THE FOURTEENTH AMENDMENT AND NATURAL LAW THEORIES
THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION AND DUE
PROCESS OF LAW
PRIOR to the adoption of the
Fourteenth Amendment, which has been styled an "American Magna
Carta," due process of law was of little significance in American
constitutional law. For about three quarters of a century after the
introduction of the term into the first state constitutions, it was seldom used
as a basis for the protection of either personal or property rights. Few
legislative enactments were held invalid as contravening due process of law,
and some of the most important efforts to define the phrase were made in dicta
in cases upholding the validity of the laws attacked. On the whole, the
interpretation of the phrase "due process of law" or "the law of
the land" prior to 1870 had placed on legislatures few restrictions which
were not merely procedural in character, and had merely suggested ideas or
principles which under a different environment were soon to be received
Though the Fifth Amendment provided that "no person shall ... be
deprived of life, liberty, or property, without due process of law," the
federal courts were seldom called on to protect either personal privileges or
property rights under this provision. And when such an attempt was made it
usually resulted in failure for the litigant.
When the Fourteenth Amendment was adopted in 1868, with the proviso that no
state shall "deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws," a serious problem in constitutional
interpretation arose. While the amendment was in the process of formulation in
Congress there were some among the radical Republican group who wanted to
change the whole plan of the federal government, as provided in the
Constitution, and to place a supervisory authority over all state powers in the
hands of the national authorities. The original draft of the amendment was
worded so as to accomplish this object. John A. Bingham, Member of the House of
Representatives, who is credited with the drafting of the original due process
of law clause, said it was his object to render the principles and restrictions
of the Bill of Rights of the federal Constitution applicable to the acts of the
states. Conservative Republicans opposed such a change, and the original
resolution was dropped and one couched in vague and general terms which proved
acceptable to both the radical and the conservative wings of the Republican
party, was submitted to the states for adoption. There was considerable fear that section one
of the amendment contained the germ of a policy which would mean ultimately a
complete change in the relations between the nation and the states. On this
ground some Republicans and nearly all of the Democrats opposed the adoption of
the amendment. By counting the
reconstructed states, forcibly put under Republican control, the amendment was
finally declared adopted with its meaning and intent very much in doubt. In the
controversies over the adoption very little consideration was given to the
significance of section one, the only portion which has had any noticeable
effect upon the relations of the federal and the state governments.
1. Period of Restricted Interpretation. Congress immediately set
about through enforcement legislation to protect negro voters, to re-enact the
Civil Rights Bill, and to place all violations of these measures under federal
control. But when an issue involving the interpretation of the amendment came
before the Supreme Court, it was decided by a close vote to reject the radical
view favoring a complete change in the federal system, and the court adopted
the conservative opinion of both Democrats and Republicans — that the
amendment was designed primarily to protect the negro race in their newly
acquired rights and privileges.
With this exception the states, it was thought, were left as free to regulate
their affairs as they were before the Civil War. Thus interpreted, "due
process of law" and the "equal protection of the laws" would
have had little effect on the normal field of state functions. But four members
of the court dissented, and Justice Field in his dissent expressed the view
that it was the intention of the Fourteenth Amendment to "protect the
citizens of the United States against the deprivation of their common rights by
state legislation." Here was a
suggestion favorable to special interests desiring protection, and counsel were
not slow to urge upon the court that the new amendments were intended to place
the whole jurisprudence of the country under the protection of the Supreme
Court. The majority of the
justices, however, saw no reason for taking such a significant step, and chose
rather to adhere to the time-honored interpretation of due process of law. The
effect of this and similar decisions was to leave relatively little power to
enforce the amendment in the hands of Congress, and to transfer its definition
and application primarily to the courts. And for ten years the federal courts
consistently discouraged litigation under the amendment — so much so that
only nine cases were considered in a decade. This attitude may have been due in
part to the fear that Congress, which had overridden both the executive and the
courts in carrying out its reconstruction policies, would unduly interfere with
the powers of the states. From 1877 to 1885 twenty-six additional cases were
adjudicated under this amendment, making a total of thirty-five cases in
sixteen years. Considering the fact that a considerable number of these cases
were either unimportant or trivial, it seemed that the adoption of the
Fourteenth Amendment had affected but slightly the powers of the states as they
existed prior to the Civil War.
Justice Miller thought that the just compensation principle of the Fifth
Amendment was not comprehended under the Fourteenth Amendment. It seemed to him
not a little remarkable, that while this provision has been in
the Constitution of the United States, as a restraint upon the authority of the
federal government, for nearly a century, and while, during all that time, the
manner in which the powers of that government have been exercised have been
watched with jealousy, and subjected to the most rigid criticism in all its
branches, this special limitation upon its powers has rarely been invoked in
the judicial forum or the more enlarged theater of public discussion. But while
it has been a part of the Constitution as a restraint upon the powers of the
states, only a very few years, the docket of this court is crowded with cases
in which we are asked to hold that state courts and state legislatures have
deprived their own citizens of life, liberty or property, without due process
of law. There is here abundant evidence that there exists some strange
misconception of this provision as found in the Fourteenth Amendment. In fact,
it would seem, from the character of many of the cases before us, and the
arguments made in them, that the clause under consideration is looked upon as a
means of bringing to the attention or the decision of this court the abstract
opinion of every unsuccessful litigant in the state courts, or jury of the
decision against him, and of the merits of the legislation upon which such
decisions may be founded.
When an attempt was made to secure protection under the due process clause
from legislative regulation of private business the court again refused to
accept the extended application of due process of law.
When the argument was presented that the owner of property is entitled to a
reasonable compensation for its use, even though it be clothed with a public
interest, and that what is reasonable is a judicial and not a legislative
question, the answer was given by the court that the practice has been
That this power might be abused, it was admitted, but for protection against
abuses by legislatures, the court replied, "the people must resort to the
polls, not to the courts."
