent of written constitutions that is responsible for the unique character of the practice of judicial review of legislative acts in the United States, as compared with a similar practice in foreign countries. It is the judge-made constitutional doctrines supported by the conservative groups of the country and fostered by the extreme individualism of leaders of industry and finance who, while busily engaged in securing governmental favors, were solicitous to make sure that popular assemblies might not be permitted to regulate too freely their property or contract rights.

It is coming to be better understood today than formerly that methods of thinking fostered by the common law, supported by the capitalists and industrial leaders of the country, and applied by conservative-minded judges, rather than constitutional provisions have given the peculiar trend to judicial review of legislation in the United States. Though foreign critics of the American system of government have frequently pointed out this fact, none has recognized it more clearly or dealt with it so convincingly as Professor Edouard Lambert, of the University of Lyons. In a recent volume dealing with certain phases of the problem of judicial review of legislation, he contrasts the early period of the exercise of this power by American courts — when the object was to control the competency of the legislature to deal with certain subjects, and not the way in which the legislature had dealt with the subjects — and the modern practice of judicial review through which due process has been interpreted to form a new Magna Carta "built piece by piece by the judges to protect the free play of individual energies against the arbitrary manifestations of popular sovereignty."[27]

In the twentieth century, Professor Lambert observes, the American judiciary is in possession of a power which permits it to exercise an energetic tutelage over the legislature, and to check the progress of legislation. This tutelage, he finds, is exercised in passing on the reasonableness of legislative measures, a well-known rule of reason now applied extensively by federal and state courts; and second, the criterion of expediency by which the courts pass on the economic value or political desirability of legislative measures. In the application of these principles, Professor Lambert thinks that American courts applying the conservative principles of the common law hold legislative activities within well-defined bounds. This practice of the courts, he believes, has had the result to erect a political judiciary against a political legislature, and often in conflict with it on the most irritating questions of a changing political and economic order. It is not surprising to find, then, that it operates to the detriment of the popularity and confidence ordinarily belonging to courts of justice.[28] The justices having taken sides on some of the fiercely contested political issues could expect nothing less than that their decisions would involve the courts in the maelstrom of party politics.

What is arbitrary and what is beneficent must be decided by common sense applied to a concrete set of facts.[29] But what criteria except their own consciences, have judges to guide them, as to what acts are unreasonable, unfair, discriminatory, outrageous, capricious, and shocking to the moral sense of mankind?" Is it surprising that the judgments of the individual justices differ widely as to the application of such vague and indefinite terms, that dissenting opinions are prevalent, that the courts frequently shift their positions, and that a feeling of uncertainty prevails as to the application of the rule of reason or the higher law philosophy supposed to be comprehended in the Fourteenth Amendment?

When legislation carefully formulated to deal with the complications and adjustments of the social order and to remedy some of the insistent evils of present industrial conditions is declared of no effect by a divided court, against the earnest and caustic protests of the minority justices, in the application of subjective criteria which constitute no standards at all, it is not strange that confidence in the judiciary is weakened, and that the leaders who are seeking to regulate more effectively the economic conditions which are deemed detrimental to human welfare are disposed to protest against the unwarranted powers assumed by the judges. "Here is the whole story behind the failure of all formulae connected with 'due process' and all the meaningless and circular statements as to what acts are and what are not 'due process.' In determining whether an act has a substantial and rational or reasonable relation to the enumerated matters, the court has in mind the background of 'fundamental principles' which are beyond the reach of any legislative power."[30] But is it not natural to expect that those for whom the oracles expound the "fundamental principles" should believe that the voice of the numen is not always correctly understood and that in the process of exposition some of the power once thought to belong to the people or to their representatives has been silently and surely dissipated?[31]

2. Underlying Purpose of the Revival of the Natural Law Philosophy in American Constitutional Law. American constitutions were drafted when there was a deep-seated conviction that the people could not be trusted and that well-defined checks must be placed upon the rule of the people. It was under these conditions that the courts with strong popular approval asserted the right, which they held to be implied from the language of the written constitution, to declare void legislative acts deemed to be in conflict with the written fundamental law. A growing distrust for legislative assemblies encouraged the courts not only to hold invalid acts regarded as contrary to the express language of the written constitutions, but to construe implied limitations supposed to be derived from the doctrine of natural and inalienable rights and from the notion of fundamental individual rights. Again the courts were encouraged and supported in a continuous line of decisions, mostly rendered since the Civil War, to place other implied limits on legislative powers in addition to the varied list of express limitations added by vote of the people. By extending judicial review of legislation through the developing doctrine of protecting vested rights, through the change in the meaning of due process of law, to render it a general limitation on legislative powers, and through giving new force and meaning to the separation of power theory,[32] the courts have gradually assumed a general right of censorship over legislation to see that it is not arbitrary or unfair and that it does not violate any of the judicially construed "fundamental principles" of the social order. A mild and relatively unimportant practice of judicial review of legislation for nearly a century has during the last few decades loomed up as the controlling feature of the American system of constitutional government.

The judicial power to declare laws unconstitutional gradually introduced a new concept of due process by expanding what the courts had been inclined to regard as the inherent limitations on legislative powers. The doctrine of inherent limitations on legislatures had been applied at first to the protection of vested rights. It was a different matter to insist in the name of due process of law upon an immunity of individual action from legislative control.

It was such Justices as Field, Harlan, Brewer, and Peckham in the federal courts and Justices Edwards, Comstock, and Denio in the state courts, the champions of a revived eighteenth-century individualism, of the policy of economic laissez faire, and of conservative political tendencies, who gave the natural rights or modern higher law doctrine the peculiar trend which now marks the process of constitutional interpretation in state and federal courts.[33] As upholders of individualistic and laissez faire doctrines in an age of unceasing legislative activities the courts were made censors of economic and social legislation under the higher law doctrine of American constitutional law — the rule of reason.

