THE DEVELOPMENT OF A GENERAL RULE OF REASON TO DETERMINE THE
VALIDITY OF LEGISLATIVE ACTS
TO GIVE due process of law a
more effective scope as a criterion to measure the validity of new legislative
projects, the justices who were exponents of conservative principles and
laissez faire policies adopted the dicta of a few authorities on Magna
Carta and of several state justices that this phrase was designed to prevent
all governmental acts arbitrary in their nature and to preserve the fundamental
principles of a free republican government. The application of a rule of
reason or a rule of expediency as a primary standard to evaluate the
propriety of legislation was accomplished by making due process of law an
inhibition against arbitrary legislative or administrative acts, against any
interference with the fundamental rights of the individual, and against social
and economic legislation which was regarded unreasonable or discriminatory.
1. Arbitrary Legislative and Administrative Acts are Void. Locke is
credited with suggesting the idea that exercising governmental powers in an
arbitrary manner is unconstitutional. The suggestion of this idea, however, may be
traced to opinions rather common in ancient and mediaeval times. The claims
that certain clauses of Magna Carta were intended to check all forms of
arbitrary political authority, had
few supporters in England, as we have seen, but was repudiated by all parties
prior to the time that the American colonies set up new governments.
Early in the nineteenth century the belief had been expressed in the United
States that the law of the land provision was intended to remove arbitrary
power from every branch of the government. One justice declared that "the framers
of the constitution never dreamed of permitting the exercise of arbitrary power
in any department of government." The suggestion that due process of law was
intended to secure the individual from the arbitrary exercise of the powers of
government and that the security of
a citizen against arbitrary legislation rested upon the broader and more solid
ground of natural rights, and was not wholly dependent on those negatives upon
the legislative power contained in the constitution, gave an indication of possible future
interpretations of due process of law. But there were few occasions to consider
these comments or to apply them concretely until a similar doctrine was adopted by the
Supreme Court of the United States, and made a part of the due process clause
of the Fourteenth Amendment. Justices Bradley and Field were among the first to
suggest the notion that the Fourteenth Amendment was intended to be an
inhibition against arbitrary legislative and administrative acts. They pleaded for an extensive application of
the requirement of due process of law to all state acts, and suggested that if
such acts were "arbitrary, oppressive, and unjust," they might be
declared not to be in accord with due process of law.
When judges insisted that "under our institutions, arbitrary power over
another's lawful pursuits is not vested in any man nor in any
tribunal," due process of
law, applied in England only as a guard against executive usurpation, was
destined to become in the United States a bulwark against arbitrary
legislation. This new standard for
legislative acts was applied when it was determined that the validity of
statutes was not to be tested in the federal courts unless "they are
clearly inconsistent with some power granted to the general government or with
some right secured by that instrument or unless they are purely arbitrary in
The phrase "equal protection of the laws," though not in the Fifth
Amendment of the federal Constitution, and not, as a rule, in the state
constitutions, had been interpreted as a requirement for legislative and
executive acts by certain justices in state and federal courts prior to
1879. It was used without any
clear indication as to the purpose of the phrase in the draft of the Fourteenth
Amendment which was finally adopted, and the courts were loath to apply its
vague content to concrete cases until there was a determined effort on the part
of certain justices to incorporate the natural rights philosophy and the
doctrine of equality of the Declaration of Independence into the Fourteenth
Amendment, in order to condemn acts which the judges regarded as arbitrary or
unreasonable. The movement to
declare void acts judicially construed as arbitrary found the equal protection clause a
supplement to what would otherwise have been construed as a requirement of due
process of law. That due process would ultimately have been interpreted as
involving the equal protection principle is shown by the fact that statutes
regarded as conferring undue favors, class privileges, or discrimination are
seldom attacked on the equal protection clause alone, but also as a denial of
due process of law.
Due process of law and equal protection of the laws, then, combined were
being construed with wide enough scope to prevent all legislative and
administrative acts which the justices regarded as arbitrary and, like certain
other implied limits on legislatures, the equal protection principle was made
an essential part of the concept of due process of law. Hence acts which were not general in their
application to a particular class were held not to be in accord with the due
process and equal protection phrases of the Fourteenth Amendment.