The controlling fact was held to be the power to regulate at all. If that
existed the right to establish the maximum charge as one of the means of
regulation was implied. In short, the issue was regarded as a political
question, and was referred to the political departments of the government. A
dissenting opinion by Justices Field and Strong emphasized the importance of
judicial determination of questions of this nature. The majority opinion was
condemned as "subversive of the rights of private property, heretofore
believed to be protected by constitutional guarantees against legislative
Thus far the federal courts had refused to limit the power of taxation by an
implied public purpose doctrine or by the due process of law clause, to
restrict the legislative regulation of private callings, even to the extent of
permitting the creation of an exclusive monopoly, or to prevent the fixing,
without judicial recourse, of the maximum charge for the use of property
affected with a public interest.
2. Economic and Political Pressure brings about a Change in Supreme Court
Decisions. But the conservative policies which had grown into favor and had
met with judicial approval in the states, were reflected in a reversal of the
position of the Supreme Court, which gradually made the minority views in the
Slaughter-House and the Granger Cases the majority opinion of the
court. The persistent appeal to the court by counsel, representing interests
desiring protection under the Fourteenth Amendment and under other clauses of
the Constitution, ultimately had the desired result. Some marked changes in economic and social
conditions, and political developments arising therefrom, prepared the way for
a change of opinion on the meaning of the vague phrases of the Fourteenth
The Civil War brought on something in the nature of an industrial revolution
in the United States. When foreign intercourse was almost entirely cut off, the
growth of domestic industries was greatly increased. The movement once begun,
and encouraged by a high protective tariff, a phenomenal growth of manufactures
took place from 1870 to 1900. The opening up of extensive areas in the West,
begun before the issues of the Civil War overshadowed everything else, was
accelerated by the Homestead Act and by the building of transcontinental
railways through lavish grants of land by state and federal governments, and
through generous financial aid in other ways. The wave of commercial expansion
that followed the war, augmented by high protective duties, offered rare
opportunities for masters of finance and captains of industry, which were taken
advantage of in the consolidation of the railways into great systems, and often
in wrecking their finances by outrageous manipulations, and in the beginnings
of concentration and integration of small units in the field of manufactures.
As the capitalists grew in number, and their interests increased in importance,
they sought not only to control legislative assemblies in order to secure
special favors but also, in certain other respects, to curtail their
At the same time that such a marked commercial expansion was under way and
the process of consolidation and integration was going on, certain movements
originating mostly in the West and the South aimed to check this development,
and to bring many of the business practices involved under regulation by law.
The early eighties saw "everywhere increasing inclination to translate
social yearnings into statutes that interfered with the also fast-increasing
class who wished to be let alone because they were well able to take care of
themselves under a static common law." The Granger Movement, populism, and the
beginning of the regulation of industry on behalf of labor, gave what seemed to
many ominous warnings of a dangerous trend toward state socialism. Thus there
arose a clearly drawn controversy between the leaders of industry, commerce,
and finance, and the forces favoring public regulation and control.
The rush of immigration to the West and the commercial enterprises involved
in opening up large sections of new land, gave to the frontier and to the
philosophy accompanying frontier conditions a dominance in American public
life. Large corporations and industrial enterprises, amply able to take care of
themselves, began to advocate a policy of hands off by the government, and this
policy accorded well with the interests of those who were pushing the frontier
farther to the West. A combination of conservative leaders in both leading
parties was organized to contest all forms of regulation of business interests
by the public. As Hamilton and Madison thought when the federal Constitution
was being formed, that it was necessary to take steps to check the activities
of "overbearing majorities," so Judge Dillon expressed the opinion of
a dominant class in the latter part of the nineteenth century when he said,
"We cannot fail to see that what is now to be feared and guarded against
is the despotism of the many — of the majority." A solid front faced the seemingly radical
regulative tendencies growing in the South and the West. The line was clearly
drawn between the conservatives, combined now with the augmented followers of
the laissez faire policy, and the radical leaders of the movement
favoring public regulation of public service enterprises and legislative
control of industrial conditions, regarded as harmful both to the laborers and
to the general public. Justice Holmes had in mind this controversy when he
referred to conditions which
led people who no longer hope to control the legislatures to
look to the courts as expounders of the Constitutions, and that in some courts
new principles have been discovered outside the bodies of those instruments,
which may be generalized into acceptance of the economic doctrines which
prevailed about fifty years ago, and a wholesale prohibition of what a tribunal
of lawyers does not think about right. I cannot but believe that if the
training of lawyers led them habitually to consider more definitely and
explicitly the social advantages on which the rule they lay down must be
justified, they sometimes would hesitate where now they are confident, and see
that really they were taking sides upon debatable and often burning
It was the drawing of a well-defined issue between conservative and, at
times, reactionary forces which now opposed public regulation of business
interests, public and private, and the liberal or radical leaders who were
committed to regulative and restrictive policies that finally brought pressure
to bear on the Supreme Court sufficient to secure a reversal of its
interpretation of the Fourteenth Amendment.
Speaking of the growth of litigation under due process of law as the product
of two generations, Justice Hough remarks:
"To me the reasons seem to have no very close relation to
the law or its professors; but to rest on the social and material changes which
have within the years indicated transformed this country from an agricultural
to a manufacturing community, and its population so largely from rural to
Reference was made previously to an apparent change of position when Justice
Miller defended the public purpose criterion in taxation as the basis for
well-defined implied limits on state legislatures. The conclusion was reached
that there can be no lawful tax which is not levied for a public purpose, and
that the determination of what is a public purpose is ultimately for the
courts. That the majority of the
court was changing the grounds on which judicial review of legislation was
formerly exercised was asserted in a dissent by Justice Clifford. The Supreme Court, however, was not as yet
inclined to accept, as a general limitation applicable to the taxing power of
the federal and state governments, the public purpose doctrine of Justices
Cooley and Dillon with all of its implications.
3. Reversal of the Former Opinions on the Meaning of Due Process of
Law. A change of opinion relative to the meaning of the due process of law
clause of the Fourteenth Amendment, which has extended its scope into many
phases of federal and state law, was indicated primarily in cases relating to
the state regulation of public utilities, in those involving the concept of the
liberty of contract or liberty of calling, and in the interpretation of due
process of law into a broad rule of reason to test the validity of many
controversial state enactments.