Being rather insecure as a basis for legislative limitations, the former doctrine held a precarious place in American constitutional law, especially when the tendencies were in the direction of the extension of popular control over all agencies of government. When, however, this doctrine was absorbed in the general phrases "due process of law," "equal protection of the laws," "public purpose for taxation," "public use for eminent domain," and "reasonableness," it was given the semblance of express constitutional sanction. Henceforth judges and lawyers could confidently assert that courts no longer passed upon the wisdom or expediency of legislative acts. They merely applied in a mechanical way, it was insisted, the express words of the constitution which by "indubitable demonstration" compelled the laying of the axe at the root of legislative power. This change in basis has not affected the character of the higher law doctrine which constitutes today the central feature of American constitutional law. A new law of nature and a new rule of reason were in process of development. Instead, however, of serving as in Roman and in mediaeval times, as an agency for the liberalization of the law, as an ideal toward which law was approximating, it became the weapon of a fixed, immutable order which was designed to serve as a check on progressive or radical measures, and to restrict within well-defined limits the liberalizing tendencies which were characteristic of an age of extensive lawmaking.[34]

The repeated assertions, then, by lawyers and judges in the United States that the right to hold laws invalid because they are unwise or unjust, or because they run counter to natural and inalienable rights, have never been applied to concrete cases, may readily be explained.

Before the extensive implications of due process of law and other similar phrases had been discovered, it was not uncommon for justices to refer to fundamental principles or natural rights as a basis to invalidate acts. Before the Civil War, when, on the whole, relatively few acts were held void by the courts, certain of the decisions invalidating acts were based definitely upon the doctrine of fundamental rights, the principles of free government, or other implied limitations related in a sense to the higher law philosophy. Sometimes constitutional provisions were held applicable; other times there seemed to be little inclination to seek for appropriate constitutional sanction other than the general clauses in the bills of rights.[35] But the reason why it is claimed that the courts have not been passing upon the wisdom or unwisdom of acts under a natural rights doctrine is due to the fact that the due process clause was interpreted to include and embody such a doctrine. From that time on, instead of referring to these general limitations as inherent in all governments, or to the older theories of natural law, the courts began to refer to "due process of law," "equal protection of the laws," and other general terms interpreted to include natural and inalienable rights.

When it is contended, then, that the courts do not pass upon the wisdom or unwisdom, policy or impolicy, the reasonableness or unreasonableness of legislative acts it merely means that in the determination of whether an act is or is not due process of law there is involved the full content of the old doctrine of natural and inalienable rights, of the principles of the social compact, and of the former dogmas of free republican governments, all of which involved questions of political expediency.[36] Having brought the straggling and insecure phrases of "natural law" or "natural justice" and of the "fixed principles of republican governments" into due process of law it was confidently asserted that all decisions of the courts dealing with the validity of legislative acts were based upon the express provisions of written constitutions.[37]

The conclusion of the matter seems to be that beginning with the eighteenth-century notions of natural rights and of limiting and dividing powers, the states of the American union turned in the direction of unrestricted powers in the hands of the legislative bodies, and then adopted the policy of placing larger and more effective limits upon legislatures. The reason for this can be found largely in the belief that legislatures had unduly interfered with property rights and in the fear that property and contracts were not safe unless many restrictions were imposed upon representative bodies.

The courts, having invaded the legislative domain by the interpretation of the general terms of the Fifth and the Fourteenth Amendments, in determining whether legislation is in effect wise, expedient, or reasonable in its object, we are now advised that it is futile to criticize what has been done. It is asserted to be a "question of purely academic interest" whether the court's version of due process of law was historically correct.[38] The only profitable study is declared to be when and under what circumstances does the amendment serve as a restriction on the states. Though the meaning now given to due process of law requires the courts to deal with problems of legislative policy it is thought to be idle "to criticize the courts for invading the field of policy in deciding 'due process' cases. There is nothing else that they can do as long as the doctrine prevails that these clauses limit the subject matter of legislation. This might as well be frankly recognized by all concerned."[39]

Such legal pessimism is indefensible. It is equivalent to saying that when judges choose to take from the people their right of self-government with no express sanction for such action, there is no remedy but servile submission. It is possible to amend the Fourteenth Amendment and if the trend of the past thirty years continues, sufficient groups and interests will be confined by its limitations to create a sentiment which will render its alteration possible. Whether such a radical step be desirable or not, the bringing of constant pressure on the court through all the available avenues of public opinion may secure a reversal of some decisions which have proved most obnoxious. It does not seem impossible to secure on the federal bench judges whose training and experience, according with the prevailing sentiment of the community, may decide that the historic theory of the separation of powers is still valid and applies to judges as well as to other officers, and hence, that matters of social, economic, and political policy belong of right to the legislative branch of the government. Due process of law might then be retained in somewhat of its original meaning as a limitation on procedural matters. If, as Professor Powell observes, the vital matter in the interpretation of the due process clause of the Constitution is not one of economics, of law, or of public policy, but of the arbiters who ultimately decide cases,[40] is it not time that more attention be given to the selection of the arbiters and to the influencing of their work as final interpreters of the fundamental law? As the repeal of the Fourteenth Amendment is a remote contingency, the concentration of public attention in the direction of confining judges to their normal function of deciding cases involving private rights in accordance with previously determined legislative policies, rather than of determining the wisdom or expediency of public policies, seems the only practical procedure. Though it offers small hope of immediate relief for those who chafe under the restrictions which now interfere with advances along the lines of social and industrial reconstruction, at least it gives an objective for the present to take issue with the supporters of the status quo and the juristic pessimism which they espouse.[41]

3. Types of Natural Law applied in the United States. During the nineteenth century natural law theories were applied in the United States by different groups for a variety of purposes. There were occasional references to the divine sources of law and to natural laws emanating therefrom which were binding upon all men. In the early decades of the nineteenth century the justices frequently made use of natural law as a liberalizing and creative concept similar to its use in Roman times and in the later mediaeval periods. But its use was creative only in the sense that it facilitated the borrowing of legal precepts from European legal systems. Conceived as a body of rational principles of which actual legal rules were only declaratory, the natural law philosophy, Dean Pound thinks, "was at its best when courts were called on to utilize the peculiar social and political institutions of pioneer America in developing and supplementing the legal materials afforded by the English common law, the Continental treatises on commercial law, and comparative law."[42] When an attempt was made to put judicial decisions in the fields of international law or of constitutional law into a philosophical mold, the law of nature theories of Grotius, of Pufendorf, of Vattel, or of Burlamaqui were given a meaning suitable to the legal and political conditions of the time. At times natural law as a basis of natural rights might be identified with the rights and duties of an abstract man in a state of nature or perchance with the immemorial common law rights as formulated by Coke and Blackstone. It might also serve to modify a rigorous rule of the formal law. "The American variant of natural law was especially an outgrowth of the review of legislative acts by the courts and the efforts of the justices to deduce general principles of constitutional law from the social compact, from the nature of free government, or from the fundamental and inalienable rights of the individual."[43]

In the hands of American judges natural law ideas were a favorite refuge for giving sanction to the negative and restrictive ideas of the eighteenth century that governmental functions should be confined to a narrow sphere. They formed the background for the American doctrine of civil liberty, the chief purpose of which is to safeguard individual rights and to place restrictions on political action to accomplish this end. A legal philosophy was fostered, the chief aim of which was to support the existing order or to recur to the past for standards to test the validity of new forms of legislation. This philosophy assisted in forming what foreign critics have called "the straight jacket" into which the powers of government had to fit or be denied validity.