"The due process clause requires," said Chief Justice Taft,
that every man shall have the protection of his day in court,
and the benefit of the general law, a law which hears before it condemns, which
proceeds not arbitrarily or capriciously but upon inquiry, and renders judgment
only after trial, so that every citizen shall hold his life, liberty, property
and immunities under the protection of the general rules which govern
And Justice Holmes believes that state acts interfering with liberty should
be held valid unless "a rational and fair man" would admit that they
necessarily infringe "fundamental principles as they have been understood
by the traditions of our people and our law." But where is the rational and fair man, what
are the fundamental principles, and how are the traditions of the people to be
discovered? Since when has the sole custody of these principles and traditions
been assigned to the judges?
The way in which judges made limitations applicable to legislative action is
admirably shown in one of Cooley's dicta:
The bills of rights in the American constitutions forbid that
parties shall be deprived of property except by the law of the land; but if the
prohibition had been omitted, a legislative enactment to pass one man's
property over to another would nevertheless be void. If the act proceeded upon
the assumption that such other person was justly entitled to the estate, and
therefore it was transferred, it would be void, because judicial in its nature;
and if it proceeded without reasons, it would be equally void, as neither
legislative nor judicial but a mere arbitrary fiat.
Those who defend the application of judicial standards for the justness or
fairness of legislative action claim that it is the only way that unjust
interference, not called for by the public needs, with private property and
personal liberty can be effectively prevented. But what are unjust
interferences with private property, and do these not depend upon changing
times and conditions which may be perceived by legislators as well as by
judges? And who shall determine what the public needs demand, the
representatives of the people or arbiters who have assumed the rôle of
2. Acts Contrary to Fundamental Rights are Void. Among the ideas which have supplemented
other phases of the elastic term "due process of law," in limiting
legislative functions, is the doctrine that there are immutable fundamental
rights or principles which no governmental authorities may invade.
Notions of natural law and of fundamental natural rights, as we have noted,
were among the dominant notions of the leaders of the American Revolution and
of the framers of the first written constitutions in the United States.
Governments, it was believed, were instituted primarily to preserve these
rights. And it was taken for granted that legislative enactments which
contravened such rights were void, though ideas as to how to prevent such
legislative acts or to assure protection to the people against illegal
procedure under them were often indefinite. The assertion by the courts of the
right to review the constitutionality of legislative acts and to become the
special guardians of the written instruments containing assertions of natural
rights gave a new turn to the legal applications of the fundamental rights
It was in connection with the interpretation of the privileges and
immunities guaranteed to the citizens of the several states by the federal
Constitution that the doctrine of fundamental rights was early announced.
Justice Washington said:
"We feel no hesitation in confining these expressions to
those privileges and immunities which are, in their nature fundamental; which
belong, of right, to the citizens of all free governments." Though it was
regarded as difficult to enumerate these fundamental privileges a few were
suggested, such as the enjoyment of life and of liberty, the right to acquire
and possess property of every kind, and to pursue and obtain happiness and
safety, subject to such restraints as the government may prescribe for the
general good. "Standing upon
the principles of natural justice, upon the fundamental laws of every free
government, upon the spirit and letter of the Constitution of the United
States," Justice Story held invalid a state legislative act which
attempted to interfere with the vested property rights of a
corporation. The rather common
belief in fundamental rights also received his sanction when he called
attention to the "fundamental maxims of free government," which
required that the rights of personal liberty and private property should be
When the doctrines of the Federalists and of conservative thinkers generally
lost ground and were repudiated by all departments of the government, including
the judiciary, in favor of popular theories of political control, little was
heard for several decades of immutable fundamental rights in state or federal
The doctrine was reaffirmed after the Civil War by Justice Chase and then by Justice Miller, who insisted
that there are rights in every free government beyond the control of the state
and that there are limitations which grow out of the essential nature of all
free governments, "implied reservations of individual rights, without
which the social compact could not exist, and which are respected by all
governments entitled to the name." All men, thought Justice Field, have certain
inalienable rights; among these are life, liberty, and the pursuit of
happiness; in the pursuit of happiness all avocations, all honors, all
positions, are alike open to everyone; and in the protection of these rights
are all equal before the law.