(a) Due Process of Law applied to the Procedure in the Regulation of
Public Utilities. Signs of the changing attitude of the justices of the
Supreme Court relative to the legislative control over public utilities
appeared when Chief Justice Waite in upholding the right of legislatures to
regulate railway charges said:
It is not to be inferred that this power of limitation or
regulation by the state is itself without limit. This power to regulate is not
the power to destroy, and limitation is not the equivalent of confiscation ...
the state cannot ... do that which in law amounts to a taking of private
property for public use without just compensation, or without due process of
Justice Gray, who joined with the majority in the Munn Case, had
changed his opinion in a decade sufficiently to approve Waite's dictum "as
a general rule of law," but doubted whether the court would, under any
circumstances, have the power to hold a state rate act void on the ground that
it was unreasonable. And as late
as 1892 the court again expressed doubt whether it could hold that a rate fixed
by the legislature was unreasonable.
But the doubt and uncertainty prevailing for some time was in a large part
removed when in the epoch-making Minnesota Rate Case the Supreme Court
held that rate regulation, although primarily legislative in character, was
subject to judicial review under the due process of law clause. Declaring
invalid the Minnesota Act of 1887, providing that the rates established by a
railroad and warehouse commission shall be final and conclusive as to what are
equal and reasonable charges, and that there could be no judicial inquiry on
the question of reasonableness, Justice Blatchford, extending Chief Justice
Waite's dictum, said:
The question of the reasonableness of a rate of charge for
transportation by a railroad company, involving as it does the element of
reasonableness both as regards the company and as regards the public, is
eminently a question for judicial investigation, requiring due process of law
for its determination.
Justice Bradley, with whom concurred Justices Gray and Lamar, asserted that
the majority opinion of the court practically overruled Munn v.
Illinois and other railroad cases decided by the court, and commented as
But it is said that all charges should be reasonable, and that
none but reasonable charges should be exacted; and it is urged that what is a
reasonable charge is a judicial question. On the contrary, it is preeminently a
legislative one, involving considerations of policy as well as of remuneration;
and is usually determined by the legislature by fixing a maximum of charges....
If this maximum is not exceeded, the courts cannot interfere.... Thus, the
legislature either fixes the charges at rates which it deems reasonable; or
merely declares that they shall be reasonable; and it is only in the latter
case, where reasonableness is left open, that the courts have jurisdiction of
A decision which made the courts the final arbiters in the regulation of
rates, Justice Bradley thought, was an assumption of an authority on the part
of the judiciary which it had no right to make. To the repeated arguments that
such a power in the hands of legislatures was dangerous and that implied limits
on legislatures were essential to preserve and protect property rights, Justice
Bradley replied, defending the principles of democratic control of public
It may be that our legislatures are invested with too much
power, open, as they are, to influences so dangerous to the interests of
individuals, corporations and society. But such is the constitution of our
republican form of government; and we are bound to abide by it until it can be
corrected in a legitimate way. If our legislatures become too arbitrary in the
exercise of their powers, the people always have a remedy in their hands; they
may at any time restrain them by constitutional limitations. But so long as
they remain invested with the powers, that ordinarily belong to the legislative
branch of government they are entitled to exercise those powers, amongst which,
in my judgment, is that of the regulation of railroads and other public means
of intercommunication, and the burdens and charges which those who own them are
authorized to impose upon the public.
The original purpose of the due process of law clause was to protect the
weak and the oppressed but when the Supreme Court decided that corporations
were entitled to the protection of the Fourteenth Amendment and that foreign
corporations could not be deprived of their property arbitrarily, the way was opened for organizations of
capital to contest before the Supreme Court such laws as they regarded unwise
or detrimental to their interests. Comparatively few cases have arisen under
the amendment to protect personal or individual rights and instead it has
become the bulwark for the protection of the privileges and interests of large
corporations. Where states reserved in their constitutions the right of the
legislature to alter, amend, or repeal at will corporate franchises, the
Supreme Court intervened to insist that the power of alteration and amendment
is not without limit. The alterations must be reasonable and they must not take
the property of the company without just compensation. Such a holding has amounted to the practical
proposition that legislatures may amend corporate charters to the advantage of
the incorporators but not to their detriment.
As a result of this change in the attitude of the court, and the extension
of due process of law as a standard applicable to rate regulation and the
reasonableness of measures for public control, a large field of public powers,
namely, the manifold regulations of state legislatures and administrative
commissions, in their effort to control public utilities, has become subject to
the continuous critical scrutiny of the courts, often primarily concerned with preserving
the property rights of the utilities.
Judicial review by this extension of the application of due process of law
has entered a new field, and has placed numerous restrictions and obstructions
in the way of effective regulation of public utilities by states and other
local bodies. Such review manifestly was not inherent in any constitutional
provision or a necessary concomitant of constitutional interpretation as first
understood and applied in state and federal governments. It came as a result of
the fear of democratic control and of popular participation in the regulation
of public utilities and of the belief that private property could be made safe
only with extensive limitations on legislatures rendered effective by courts
through judicial review of legislative and administrative findings.
While the court was gradually changing its position on the review of
legislative and administrative procedure in rate-making and in the regulative
power exercised by states over corporations and public utilities, members of
the court imbued with the frontier philosophy of individualism, or sympathetic
with conservative doctrines were establishing a standard by construction to
pass on the fairness or expediency of labor legislation. Justice Field had
suggested in the Slaughter-House Cases that in his opinion the
Fourteenth Amendment was intended to protect all citizens of the United States
in their "common rights," and it was in the definition of these
"common rights" that the theories of the Declaration of Independence
and of the eighteenth-century natural rights were again applied.