These natural laws negative and destructive in effect acquired by the end of the nineteenth century a stamp of inexorability. They placed certain legal phenomena beyond the realm of conscious human control and bred a philosophy of juristic pessimism, which accords well with the practices and beliefs of those who seek protection but not interference with their "private" affairs. They became obstacles to the growth and improvement of the law.

American constitutional law is saturated with natural law ideas. The old law of nature was crystallized into certain standard formulae in the bills of rights in state and federal constitutions and then was given renewed vigor in the construction of the general phrases which were made a part of the fundamental law. Formerly when the statute, code, legal procedure, or some formal rule in the administration of the law proved to be arbitrary and unreasonable the law of nature was appealed to as an ideal law to require a modification of the harsh or unfair rule or to have it set aside as void. The new law of nature formulated by the justices in American courts affirmed certain standards of reasonable and fair conduct on the part of government officers which were presumed to be fixed in the fundamental written law through such terms as "due process of law" and "the equal protection of the laws." When legislators and executives undertook to enact or enforce rules or laws to ameliorate some of the inequities or inequalities in the existing economic or social order, to regulate conduct in the interest of classes which are deemed to require special protection, or to regulate and restrict uses of property in what is deemed to be the public interest, the justices scanned these acts to see whether they were within the confines of reasonable and fair conduct as were supposed to be rendered fixed and unalterable in the written constitution.[44]

As a matter of fact, then, natural law flourishes in the United States despite the insistence from many quarters that it belongs in the realm of exploded vagaries.[45] But judges and courts are applying an historical Naturrecht derived from the principles and precedents of the common law and modified by the individualist natural law of the eighteenth century.[46] Insistent efforts are made to deny the use of general principles or standards based on natural law reasoning and fictions are used to conceal the process. It is futile, however, to refuse to face the facts, and "to hide from ourselves the general principles which we do in fact follow, and to delude ourselves into the belief that we have no philosophy."[47]

4. Natural Law Theories as a Sanction for American Political and Legal Conservatism. It is obvious that natural law thinking of various types has played a significant rôle in the growth of private and public law in the United States. There have been in this growth new applications of the principles of fair conduct for a fiduciary, of reasonable conduct in the law of negligence, of fair competition in business transactions, and of fair value and reasonable return in public utility control. And in public law the use of natural law theories for various purposes has been continuous from colonial times to the present day. Conceived in the spirit of democracy and liberalism, these theories gave sanction to those who attacked the existing legal order and who through revolution gained the independence of the American states. Throughout the early periods of American history the natural law doctrines were employed mainly for idealistic, progressive, and revolutionary purposes.

But the first stage in this development had not passed when similar doctrines were approved in order to set limits to governmental action for ends that were conservative, aristocratic, and authoritarian. As the idealistic and progressive uses of natural law have declined the conservative and aristocratic uses have been extended. And it is in the review of legislation by the courts that the conservative, authoritarian type of natural law has been fostered. The most significant applications of such higher law ideas have arisen when the courts have become the constitutional censors of the acts of legislative and executive action, whether of federal or state agencies.[48]

It is customary to assert that it is a sheer mis-statement to say that American courts in exercising judicial review of legislation assume a supervisory power over the legislative and executive branches of the government.[49] Such an observation had a modicum of accuracy when the courts held few acts invalid and then only because they were regarded in conflict with some clear and well-understood terms of a written fundamental law. Such is the review exercised as a rule over legislation by the Canadian courts and the Privy Council for Canada and by the Australian courts. It is a different matter when the courts use phrases such as due process of law, equal protection of the laws, fair return and reasonable rates for use of property, acts not arbitrary or capricious or designed to shock the sense of mankind as grounds for review of legislation. These phrases, applied as they usually are to a complicated state of facts and used to test the validity of some act regulating economic or social relationships, take judicial review out of the inexorable and mechanical realm in which decisions follow indubitable logic. The reasoning regarding judicial review, which Hamilton and Marshall attempted to put on a plane of dry logic, fails either to justify or to explain the practice when based on indefinable general phrases.[50]

An analysis of the different provisions of written constitutions shows that the courts have a variety of types of provisions to interpret. Some provisions, such as that all political power resides in the people, are political in character and cannot be tested by ordinary legal criteria. When the legislature is inhibited from passing bills of attainder or ex post facto laws or from interfering with individual rights by abolishing trial by jury in criminal cases there are available to judges for guidance in applying these provisions fairly definite legal precepts. But these semi-political provisions and the clauses relating to criminal trials have a relatively minor place in modern constitutional interpretation by the courts of the United States. For it is rather legal conceptions derived from the constitutions by interpretation such as the police power, liberty of contract and of calling, and the general requirement that no one shall be deprived of life, liberty, or property without due process of law which now furnish the most important bases for the review of the validity of legislative acts. And here judges have no legal rules to guide them. Passing as they often do in these cases on the reasonableness of social legislation they are essentially dealing with legislative questions — not with a mechanical legal technique.

The problem of what ought to be law, what is reasonable, arbitrary, or fair, really is an exercise of veto power. As a matter of fact, the mechanical, necessitous doctrine which became a tradition in the early period of American constitutional law does not apply to the invalidating of acts on the ground of lack of fairness or reasonableness under the Fifth and Fourteenth Amendments of the federal Constitution or under similar provisions of the state constitutions.