The eighteenth-century notion of fundamental rights beyond the realm of
government interference and the concept of inalienable rights as formulated in
the Declaration of Independence which, it was thought, governments were
designed to protect, have now been incorporated by means of judicial
construction as essential elements of due process of law and as necessary
principles of the American system of government.
Few lawyers or judges were as frank as Justice Harlan who was among those
applying natural law ideas, when he said: "the courts have rarely, if
ever, felt themselves so restrained by technical rules that they could not find
some remedy, consistent with the law, for acts, whether done by government or
by individual persons, that violated natural justice or were hostile to the
fundamental principles devised for the protection of the essential rights of
Justice Moody was similarly frank when he preferred to rest the decision
regarding exemption from self-incrimination on broader ground than the strict
language of the Constitution and raised the query, "Is it a fundamental
principle of liberty and justice which inheres in the very idea of free
government and is the inalienable right of a citizen of such a government? If
it is, and is of a nature that pertains to process of law, this court has
declared it to be essential to due process of law."
Despite these apparent applications of principles of reason, or of natural
law and natural justice in the opinions of the justices and of the marked
change in the meaning of due process of law, the assertion is repeated
consistently that judges in the decision of cases have nothing to do with the
wisdom, justice, or expediency of legislative acts.
3. Police Regulations must be Reasonable. The extensive limitations
which were inserted in the state constitutions and the implied limitations
developed by the courts placed many restrictions upon the authority of the
states and rendered it difficult to meet the public needs and requirements.
Hence the doctrine of the police power was conceived as a kind of safety-valve
through which the necessary authority for the protection of the public order,
public morals, and public health might be authorized despite these
restrictions. But the exercise of
such powers, it was eventually held, was subject to the requirements of due
process of law and equal protection of the laws and the general necessity of
reasonableness. American courts, following the English practice, held that the
by-laws of a municipal corporation, unless expressly authorized by a
legislative act, must be reasonable, and must not be inconsistent with the
general principles of the common law, particularly those having relation to the
liberty of the individual or the rights of private property. This meant that ordinances might be held
void which were deemed unfair, oppressive, or discriminatory.
State legislatures, also, in their efforts to regulate social and industrial
conditions were held subject to the requirement that "under the mere guise
of police regulations personal rights, and property rights cannot be
arbitrarily invaded, and the determination of the legislature is not final or
conclusive." It was also held
for the courts to decide whether a regulation had in fact some relation to the
public health, whether it was appropriate, and adapted to the end aimed
The federal justices, who first refused to interfere with the police powers
of the state under the due process provision, were prevailed upon to adopt the
dictum of the New York court, that
the power to regulate is not the power to destroy, and to render this dictum applicable to all
types of social legislation. A rule of reason test for police regulations
extensive in its scope was also formulated by Justice Peckham.
A state law, therefore, might be held void when enacted to protect the
public health, the public morals, or the public safety if it had "no real
or substantial relation to those objects, or is, beyond all question, a plain,
palpable invasion of rights secured by the fundamental law."
The criteria by which the Supreme Court determines whether a state act is a
legitimate exercise of the police power are:
1. The object of the legislation must be permissible.
2. The means must have a substantial relation to the end.
3. Fundamental rights must not be infringed.
4. The effect of the enforcement of the law must not be arbitrary,
unreasonable, or oppressive.