(b) Due Process of Law and Liberty of Contract. As an advocate of the
natural rights ideas of the revolutionary period Justice Field became the
mouthpiece for the judicial protection of the fundamental rights which belong
to man "as a free man and a free citizen." At the first available opportunities Justice
Field gave a careful exposition of his views as to the nature of these
fundamental rights, as follows:
As in our intercourse with our fellow-men certain principles of
morality are assumed to exist, without which society would be impossible, so
certain inherent rights lie at the foundation of all action, and upon a
recognition of them alone can free institutions be maintained. These inherent
rights have never been more happily expressed than in the Declaration of
Independence, that new evangel of liberty to the people; "We hold these
truths to be self-evident" — that is, so plain that their truth is
recognized upon their mere statement — "that all men are
endowed" — not by edicts of Emperors, or decrees of Parliament, or
acts of Congress, but "by their Creator with certain inalienable
rights" — that is, rights which cannot be bartered away or given
away, or taken away except in punishment of crime — "and that among
these, are life, liberty, and the pursuit of happiness, and to secure
these" — not grant them, but secure them — "governments are
instituted among men, deriving their just powers from the consent of the
Among these inalienable rights, as proclaimed in that great document, is the
right of men to pursue their happiness, by which is meant the right to pursue
any lawful business or vocation, in any manner not inconsistent with the equal
rights of others, which may increase their prosperity or develop their
faculties, so as to give to them their highest enjoyment.
The common business and callings of life, the ordinary trades and pursuits,
which are innocuous in themselves, and have been followed in all communities
from time immemorial, must, therefore, be free in this country to all alike
upon the same conditions. The right to pursue them, without let or hindrance,
except that which is applied to all persons of the same age, sex, and
condition, is a distinguishing privilege of citizens of the United States, and
an essential element of that freedom which they claim as their birthright.
It has been well said that "the property which every man has in his own
labor, as it is the original foundation of all other property, so it is the
most sacred and inviolable. The patrimony of the poor man lies in the strength
and dexterity of his own hand, and to hinder his employing his strength and
dexterity in what manner he thinks proper, without injury to his neighbor, is a
plain violation of this most sacred property. It is a manifest encroachment
upon the just liberty both of the workman and of those who might be disposed to
employ him. As it hinders the one from working at what he thinks proper, so it
hinders the others from employing whom they think proper." Adam Smith's
Wealth of Nations, Bk. I, chap. 10.
The Fourteenth Amendment, in declaring that no state "shall
deprive any person of life, liberty, or property without due process of law,
nor deny to any person within its jurisdiction the equal protection of the
laws," undoubtedly intended not only that there should be no arbitrary
deprivation of life or liberty, or arbitrary spoliation of property, but that
equal protection and security should be given to all under like circumstances
in the enjoyment of their personal and civil rights; that all persons should be
equally entitled to pursue their happiness and acquire and enjoy property; that
they should have like access to the courts of the country for the protection of
their persons and property, the prevention and redress of wrongs, and the
enforcement of contracts; that no impediment should be interposed to the
pursuits of any one except as applied to the same pursuits by others under like
circumstances; that no greater burdens should be laid upon one than are laid
upon others in the same calling and condition, and that in the administration
of criminal justice no different or higher punishment should be imposed upon
one than such as is prescribed to all for like offenses.
These dicta, along with some similar remarks of other justices, introduced
into American law the concept of liberty of contract and of calling. This
concept, which is one of the by-products of natural law thinking, had its
origin in mediaeval times and was accepted in France and in England as one of
the principles of the economic policy of laissez faire. The principle
was accepted and applied by the state courts to check the increased efforts of
legislatures to regulate wage contracts and labor conditions.
It was merely necessary to translate these dicta into concrete terms and to
use them in rendering the judgments of the Supreme Court. This was done by Justice Peckham when he
asserted that, "in the privilege of pursuing an ordinary calling or trade,
and of acquiring, holding and selling property must be embraced the right to
make all proper contracts in relation thereto," and with extensions beyond Field's broad
terms, by Justices Harlan and
Thus, beginning in a series of dicta, a doctrine of liberty of contract was
developed as a phase of the Fourteenth Amendment and was gradually accepted and
interpreted by the majority of the Supreme Court to embody the natural and
inalienable rights doctrine of the Declaration of Independence. The terms of
the Fifth and Fourteenth Amendments were thereby given an interpretation which
placed new limits on legislative powers for the state and federal
governments. Advocates of the
"new liberties" soon formulated what they called a fundamental
principle, namely, that the term "liberty" as used in the Declaration
of Independence and as extracted from the general language "due process of
law" in written constitutions meant not only for the individual freedom
from servitude and restraint, but also freedom to use his powers and faculties,
and to pursue such vocation or calling as he may choose, subject only to the
restraints necessary to protect the common welfare.
The adoption by the courts of the principle of judicial review of public
utility regulations as a requirement for the due process clause of the
Fourteenth Amendment, combined with an incorporation therewith of a
considerable part of Chancellor Kent's vested rights doctrine, which the judiciary were specially charged
to apply, and the interpretation of the amendment to include the natural rights
theories of the Declaration of Independence went a long way toward construing
the Fourteenth Amendment as radical Republican leaders had desired, so as to
exercise national supervision over the control of civil rights — an
interpretation which the court itself had repeatedly rejected. But with all of these ideas combined in the
due process clause a mere beginning was made to develop in the constitutional
law of the United States a formidable Naturrecht or natural law, which
was to be fostered into a new lease of life by combining the phrases "due
process of law" and the "equal protection of the laws." These
have been united to assure the broadest kind of protection for the fundamental
rights of the individual and for the assurance that there can be no arbitrary
interference with personal liberty. Thereby a theory of the protection of human
rights glorified by the common law courts was consecrated into a constitutional
doctrine and characterized as democratic.
1. "Our constitutional liberty during the last
thirty years, with comparatively few exceptions, may be said to be but little
more than a commentary on the Fourteenth Amendment, which indeed nationalized
the whole sphere of civil liberty. This great amendment to the Federal
Constitution has done more than any other cause to protect our civil rights
from invasion, to strengthen the bonds of the Union, to make us truly a nation,
and to assure the perpetuity of our institutions" William D. Guthrie,
Lectures on the Fourteenth Article of Amendment to the Constitution of the
United States, (Boston, 1898), pp. 1, 2.