The acute controversies on the interpretation of the federal Constitution for the last fifty years have arisen out of the interstate commerce and due process of law clauses. It has been repeatedly pointed out that the judgments of the court along these lines are primarily judgments on facts and only secondarily on the law. Concepts like "liberty" and "due process" are too indefinite to solve issues. They derive meaning only if referred to human facts.[51] "Here is where the great practical evil of the doctrine of immutable and necessary antecedent rules comes in," according to John Dewey, "it sanctifies the old; adherence to it in practice constantly widens the gap between current social conditions and the principles used by the courts. The effect is to breed irritation, disrespect for law, together with virtual alliance between the judiciary and entrenched interests that correspond most nearly to the conditions under which the rules of law were previously laid down."[52]

Only the misinformed or extreme partisans claim any longer that there was any necessity in the adoption of a written constitution, as John Marshall insisted, for courts to review the validity of legislative acts. Partisan feelings and self-interest also account for the failure to admit that much the more important phases of judicial review of legislation in the United States are the result of judge-made limitations designed to give legal sanction to conservative tendencies of the time. It is not surprising then to find conservative leaders insistent on the maintenance and extension of the powers of the courts. "There are today," said Justice Brewer before the New York State Bar Association,

ten thousand millions of dollars invested in railroad property, whose owners in this country number less than two million persons. Can it be that whether this immense sum shall earn a dollar or bring the slightest recompense to those who have invested perhaps their all in that business and are thus aiding in the development of the country, depends wholly upon the whim and greed of the great majority of sixty millions who do not own a dollar! I say that so long as constitutional guarantees lift on American soil their buttresses and bulwarks against wrong, and so long as the American judiciary breathes the free air of courage it cannot.... What then is to be done? My reply is, strengthen the judiciary.

Not only have the courts construed constitutional guarantees to protect the property interests of corporations but in an epoch-making decision the Supreme Court of the United States has also held that legislative and administrative agencies in regulating public utilities and in fixing rates must be subject to review by the courts on both the law and the facts in order that governmental action affecting utility properties may not be unreasonable and that their properties may not be confiscated. Such a decision has placed upon the courts ultimately the examination of the intricate processes of the valuation of public utilities, the determination of what is a fair value of the property for rate making, what is a fair return on this valuation, and what is reasonable regulation. Thus great questions of legislative policy as to the regulation of utilities are carried to the courts and what the ultimate methods of regulation may be are determined by the standards which the justices lay down. Since courts are better qualified to protect property rights than to preserve individual privileges and the public good, the owners of public utilities have been encouraged to defy the authority of the government.

In recognition of the influence of personal and individual factors in the legislative activity of judges such standards as fair return, reasonable care, and due diligence are applied in England by administrative boards or by courts with a jury passing judgment on the facts. The English people have never accorded to judges the authority to determine the validity of legislative acts no matter how fundamental the rights of the individual which might be invaded. There is in this regard a striking difference between the practice of the English and of the American courts.

Because of the natural conservatism and the class bias of judges the English people have surrounded judicial legislation with definite limitations and have invariably preserved the corrective power of Parliament. The reasons for these checks on the legislative powers of the courts are thus expressed by two English commentators:

The courts or the judges, when acting as legislators, are, of course, influenced by beliefs and feelings of their time, and are guided to a considerable extent by the dominant current of public opinion; Eldon and Kenyon belonged to the era of old Toryism as distinctly as Denman, Campbell, Erle and Bramwell belonged to the age of Benthamite liberalism. But whilst our tribunals, or the judges of whom they are composed, are swayed by the prevailing beliefs of a particular time, they are also guided by professional opinions and ways of thinking which are to a certain extent independent of and possibly opposed to the general tone of public opinion. The judges are the heads of the legal profession. They are advanced in life. They are for the most part persons of a conservative disposition. They are in no way dependent for their emoluments, dignity, or reputation upon the favor of the electors, or even of ministers who represent in the long run the wishes of the electorate. They are more likely to be biased by professional habits and feeling than by the popular sentiment of the hour. Hence, judicial legislation will often be marked by certain characteristics rarely found in acts of Parliament.[53]

The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgment as you would wish. This is one of the great difficulties at present with Labour. Labour says: "Where are your impartial Judges? They all move in the same circle as the employers and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice?" It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.[54]

When due process of law and the equal protection of the laws are under interpretation the determination of the issues involved depend "in large part upon the composition of the court of last resort at the particular time when the issue comes before it."[55]

Governments were in process of formation in the United States when eighteenth-century ideas of checking and dividing powers were uppermost in political thought. John Randolph thought it was necessary to base governments on the doctrine of original sin and the natural depravity of the human race and to devise restraints accordingly.[56] From such a philosophy there was evolved the dictum that what was desired was a "government of laws and not men" — or in English phraseology the supremacy of the laws.

Professor Dicey regarded the supremacy or rule of law as a characteristic of the English constitution and explained that "it means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government."[57] That there is a decline in the recognition accorded to the rule of law, Dicey recognizes.[58] Coincident with this change in the English legal system there is a noteworthy effort to foster the sanctity of this rule as the central principle of constitutional government in the United States.

The doctrine of judicial review of legislative enactments is regarded as a practical and effective device to extend the rule of law. It has become part of the creed of those who desire to apply the rule of law to all spheres of government or to limit the omnipotent sovereign by a higher law either of a fixed and immutable kind or of a variable content. If Lord Acton is correct in the assertion that "the great question is to discover not what governments prescribe but what they ought to prescribe," jurists are likely to turn to the American practice of judicial review of legislative acts as a practical means of enforcing the principles of a variable natural law, though few will favor the adoption of such a practice if a natural law of an eighteenth-century type is to be applied by justices who regard the principles of this law as immutable.

Denying that they are applying anything but the express terms of written constitutions the justices of higher courts in the United States have in effect created a super-constitution, a superior law which in certain respects is regarded as unchangeable by the people themselves. Safely intrenched as the sole interpreters of this super-constitution they have determined what is wise or unwise for the representatives of the people to undertake in the realm of political experiment.[59] When a type of political action is not liked it may readily be condemned as capricious or arbitrary or unreasonable.

The warnings of the great constitutional lawyer, James Bradley Thayer, however, may well cause us to ponder on the tendency to lean too heavily on the courts.

Great and, indeed, inestimable, as are the advantages in a popular government of this conservative influence, — the power of the judiciary to disregard unconstitutional legislation, — it should be remembered that the exercise of it, even when unavoidable, is always attended with a serious evil, namely the correction of legislative mistakes comes from the outside, and the people lose the political experience, and the moral education and stimulus that come from fighting the question out in an ordinary way, and correcting their own errors. If the decision in Munn v. Illinois, and in the "Granger Cases," twenty-five years ago, and in the "Legal Tender Cases," nearly thirty years ago, had been different; and the legislation there in question, thought by many to be unconstitutional and by many more to be ill advised, had been set aside, we should have been saved some trouble and some harm. But I venture to think that the good which came to the country and its people from the vigorous thinking that had to be done in the political debates that followed, from the infiltration through every part of the population of sound ideas and sentiments, from the rousing into activity of opposing elements, the enlargement of ideas, the strengthening of moral fibre, and the growth of political experience which came out of it all, — that all this far more than outweighed any evil which ever flowed from the refusal of the court to interfere with the work of the legislature.