2. Cf. Murray's Lessee v. Hoboken Land and
Improvement Co., 18 How. 272 (1855). Due process the court held to be a
restraint on the legislative as well as the executive and judicial powers of
government and a process of law which is not otherwise forbidden, and which can
be shown to have had the sanction of settled usage both in England and in this
country. Cf. also Hurtado v. California, 110 U. S. 516, 528 (1883), and
Holden v. Hardy, 169 U. S. 366, 390 (1898). For incidental reference to
the Fourteenth Amendment, see United States v. Harris, 106 U. S. 629
(1883); see also Yick Wo v. Hopkins, 118 U. S. 356. Cases in which
federal acts have been held void as violating due process of law are: Adair
v. U. S., 208 U. S. 161 (1908); United States v. Cohen Grocery Co
, 255 U. S. 81 (1921); Adkins v. Children's Hospital, 261 U. S. 525
(1923); Untermeyer v. Anderson, 276 U. S. 440 (1928).
3. Horace E. Flack, The Adoption of the Fourteenth
Amendment, chaps. 1 and 2. Dr. Flack concludes that Congress had the
following objects in view in submitting to the states the first section of the
1. To make the Bill of Rights (the first eight amendments)
binding upon, or applicable to, the states.
2. To give validity to the Civil Rights Bill.
3. To declare who were citizens of the United States. See pp. 92 ff. It must
not be forgotten, however, that it was a Congress dominated by the bitter war
spirit and led by the radical Reconstruction leaders of the Republican party
which was responsible for the amendment, and, that a large part of the
legislation enacted and of the policies fostered by these leaders was
repudiated when something approaching normal political conditions was restored.
4. Cf. B. B. Kendrick, The Journal of the Joint
Committee of Fifteen on Reconstruction, 39th Congress, 1865-1867, Columbia
University Studies in History, Economics and Public Law, vol. LXII. "The
line of Democratic hostility in the nation and the states was absolutely
unbroken" James G. Blaine, Twenty Years of Congress, pp. 308-310.
5. Flack, op. cit., p. 208. "The
Fourteenth [Amendment] was a straight party measure, due to the distrust of the
states solely in respect of their possible treatment of the negro. The
sufficient proof of party spirit is that in all the legislatures of all the
states exactly one Democrat voted for it." Charles M. Hough, "Due
Process of Law — Today," Harvard Law Review, XXXII (January,
6. The Slaughter-House Cases, 16 Wall. 36 (1872). See
Edward S. Corwin "The Supreme Court and the Fourteenth Amendment,"
Michigan Law Review, VII (June, 1909), 643.
7. 16 Wall. 89.
8. Murdock v. Memphis, 20 Wall. 590, 599
9. See United States v. Cruikshank, 92 U. S.
542 (1875). But Chief Justice Waite threw out the suggestion that the
Fourteenth Amendment "furnishes an additional guaranty against any
encroachment by the states upon the fundamental rights which belong to every
citizen as a member of society." Ibid., 554.
10. Prior to 1883 "appeals to due process of law
in the federal courts were rare, and (barring the negro cases) never
successful, except on the procedural side." Pennoyer v. Neff, 95 U.
S. 714 (1877) is called a "monument" of the latter type of decision.
Cf. Hough, op. cit., p. 218.
11. Davidson v. New Orleans, 96 U. S. 97,
103-104 (1877). It was in this case in which Justice Miller, refusing to define
due process of law, said: "There is wisdom, we think, in the ascertaining
of the intent and application of such an important phrase in the federal
Constitution, by the gradual process of inclusion and exclusion, as the cases
presented shall require." Ibid., 104.
Referring to the above observation of Justice Miller in 1885, Justice Field
remarked that after the lapse of eight years, it may be repeated with an
expression of increased surprise at the continued misconception of the purpose
of this provision." Missouri Pacific Railway v. Humes, 115 U. S.
512, 520 (1885). For a change in the position of the court see opinion of
Justice Gray in Missouri Pacific Railway v. Nebraska, 164 U. S. 403, 417
(1896). A requirement that a company lease its property to a private party was
held to be a taking of property and a denial of due process of law. Chicago,
Burlington and Quincy Ry. Co. v. Chicago, 166 U. S. 226, 233, 241
(1896). Henceforth it was regarded as settled that a state might not under the
due process provision take private property for public use without just
12. Munn v. Illinois, 94 U. S. 113 (1876) and
the Granger Cases, 94 U. S. 155, 164, 179, 180. See Buck, The Granger
Movement, chaps. 4-6. For similar decisions approving the regulative power
of the states see Bradwell v. The State, 16 Wall. 130 (1872); Bartemeyer
v. Iowa, 18 Wall. 129 (1873); United States v. Cruikshank, 92 U.
S. 542 (1875); Hurtado v. California, 110 U. S. 516 (1883); Barbier 11.
Connolly, 113 U. S. 27 (1884); and Powell v. Pennsylvania, 127 U. S. 678
(1887). See, however, Justice Field's opinion on the broad implications of the
Fourteenth Amendment, 113 U. S. 31.
13. Munn v. Illinois, 94 U.S. 133, 134. At
common law, in the absence of legislation, a public utility was bound to charge
no more than a reasonable rate and in case of complaint it was for a court to
decide whether the rate was reasonable. But if Parliament fixed a schedule of
rates no court could inquire into the question of reasonableness. The remedy in
such case lay in an appeal to Parliament or to the voters, not to the courts.
Gerard C. Henderson, "Railway Valuation and the Courts," Harv. Law
Rev., XXXIII (May, 1920), 904.
14. 94 U.S. 134.
15. Ibid., 136. In Stone v. Wisconsin,
it was again maintained by the minority that the court's decision that a
corporation charter was subject to alterations or repeal by the state
legislature was wrong, and that it will "justify the legislature in fixing
the prices of all articles and the compensation for all services. It sanctions
intermeddling with all business and pursuits and property in the community,
leaving the use and enjoyment of property to be regulated according to the
discretion of the legislature." 94 U. S. 181, 186 (1876).
16. The decisions in the Granger Cases Judge
Hough remarks "seemed to put all complaints of corporate regulation of
service and charges out of court, if an appeal under the due-process clause was
ventured against a state; the still continuing dissents of Justice Field seemed
most unorthodox. The remarks in another judgment, that due process was usually
what the state ordained, seemed to clinch the matter." Harv. Law
Rev., XXXII, 226 and Walker v. Sauvinet, 92 U. S. 90 (1875).
17. See argument of Joseph H Choate in Pollock
v Farmers' Loan & Trust Co., 157 U S. 429, 532, 534 (1895): "I
believe there are private rights of property here to be protected; that we have
a right to come to this court and ask for this protection, and that this court
has a right, without asking leave of the attorney general or any counsel, to
hear our plea. The act of Congress which we are impugning before you is
communistic in its purpose and tendencies and is defended here upon principles
as communistic, socialistic — what shall I call them — populistic as
ever have been addressed to any political assembly in this world.... I have
thought that one of the fundamental objects of all civilized governments was
the preservation of the rights of private property. I have thought it was the
very keystone in the arch upon which all civilized government rests and that
this once abandoned, everything was at stake and in danger."
18. S. J. Buck, The Granger Movement
(Cambridge, 1913), pp. 13 ff.
19. Hough, op. cit., p. 227.
20. The Laws and Jurisprudence of England and
America, pp. 204-205.
21. Collected Legal Papers (New York, 1920), p.
184 and Harv. Law Rev., X (March, 1897), 456, 467.
22. "Conservative and liberal schools of
interpretation not only instantly appeared at bar, but in the court, and along
party lines, in a way not usually recognized." Hough, op. cit., p.
225. "The Granger legislation aroused bitter political passions and grave
fears among those who believed the welfare of the country depended upon the
security of property. In case after case, as it came before the Supreme Court,
the leaders of the bar appealed to the court not to leave the vast interests of
private stockholders at the mercy of radical state legislatures. To have
withstood this appeal would have been utterly inconsistent with the
individualistic spirit which pervaded American jurisprudence in the latter part
of the nineteenth century. Some method must be devised by which courts could
check the assaults of western legislatures upon established property
rights." Henderson, op. cit., p. 905. See also Hough, op.
cit., p. 227.
23. Hough, op. cit., p. 222.
24. Loan Association v. Topeka, 20 Wall. 655,
662, 663 (1874). See comment of Justice Miller in Davidson v. New
Orleans, "that because of the fact that the Loan Association Case
came to the federal courts because of the character of the parties, the
justices felt free to enforce general principles of constitutional law."
96 U. S. 97, 105 (1877).
When the contention was made that unjust and oppressive taxation by the
states should be prevented, the Supreme Court held that the Constitution was
not intended to furnish a corrective for every abuse of power which may be
committed by the state governments and could not afford relief between a state
and its citizens against taxation, however unjust, oppressive, or onerous.
Kirtland v. Hotchkiss, 100 U. S. 491, 498 (1879). But eleven years
later, speaking again through Justice Harlan, an unwise exercise of the power
of levying special assessments was held invalid on the general ground that
"the power of the legislature in these matters is not unlimited."
Norwood v. Baker, 172 U. S. 268, 278 (1898). For a modification of the
judgment in this case see French v. Barber Asphalt Pav. Co, 181 U. S.
324 (1901). Justices Harlan, White, and McKenna dissented.
25. "Courts cannot nullify an act of the state
legislature," said Justice Clifford, "on the vague ground that they
think it opposed to a general latent spirit supposed to pervade or underlie the
Constitution, where neither the terms nor the implications of the instrument
disclose any such restriction. Such a power is denied to the courts, because to
concede it would be to make the courts sovereign over both the Constitution and
the people, and convert the government into a judicial despotism.... Unwise
laws and such as are highly inexpedient and unjust are frequently passed by the
legislative bodies, but there is no power vested in a circuit court, nor in
this court to determine that any law passed by a state legislature is void if
it is not repugnant to their own constitution nor the Constitution of the
United States." 20 Wall. 669, 670.
26. Stone v. Farmers' Loan and Trust Co., 116
U. S. 307, 331 (1885). "It is now settled in this court," said the
Chief Justice, "that a state has power to limit the amount of charges by
railroad companies for the transportation of persons and property within its
own jurisdiction, unless restrained by some contract in the charter, or unless
what is done amounts to a regulation of foreign or interstate commerce."
Ibid., 325. Justices Harlan and Field dissented on the ground that the
state act was void in so far as it authorized a commission rather than a court
to determine finally the fair return on the value of a railroad. For a similar
suggestion see Spring Valley Water Works v. Schottler, 110 U. S. 347,
354 (1883). See opinion of Justice Harlan in Ruggles v. Illinois, 108 U.
S. 526, 535 (1883) for an effort to place the basis for the judicial review of
rate regulation on the contract clause and on the principles announced by Chief
Justice Marshall in the Dartmouth College Case. Using this decision as a
basis the railroads denied the right of the states or of the nation to regulate
them. Buck, The Granger Movement, p. 12.
27. Dow v. Beidleman, 125 U. S. 680, 686, 691
(1888). A state law in this case which fixed a maximum of three cents a mile
for a railway charge for carrying passengers was held not to deny these
corporations due process of law. Justice Gray, who joined the dissenters in
Chicago, Milwaukee and St. Paul Ry. Co. v. Minnesota, 134 U. S. 418
(1890), had shifted his position completely and was with the majority in Smyth
v. Ames, 169 U. S. 466 (1898).
28. Budd v. New York, 143 U. S. 517, 548
(1892); cf. Henderson, op. cit., pp. 904 ff.
29. Chicago, Milwaukee & St. Paul Ry. Co.
v. Minnesota, 134 U. S. 418, 458 (1889); through the opinions of Justice
Brewer in Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362, 397
(1894) and of Justice Harlan in Smyth v. Ames, 169 U. S. 466, 523 ff.