The tendency of a common and easy resort to this great function, now lamentably too common, is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility. It is no light thing to do that.

What can be done? It is the courts that can do most to cure the evil; and the opportunity is a very great one. Let them resolutely adhere to first principles. Let them consider how narrow is the function which the constitutions have conferred on them, — the office merely of deciding litigated cases; how large, therefore, is the duty entrusted to others, and above all to the legislature. It is that body which is charged, primarily, with the duty of judging of the constitutionality of its work. The constitutions generally give them no authority to call upon a court for advice; they must decide for themselves, and the courts may never be able to say a word. Such a body, charged, in every State, with almost all the legislative power of the people, is entitled to the most entire and real respect; is entitled, as among all rationally permissible opinions as to what the Constitution allows, to its own choice. Courts, as has often been said, are not to think of the legislators, but of the legislature, — the great, continuous body itself, abstracted from all the transitory individuals who may happen to hold its power. It is this majestic representative of the people whose action is in question, a coordinate department of the government, charged with the greatest functions, and invested, in contemplation of law, with whatsoever wisdom, virtue, and knowledge the exercise of such functions requires.

To set aside the acts of such a body, representing in its own field, which is the highest of all, the ultimate sovereign, should be a solemn, unusual, and painful act. Something is wrong when it can be other than that. And if it be true that the holders of legislative power are careless of evil, the constitutional duty of the court remains wholly untouched; it cannot rightly undertake to protect the people by attempting a function not its own. On the other hand, by adhering to its own place a court may help, as nothing else can, to fix the spot where responsibility rests, viz., on the careless and reckless legislators, and to bring down on that precise locality the thunderbolt of popular condemnation. The judiciary, today, in dealing with the acts of co-ordinate legislatures, owes to the country no greater or clearer duty than that of keeping its hands off these acts whenever it is possible to do it. That will powerfully help to bring the people and their representatives to a sense of their own responsibility.[60]

Under no system, Thayer thinks, can the courts go far to save the people from ruin. We are much too apt to think of the judicial power of disregarding acts of the other departments as our only protection against oppression and ruin. But it is remarkable how small a part this played in any of the debates on the federal Constitution. The chief protections were a wide suffrage, short terms of office, a double legislative chamber, and the so-called executive veto.[61]

The judges have insisted that when in doubt the courts should interpret constitutional provisions favorable to legislative powers. If this principle had been followed there would have been scant foundation for the construction of implied limitations on legislatures; and due process of law would have had slight effect on substantive legislative powers. Numerous opinions of the Supreme Court give indisputable evidence that the Fourteenth Amendment need not have been interpreted so as to greatly narrow the field of state legislation. A continuous line of dissents by the justices of the court in due process cases indicates that on a fair interpretation of the language of the amendment the states might have been allowed much greater freedom in the realm of social and economic legislation. The distinction is sometimes not clearly recognized that the construction of an implied power doctrine by which constitutional provisions are adapted to new conditions is justifiable as a principle of legal growth, whereas the interpretation of a doctrine of implied limitations as a means to retard and confine legal development is indefensible.

Though the religious and metaphysical concepts of natural law, since the eighteenth century, have had relatively slight influence in the growth of law in the United States, natural law as an ideal has been a not insignificant factor in the minds of judges and legislators as they were molding into a system the legal materials at hand so as to meet the social, economic, and political conditions of the day. And at the time that the theories of the Positivist School of jurisprudence were prevailing, which denied the potency of any natural law ideas, a pragmatic trend in American legal philosophy was giving a new turn to the application of natural law theories. When, through the prevalence of pioneer ideas and ideals, governments were made more democratic and were gradually encouraged to extend their control over many heretofore unregulated phases of economic life restraints were sought to place restrictions on the zealous activities of popularly elected representative bodies. It was then that the moral obligation to govern reasonably and justly was translated into legal phraseology by means of the old common law precept — due process of law.

But instead of conceiving the moral duty to govern reasonably as an ideal to which law was expected to conform in meeting the needs of a growing community as conditions changed, it was thought of as a standard to protect the interests of certain classes. Due process of law was to accord justice not as required by the varying conditions of an increasingly complex economic life but justice designed to make more secure the property or other interests of those intrenched in power. By requiring certain formal criteria for all legislative and administrative action the status quo economically would not be too rudely or radically disturbed. Social and economic conditions might be regulated within limited areas as long as due care was taken to leave certain classes of property rights undisturbed. Due process of law became the weapon for the application of a class reason and a class justice.[62]

Building on the foundations of Wilson, Hamilton, Marshall, and Webster, Justices Chase, Kent, Story, Cooley, with the aid of other justices in state and federal courts, constructed a check which the conservative classes were demanding. In applying Marshall's notable dictum that this was "a government of laws and not of men" a criterion was evolved by which judges exercised a selective process as to what were, in their judgment, properly called "laws" and in this selective process the courts had in mind "a background of fundamental principles" which are beyond the reach of any legislative power.[63]

The modern American theories of natural law embodied as integral parts of constitutional due process of law and equal protection of the laws are essentially theories in terms of "the self-interest of the socially and economically dominant class." Former theories, which were used to good advantage when the English common law and the principles of Continental law were adapted to the conditions of pioneer rural American conditions, have become obstacles to change, devices to sanctify the existing legal order, and sanctions for the maintenance of the status quo in the regulations of economic and social conditions.[64]


The avowed use of reasonableness and other concepts related to natural law by the Justices of the Supreme Court of the United States in a single year (October term, 1924) demonstrates the prominent place such ideas have acquired in federal constitutional interpretation.

The fee fixed by a state act is arbitrary and the number of shares is not a reasonable basis for the classification of foreign corporations for the determination of an annual fee.[65]

There is no suggestion of a flagrant abuse or purely arbitrary exercise of taxing power.