(1898), the change in position was completed. Under the Fourteenth Amendment it
has since been repeatedly held that "the rates must be sufficient to cover
reasonable operating expenses, plus a proper allowance for depreciation, plus a
fair return upon the value of the property; in short, there must be a
reasonable judgment having its basis in the proper consideration of all
relevant facts." R. L. Hale, "Rate Making and the Revision of the
Property Concept," Columbia Law Review XXII (March, 1922), 209.
For the opinions of Justice Brewer as Circuit Justice supporting an
extensive judicial review to protect the vested rights of utility corporations,
see Ames v. Union Pac. Ry. Co., 64 Fed. 163, 176 (1894) and National
Waterworks Co. v. Kansas City, 62 Fed. 853, 864 ff. (1804). See also
Justice Brewer's opinion holding invalid an act of Congress which abolished the
tolls charged by a private company on river traffic with an express provision
that the value of the franchise was not to be included in the condemnation
proceedings. A franchise, he said, "is a vested right. The state has power
to grant it. It may retake it, as it may other private property, for public
use, upon the payment of just compensation ... but it can no more take the
franchise which the state has given than it can any private property belonging
to the individual." Monongahela Navigation Co. v. United States,
148 U. S. 312, 341 (1893).
30. 134 U. S. 418, 462 (1889).
31. 134 U. S., 466.
32. Cf. Opinion of Justice Field in the Santa Clara
Railroad Tax Case, 9 Sawyer 165, 210, and of Justice Harlan in Santa Clara
County v. Southern Pacific Railroad Co., 118 U. S. 394 (1886); also
Justice Field in Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 188
(1888) and Minneapolis and St Louis Ry. Co. v. Beckwith, 129 U. S. 26,
28 (1889) Also Henderson, The Position of Foreign Corporations in American
Constitutional Law, chap. 9. That a foreign corporation was entitled to the
equal protection of the laws was held, also, in Pembina Mining Case,
infra, and Southern Railway Co. v. Greene, 216 U. S. 400, 412
Mr. Smith claims by rendering the inhibitions of the Fourteenth Amendment
applicable to corporations the Constitution of the United States was amended
"by the act of the judiciary alone." "We approach now," he
asserted, "a Revolution in our form of government accomplished by the
Supreme Court of the United States, so startling that it seems almost
incredible, and this Revolution was completed so silently that it has passed
almost unnoticed even by the careful historians of the Constitution and of the
Court." F. Dumont Smith, "Decisive Battles of Constitutional
Law," American Bar Association Journal, X (July, 1924), 505, and
The Constitution: Its Story and Battles (Los Angeles, 1926), p. 359.
33. Justice Swayne in Shields v. Ohio, 95 U. S.
319, 325 (1877).
34. For about thirty years "we have had every
species of state action productive of permanent loss to vested rights, or
limiting business liberty, put to the acid test of due process in the Supreme
Court." Hough, op. cit., p. 229. The decisions as to public utility
rates and regulations are regarded as "extraordinary in the extent of the
power which they place in the hands of the courts, and in the way in which they
tie the hands of the state legislatures in respect to subjects over which it
has always been considered they had absolute control ... the will of the people
in this, as in other respects, is expressed through the acts of their
representatives in the legislature. The opinion that the reasonableness of an
act is not a legislative but a judicial question substitutes the will of the
judges for the will of the people. Mr. Justice Bradley clearly foresaw this,
and deeply regretted the inevitable conflict between the courts and the
legislature." "The Judicial Record of Justice Bradley," William
Draper Lewis in The Miscellaneous Writings of Joseph P. Bradley (1902),
p. 25. "After the Chicago Case," says Justice Hough,
"legislators were arraigned before the bar and courts passed judgment not,
mark you, on the justice or wisdom, but on the reason, of what they had
done." Harv. Law Rev., XXXII, 228. For an analysis of the shifting
of Supreme Court justices in defining the terms "liberty" and
"property" from the standpoint of an economist, consult John R.
Commons, Legal Foundations of Capitalism (New York, 1924), especially
For review of the decisions of public utility commissions by the federal
courts in order to make sure that the decisions are "fair" and
"reasonable," consult John Dickinson, Administrative Justice and
the Supremacy of the Law in the United States (Cambridge, 1927), chap. 6.
35. Justice Field, in holding void a personal judgment
rendered by a state court in an action in personam against a
non-resident upon whom no personal service was made, defined due process of law
so as to include a portion of the concept of natural law: "They then mean
a course of legal proceedings according to those rules and principles which
have been established in our system of jurisprudence for the protection and
enforcement of private rights. To give such proceedings any validity, there
must be a tribunal competent by its constitution — that is, by the law of
its creation: to pass upon the subject-matter of the suit; and, if that
involves merely a determination of the personal liability of the defendant, he
must be brought within its protection by service of process within the state,
or his voluntary appearance." Pennoyer v. Neff, 95 U. S. 714, 733
(1877). For an approval of this interpretation, see opinion of Justice Gray in
Scott v. McNeal, 154 U. S. 34, 46 (1894).
36. See dissent in Slaughter-House Cases, 16 Wall. 36,
95 (1872); also opinion of Justice Brewer in Monongahela Navigation Co.
v. United States, 148 U. S. 312, 324 (1892). Justice Brewer regarded the
Declaration of Independence as the cornerstone of the federal Constitution. Cf.
address, Yale Law School, June, 1891, on "Protection to Private Property
from Public Attack."
37. Butchers' Union Co. v. Crescent City Co.,
111 U. S. 746, 756 (1883). This opinion, though it was not in accord with the
majority views of the Supreme Court, had an extensive influence on the state
courts — "It produced a reactionary line of decisions in New York on
liberty to pursue one's calling, and through these cases its echoes are still
ringing in the books." Pound, "Liberty of Contract," Yale Law
Journal, XVIII (May, 1909), 454, 470.
38. Barbier v. Connolly, 113 U. S. 27, 31
39. Cf. the recognition of liberty of contract as an
inalienable right of a citizen by Justice Brewer in Frisbie v. United
States, 157 U. S. 160, 165 (1894). The main guaranty of private rights against
unjust legislation is found in the due process clause, according to Justice
Andrews. As protected under this clause Justice Andrews thought "the right
to life includes the right of the individual to his body ... the right to
liberty, the right to exercise his faculties and to follow a lawful avocation
for the support of life; the right of property, the right to acquire power and
enjoy it in any way consistent with the equal rights of others and the just
exactions and demands of the state." Bertholf v. O'Reilly, 74 N. Y.
509, 515 (1878). See also Godcharles v. Wigeman, 113 Pa. St. 431, 6 Atl.
354 (1886); Millett v. People, 117 Ill. 294, 7 N. E. 631 (1886);
Braceville Coal Co. v. People, 147 Ill. 66, 35, N. E. 62 (1893); State
v. Loomis, 115 Mo. 307, 22 S. W. 350 (1892); State v. Norton, 5
Ohio N. P. R. 183 (1898); State v. Goodwill, 33 W. Va. 179, 10 S. E.
285, 863 (1889); in re House Bill, 21 Col. Rep. 27 (1895); Ritchie
v. People, 155 Ill. 98, 104 ff. (1895); and People v. Williams,
189 N. Y. 131 (1907).
For summary of decisions developing the doctrine of liberty of contract from
1890-99, cf. Pound, "Liberty of Contract," Yale Law Jour.,
XXIII, 472 ff. and G. G. Groat, "Economic Wage and Legal Wage,"
Ibid., XXXIII (March, 1924), 488, 494. The application of this concept
by the Supreme Court in invalidating a Minimum Wage Act for the District of
Columbia, in Adkins v. Children's Hospital, 261 U. S. 525 (1923), will
be considered later. According to Louis D. Brandeis, "Courts continued to
ignore newly arisen needs. They have applied complacently eighteenth century
conceptions of liberty of the individual and of the sacredness of private
property ... where statutes giving expression to the new social spirit were
clearly constitutional, judges, imbued with the relentless spirit of
individualism, often construed them away." Illinois Law Review, X
(February, 1916), 461, 464. Though some of the illiberal decisions relating to
labor contracts have been reversed, the liberty of contract doctrine still
stands as a bar to progressive measures in the field of labor legislation. Cf.
Ritchie v. Wayman, 244 Ill. 509 (1910) and People v. Charles
Schweinler Press, 214 N. Y. 395 (1915).
40. The concept of liberty of contract which was
formulated by Justice Field, and developed in a series of state decisions, was
thus defined by Justice Shope in the Braceville Coal Company case: "The
fundamental principle upon which liberty is based, in free and enlightened
government, is equality under the law of the land. It has accordingly been
everywhere held, that liberty, as that term is used in the constitution, means
not only freedom of the citizen from servitude and restraint, but, indeed, to
embrace the right of every man to be free in the use of his powers and
faculties, and to adopt and pursue such avocation or calling as he may choose,
subject only to the restraints necessary to secure the common welfare. 147 Ill.
66, 71 (1893). In most cases the language of Justice Field was used, with
variations to suit the circumstances of the case.
41. Allgeyer v. Louisiana, 165 U. S. 578, 591
42. "The right of a person to sell his labor upon
such terms as he deems proper is, in its essence, the same as the right of the
purchaser of labor to prescribe the conditions upon which he will accept such
labor from the person offering to sell it. So the right of the employé
to quit the service of the employer, for whatever reason, is the same as the
right of the employer, for whatever reason to dispense with the services of
such employé. It was the legal right of the defendant, Adair, —
however unwise such a course might have been, — to discharge Coppage
because of his being a member of a labor organization, as it was the legal
right of Coppage, if he saw fit to do so, — however unwise such a course
on his part might have been, — to quit the service in which he was
engaged, because the defendant employed some persons who were not members of a
labor organization In all such particulars the employer and the employe have
equality of right, and any legislation that disturbs that equality is an
arbitrary interference with the liberty of contract which no government can
legally justify in a free land," Adair v. United States, 208 U. S.
161, 174-175 (1908).
43. "Included in the right of personal liberty
and the right of private property — partaking of the nature of each —
is the right to make contracts for the acquisition of property. Chief among
such contracts is that of personal employment, by which labor and other
services are exchanged for money or other forms of property. If this right be
struck down or arbitrarily interfered with, there is a substantial impairment
of liberty in the long established constitutional sense. The right is as
essential to the laborer as to the capitalist, to the poor as to the rich; for
the vast majority of persons have no other honest way to begin to acquire
property, save by working for money." Coppage v. Kansas, 236 U. S.
1, 14 (1915).
44. Commenting on the fact that the due process
clauses of the Fifth and Fourteenth Amendments were rarely invoked as an aid to
protect private rights or referred to by justices prior to 1880, Mr. Willis
says: "Finally, with the case of Davidson v. New Orleans, 96 U. S.
97 (1878), and a long line of cases following it. Coke's doctrine of a supreme
fundamental law was merged in the doctrine of due process of law, and
legislation has since then been set aside because not due process of law but
not because in violation of some supreme fundamental law." Hugh Evander
Willis, "Due Process of Law under the United States Constitution,"
University of Pennsylvania Law Review, LXXIV (February, 1926), 331, 335.
45. In considering the application of a woman to
practice law, Justice Hackney claimed: "There is a law higher in this
country, and one better suited to the rights and liberties of the American
citizens, the natural right to gain a livelihood by intelligence, honesty and
industry in the arts, the sciences, the professions, or other vocations"
and the exclusion from such practice was held to interfere with inalienable
rights, citing Justice Field in Cummings v. Missouri, 4 Wallace 277,
321. In re Leach, 134 Ind 665, 668 (1893).
46. In 1896 and 1897 it was held that due process of
law was a limitation on the power of eminent domain. Fallbrook Irrigation
District v. Bradley, 164 U. S. 113 (1896); Chicago, Burlington and
Quincy Ry. Co. v. Chicago, 166 U. S. 226 (1896).
47. Instead of the judges having discovered new
meanings for due process of law, Dr. Mott claims they have merely appropriated
portions of a general residual meaning. Mott, Due Process of Law, p.
590. From this viewpoint an unappropriated portion of this concept will always
be available to keep legislators in the straight and narrow paths which judges
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