The Court will review a case only-when there is a question of law or when action under a law is "clearly arbitrary or capricious."[66]

An assessment is not inherently arbitrary — no unreasonable result.[67]

State assessments are valid unless "palpably arbitrary or a plain abuse of power" or result in a "manifest and unreasonable discrimination."[68]

The action of a state utility commission must not pass beyond the bounds of what is reasonable and suitable.[69]

The order of a utility commission is not "inherently arbitrary." [70]

An award of the Secretary of the Interior is held not "arbitrary or capricious or fraudulent or an abuse of discretion."[71]

An order of a utility commission is held "arbitrary" and "capricious."[72]

The Fourth Amendment condemns unreasonable searches and seizures. A search of an automobile for probable cause is held reasonable.[73]

The method of classification adopted in the Federal Income Tax is held not "merely arbitrary and capricious."[74]

There is not an unreasonable interference with the liberty of contract.[75]

Classification for state taxation is held reasonable and valid when it does not result in flagrant and palpable inequalities.[76]

A power exercised by Congress must be reasonably adapted to the effective exercise of delegated powers.[77]

A provision was not so "unreasonable as to be a purely arbitrary mandate." [78]

An inference allowed by law is held not "fanciful, arbitrary or unreasonable."[79]

A rule of a utility commission is declared arbitrary and unjust. Utility rates if unreasonable need not be confiscatory to be invalid.[80]

The court will give relief for arbitrary, unreasonable, and unlawful interference with business and property and unreasonable interference with the liberty of parents and guardians in bringing up children.[81]

There was no evidence of arbitrary or unfair action .[82]

State acts are unconstitutional only when they are arbitrary or unreasonable attempts to exercise authority vested in the state. A statute is not an arbitrary or unreasonable exercise of police power.[83]

Claims of unreasonable and arbitrary action, hostile discrimination, or purely arbitrary exercise of power were made in numerous other cases passed on by the court.

October Term, 1924

Total cases under the Fifth and Fourteenth Amendments 45 cases

  • A. Denial of due process of law under the Fourteenth Amendment distributed as follows: 27 cases
    • State act or part of act held valid 8
    • State act or part of act held invalid 3
    • State administrative proceeding or order held valid 11 (relief denied 1)
    • State administrative proceeding or order held invalid 3
    • Judicial proceedings held valid 1
    • Denial of equal protection of laws 1
  • B. Denial of due process of law under the Fifth Amendment distributed as follows: 16 cases
    • Act of Congress held valid 4
    • Act of Congress held invalid 0
    • Administrative proceedings held valid 7
    • Administrative proceedings held invalid 3
    • Judicial proceedings held valid 2
    • Decisions based on other provisions of Constitution (due process of law incidental) 2 cases
  • C. Grounds for appeal under due process provisions
    • 1. Attempt to protect personal rights
      •   Proceedings
        Fourteenth Amendment 7 3
        Fifth Amendment 7 2
      • Individuals are granted relief in 5 cases
    • 2. Corporations attack tax proceedings 11
      • Corporations attack public utility regulations 7
      • Corporations secure relief in 10 cases

1. A. J. Beveridge, The Life of John Marshall, III, 109.

2. F. N. Thorpe, "Hamilton's Ideas in Marshall's Decisions," Boston University Law Review, I (1921), 9.

3. Edward Q. Keasbey, "The Courts and New Social Questions," Maryland State Bar Association Proceedings (1911), p 105.

4. Dillon, Laws and Jurisprudence of England and America, p 204.

5. Pound, "The Growth of Administrative Justice," Wisconsin Law Review, II (January, 1924), 327.

6. George C. Gorham, Biographical Notice of Stephen J. Field, p. 63.

7. Gorham, op. cit., p. 64.

8. Felix Frankfurter, "Twenty Years of Mr. Justice Holmes' Constitutional Opinions," Harvard Law Review, XXXVI (June, 1923), 909; Pound, "Liberty of Contract," Yale Law Journal, XVIII (May, 1909), 454, 470; and The Spirit of The Common Law, p. 49.

9. Ex parte Wall, 107 U. S. 265 (1882).

10. Bartemeyer v. Iowa, 18 Wall. 129 (1873).

11. An able associate of Justice Field during the short term he served on the court was Justice Strong. He not only joined Field in his dissents condemning the legislative power to control property rights, but also became an advocate of the federalist doctrine favorable to the protection of vested rights, which, he claimed, "no matter how they arise, they are all equally sacred, equally beyond the reach of legislative interference." Sinking Fund Cases, 99 U. S. 700 (1878).

12. F. B. Clark, The Constitutional Doctrines of Justice Harlan, Johns Hopkins University Studies, XXXIII (Baltimore, 1915), 4, 15.

13. Taylor v. Beckham, 178 U. S. 548, 601 (1899), and Clark, op. cit., p. 75. "The doctrine of legislative absolutism is foreign to free government as it exists in this country," thought Justice Harlan. Ibid., p 609.

14. Norwood v. Baker, 172 U. S. 269 (1898).

15. Clark, op. cit., p. 144.

16. Justice Hough comments on the changing personnel at this time which brought to the court in Justice Brewer "a powerful reinforcement of the school of Field." Harv. Law Rev., XXXII, 228.

17. Obviously this was not thought to be the case with those who drafted the instrument, or those who directed political affairs when it was put into operation. Nor was this belief prevalent among the federalist leaders who controlled the government during the fifty odd years that this party was in power in one or more branches of the federal government. It remained for the period after the Civil War, and for such defenders of the individualistic faith as Justices Field and Brewer, to discover that the Declaration was the cornerstone of the Constitution. See Carl Becker, The Declaration of Independence (New York, 1922).

18. People v. Gillson, 109 N. Y. 389, 398, 399 (1888).

19. 198 U. S. 45 (1904).

20. For approval of the doctrine of this case see the opinion of Justice Sutherland in Adkins v. Children's Hospital, 261 U. S. 525 (1922).

21. See Edward S. Corwin, "The Extension of Judicial Review in New York," Michigan Law Review, XV (February, 1917), 285.

22. James M. Rosenthal, "Massachusetts Acts and Resolves Declared Unconstitutional by the Supreme Judicial Court of Massachusetts," Massachusetts Law Quarterly, I (August, 1916), 303 ff.

23. Corwin, op. cit., pp. 303, 304.

24. Rosenthal, op. cit., p. 317.

25. Justice Woodward commented on the caution of the courts prior to the Civil War in exercising the right to invalidate acts in Pennsylvania as follows: "For nearly fifty years of our political existence under the Constitution of 1790, no act of assembly was set aside for unconstitutionality; judges claimed the power, and said they would exercise it in clear cases, but in all that period no case arose which in their judgment, was clear enough to justify the exercise of the power; and it is well known that that great light of this bench so recently extinguished [Chief Justice Gibson] stood opposed for many years to the existence of any such power. Since the Constitution of 1838 was adopted several acts of assembly have been declared unconstitutional, but they were all clear cases." Sharpless v. Mayor of Philadelphia, 21 Penna. St. 148, 183 (1853).

26. Dr. Mott thinks the courts regard the Fourteenth Amendment as "a constitutional ideal." Due Process of Law, p. 360. This is equivalent to the view that the amendment is used to write into the fundamental law the ideals which the justices believe ought to prevail. According to Justice Holmes due process of law ought not to become "a pedagogical requirement of the impracticable." Dominion Hotel v. Arizona, 249 U. S. 265, 268 (1918).

27. Le gouvernment des juges et la lutte centre la legislation sociale aux États-Unis (Paris, 1921), pp. 32, 33, 41; also pp. 220, 221. See also, Edouard Lambert and Halfred C. Brown, La lutte judiciaire du capital et du travail organisés aux États-Unis (1924).

According to Professor Powell the "law of constitutional due process is therefore as much judge-made law as any common law is judge-made law." "The Judiciality of Minimum Wage Legislation," Harv. Law Rev., XXXVII, 545, 546.

28. Lambert, op. cit., pp. 53, 55, 60.

29. Cuthbert W. Pound, "Constitutional Aspects of Administrative Law," in The Growth of American Administrative Law (St. Louis, 1923), p. 103.

30. A. M. Kales, "'Due Process,' the Inarticulate Major Premise and the Adamson Act," Yale Law Jour., XXVI (May, 1917), 519.

31. According to Stephen Leacock, "American democracy, having by its degradation of the legislature repudiated its first born child has set up for itself the Mystic Worship of Judicial Interpretation." "The Limitations of Federal Government," American Political Science Association Proceedings (1908), p. 51.

32. Warren H. Pillsbury, "Administrative Tribunals," Harv. Law Rev., XXXVI (February and March, 1923), 405, 583.

33. For laissez faire theories, see People v. Coler, 166 N.Y. 1, 16-18, 23-25 (1901), and Ives v. South Buffalo Ry. Co., 201 N.Y. 271, 285-287, 203-295 (1911). The right to take property by will was held to be an absolute and inherent right in Nunnemacher v. State, 129 Wis. 190, 198, 203 (1907); and the right of privacy was considered as "derived from natural law" by Justice Cobb in Pavesich v. Life Ins. Co., 122 Ga. 190, 194 (1905).

34. Speaking of the dangers of socialism and communism, Mr. Guthrie says," Much is to be dreaded and guarded against in the despotism of the majority wielding and abusing the power of legislation, and ignorantly or intentionally undermining the foundations of the Constitution itself ... the Fourteenth Amendment is the bulwark on which we place our reliance." Lectures on the Fourteenth Amendment to the Constitution of the United States, pp. 30, 31. He admonishes the lawyers "to realize their duty to teach people in season and out of season to value and respect individual liberty and the rights of property." Ibid., p. 32.

35. For a summary of leading decisions, see "The Law of Nature in State and Federal Judicial Decisions," Yale Law Jour., XXV (June, 1916), 617.

36. In declaring a law unconstitutional, a court must necessarily cover the same ground which has already been covered by the legislative department in deciding upon the propriety of the enactment. Cooley, Constitutional Limitations (8th ed), I, 334.

37. "The Justices of the United States Supreme Court have taken counsel together regarding the present political tendencies, so far as they seem to the Justices to menace the Constitution, and have determined that upon the Supreme Court rests the burden of standing between the Constitution and popular passion." Quoted by Richard Olney, in "Discrimination against Union Labor — Legal?" American Law Review, XLII (March-April, 1908), 161; sec. 43 Cong. Rec. Pt. I, 20-22, message of President Roosevelt.

The change in the meaning of the terms "liberty" and "property" as used in the Constitution from the narrow implications of physical liberty and property to economic liberty, was "the reflection in the minds of the judges of the business revolution which followed the extension of markets and the political revolution that liberated the slaves." John R. Commons, Legal Foundations of Capitalism, p. 283.

38. Ray A. Brown, "Due Process of Law, Police Power, and the Supreme Court," Harv. Law Rev., XL (May, 1927), 947. Cf. emergence of the court's doctrine through Slaughter-House Cases, 16 Wall. 36 (1872); Bartemeyer v. Iowa, 18 Wall. 129 (1873); Missouri Pacific Ry. v. Humes, 115 U. S. 512 (1885), and Mugler v. Kansas, 123 U. S. 623 (1887).

39. Henry Rottschaefer, "The Field of Governmental Price Control," Yale Law Jour., XXXV (February, 1926), 438.

40. Thomas Reed Powell, op. cit., p. 545.

41. The real object at present of the due process clauses of the federal Constitution is to enable the Supreme Court to determine whether acts of Congress or of the state legislatures are reasonable. Cf. Willis, op. cit., pp. 338, 339. Mr. Willis suggests an addition to the Fourteenth Amendment to the effect that the due process clause shall not be interpreted to include matters of substantive law. Ibid., pp. 343, 344.

42. "The Theory of Judicial Decision," Harv. Law Rev., XXXVI (May, 1923), 808.

43. Cf. Pound, An Introduction to the Philosophy of Law (New Haven, 1922), pp. 50-52.

44. "The objection to this view is that the court must judge by a standard of fairness that is not, and could not be, definitely expressed in the Constitution. This, of course, is the fundamental difficulty in all due process cases. Groping for some standards, the courts are tempted to revert to the old language of natural rights, as though such rights were an over-law above the Constitution itself." Note on the case of Moore v. Dempsey, Harv. Law Rev., XXXVII (December, 1923), 250.

"No state can make or enforce any laws which shall, upon proper proceedings, be deemed unreasonable by a majority of the Supreme Court ... the rule of reason alone governs. What are fair profits, what are excessive taxes, what are proper health laws, what is confiscation and what discrimination; — these are questions which cannot be answered in the abstract, nor can they be adequately defined by precedents." Collins, The Fourteenth Amendment and the States, p. 109.

45. "All nineteenth century theories of judicial decision," says Dean Pound, "in one way or another grow out of the natural law thinking of the seventeenth and eighteenth centuries." "The Theory of Judicial Decision," Harv. Law Rev., XXXVI (May, 1923), 802.

46. Cf. Pound, The Spirit of the Common Law, p. 37. "With us the basis of all deduction is the classical common law — the English decisions and authorities of the seventeenth, eighteenth and first half of the nineteenth centuries. Our jurists have made of this a very Naturrecht. They have asked us to test all new situations and new doctrines by it.... More than this, through the power of courts over unconstitutional legislation and the doctrine that our bills of right are declaratory, courts have forced it upon modern social legislation." Pound, in Harv. Law Rev., XXIV (June, 1911), 601.

47. M. R. Cohen in Introduction to Pierre de Tourtoulon, Philosophy in the Development of Law, trans. by Martha Read, Modern Legal Philosophy Series, XIII (New York, 1922), 24.

48. "The influence of the conception of natural rights on legal development in the United States has been to support the position of a reactionary, dominant, propertied class." James Mickel Williams, The Foundations of Social Science (New York, 1920), p. 245.

49. John H. Clarke, "Judicial Power to Declare Legislation Unconstitutional," American Bar Association Journal, IX (November, 1923), 691.

50. For the claim that logic alone guides judges in reviewing the validity of legislative acts see opinion of Justice White, that "no instance is afforded from the foundation of the government where an act, which was within a power conferred, was declared to be repugnant to the Constitution, because it appeared to the judicial mind that the particular exertion of constitutional power was either unwise or unjust." McCray v. United States, 195 U. S. 27, 54 (1904). "August as are the functions of the Supreme Court," says John W. Davis, "surely they do not go one step beyond the administration of justice to individual litigants." "Present Day Problems," Amer. Bar Assoc. Jour., IX (September, 1923), 557.

51. Cf. Felix Frankfurter, "A Note on Advisory Opinions," Harv. Law Rev., XXXVII (June, 1924), 1002, and especially list of cases turning on facts; also Henry Wolf Biklé, "Judicial Determination of Questions of Fact affecting Constitutional Validity of Legislative Action," Harv. Law Rev., XXXVIII (November, 1924), 6.

52. "Logical Method and Law," Cornell Law Quarterly, X (December, 1924), 26.

53. A. V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (New York, 1905), pp. 361, 362.

54. Lord Justice Scrutton, "The Work of the Commercial Courts," Cambridge Law Journal, I, 6, 8. For the opinion that the House of Lords as a supreme judicial body is "in entire good faith, the unconscious servant of a single class in the community," see Harold J. Laski, "Judicial Review of Social Policy in England," Harv. Law Rev., XXXIX (May, 1926), 848.

55. Powell, Harv. Law Rev., XXXVII, p. 546. Combating the doctrine that the judges should be made the ultimate arbiters of all constitutional questions, Jefferson wrote: "This is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power and the privilege of their corps. Their maxim is 'boni judicis est ampliare jurisdictionem,' and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control." To William Charles Jarvis, Sept. 28, 1820; also to William Johnson, June 12, 1823.

56. Cf. 10th Cong., 1st Sess. (Nov. 13, 1807), Jefferson also observed: "In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution."

57. A. V. Dicey, Introduction to the Study of the Law of the Constitution (8th ed., London, 1915), p. 198.

58. Ibid., Introduction, pp. xxxvi ff.

59. "The American democracy in political and social matters is made to accord strictly with extreme conservatism and considers its foundation at the same time as an eternal divine moral and legal order." Ernst Troeltsch, Naturrecht und Humanitat in der Weltpolitik (Berlin, 1923), p. 6.

60. Thayer's Marshall, pp. 103, 110, and Legal Essays (Boston, 1908), pp. 39-41.

61. Ibid., p. 64; Legal Essays, pp. 11-12. For weaknesses of Marshall's reasoning in the Marbury Case, consult Thayer, Legal Essays, p. 15.

62. Speaking of the theories which justices have read into the Fourteenth Amendment, Dean Pound says, "A theory that legislators and courts are but the mouthpieces through which the dominant class makes its will effective, a theory of law in terms of the self-interest of the socially and economically dominant class, a theory that the jurist may do no more than observe and record the phenomena of the transitional stage of hopeless conflict while one class is gaming the upper hand at the expense of its predecessors in the economic and social order — such a theory is more threatening to the general security than any of the recent modifications and adaptations of the atomistic individualism of the eighteenth century of which recent legislation has been so fearful." Harv. Law Rev., XXXVI (May, 1923), 824. See also G. C. Henderson, The Position of Foreign Corporations in American Constitutional Law (Cambridge, 1918), p. 163.

63. A. M. Kales, op. cit., p. 526.

Referring to the decisions of the Supreme Court in the Hitchman and Coppage Cases, Professor John R. Commons says, "It is the judge who believes in the law and custom of business and not the judge who believes in the law and custom of labor, that decides." And, he notes, it is not logic but beliefs which are the determining factors in such decisions. Op. cit., p. 298.

64. Cf. Pound, "The Theory of Judicial Decision," Harv. Law Rev., XXXVI (May, 1923), 808, 824.

65. Airway Electric Appliance Corporation v. Day, 266 U. S. 71.

66. Missouri Pacific R. R. v. Road Dist., 266 U. S. 187; Silberschein v. United States, 266 U. S. 221.

67. Bass, Ratcliff and Gretton Ltd. v. State Tax Commission, 266 U. S. 271.

68. Kansas City Southern R. R. et al. v. Road Improvement Dist., 266 U. S. 379.

69. Michigan Public Utilities Commission v. Duke, 266 U. S. 570.

70. Fort Smith Light and Traction Co. v. Bourland, 267 U. S. 330.

71. Work v. Rives, 267 U. S. 175.

72. Ohio Utility Co. v. Public Utilities Commission, 267 U. S. 359.

73. Carroll v. United States, 267 U. S. 132.

74. Barclay and Co. v. Edwards, 267 U. S. 442.

75. Yeiser v. Bysart, 267 U. S. 540.

76. Stebbins and Hurley v. Riley, 268 U. S. 137.

77. Linder v. United States, 268 U. S. 5.

78. Yee Hem v. United States, 268 U. S. 178.

79. North Laramie Land Co. v. Hoffman, 268 U. S. 276.

80. Banton v. Belt Line Ry., 268 U. S. 413.

81. Pierce v. Society of the Sisters, 268 U. S. 510.

82. Maple Flooring Manufacturers Association v. United States, 268 U. S. 563.

83. Gitlow v. People of New York, 268 U. S. 652.

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