Thus it will be seen that the courts may adopt Locke's dictum and hold that
an act which appears to them unwise is not within the scope of legislative
action. Or they may conclude that the ways and means adopted by the legislature
are not appropriate to accomplish the object intended. If an act meets these
tests it may run afoul of the fundfundamental rightsezil13 --> of the individual and what are
fundamental rights has never been determined. Finally, it must meet the test of
reasonableness, which is the most difficult of all requirements, for who knows
what will appear reasonable to the judicial mind? It is not surprising then for the conclusion
to be reached, after a thorough analysis of the attempts to apply the criterion
of due process of law to cases arising under the police power, that the
opinions of the Supreme Court "have confused rather than clarified the
subject and that from such attempts have come no rules, standards, or
principles capable of certain applications to concrete cases."
The criteria upon which the court proceeds in such cases, it is observed,
are largely subjective and depend upon the personal, political, and economic
opinions of the justices. The terms "arbitrary,"
"unreasonable," and "oppressive" are not defined in the
written law and can be applied only "in the light of the judges' own
mental processes." It is here
that the silence of the Constitution speaks in a voice tuned only to judicial
The situation resulting from the application of the general language of the
Fourteenth Amendment to state legislation on social and industrial matters is
thus summarized by Mr. Nesbitt:
The difficulty with what I have chosen to call the categorical
view of the due process of law requirement as applied to legislation, dealing
with social and economic changes, is that it extols bare authority at the
expense of experience; that it results in the deductive application of general
principles to precise facts often without any accommodation to the particular
situation out of which the legislation has arisen; that it tends to limit the
content of the clauses to a fixed, unconditional meaning, precluding all
flexibility in their application; that it construes the due process of law
clauses not so much as broad guarantees of "relatively fundamental
rights" as the regulations of a code, as arbitrary abstract principles
rather than organic rules; and that it excludes consideration of public opinion
as a fact to be taken into account in determining the reasonableness of
legislation, thus making the opinion of the court as fixed by judicial
experience the measure of the limit of the legislative function. The standard
of reasonableness which it would apply is remote and traditional.
There is involved in much of the reasoning of the judges in the cases under
the police power an assumption of inherent superiority of the wisdom and
judgments of justices over the judgments of members of the other departments of
government. The legislature, it is asserted, cannot invade the rights of person
or property, under the guise of a police regulation when it is not such in
fact. It is insisted also that it is the province of the judiciary to determine
when personal or property rights have been invaded and whether a measure is
appropriate for the desired object. Constitutions do not define police
regulations which do or do not invade personal or property rights nor do they
give any indication as to the appropriate objects of such regulations. Police
power as a constitutional concept is a judge-made concept arising from the
assumption that legislatures are disposed to fritter away constitutional
inhibitions and that it is the duty of judges to prevent such legislative
depredations. The term "police power" was hit upon as a convenient
phrase for the courts to determine whether a legislative act which interfered
with private rights was reasonable enough to have judicial approval.
What the whole matter amounts to, we are told, is: "There must be some
sort of reasonable balance between the degree of interference with private
rights and the public benefit which may be expected to flow from that
interference." What is a
"reasonable balance," and who is in the best position to decide this
question — a judge or a legislator — probably a judge if the chief
object is to preserve private rights, and a legislator if the public interest
and convenience is to be given superior weight?
4. Results of the Extension of the Meaning of Due Process of Law.
With judicial review of legislative enactments applied via due process
of law to the main lines of public regulation of business and economic
conditions, it was not long before the Fourteenth Amendment took its place as
the foremost feature of the federal Constitution, so far as the limitations on
the powers of the states are concerned. Whereas for the first twenty years
after the adoption of the amendment about one case per year on the average
arose under its provisions, it was not long before thirty or more cases were
adjudicated in the same period. In such important fields of state power as
eminent domain, taxation, public utility regulation, and the police power,
state and local acts had been attacked before the Supreme Court in more than
six hundred cases to the year 1910.
To 1910 according to the table of Collins the following questions had been
raised under the Fourteenth Amendment:
Eminent domain .................. 27 cases
Taxation ........................... 144 "
Matters of procedure ........ 146 "
Police power .................... 302 "
Most of the cases which have arisen under this amendment have been decided
since 1896. From 1900 to 1913 there were four hundred and nine opinions or
about thirty one per year. Out of a total of more than six hundred cases only
twenty-eight dealt with the rights of the negro race for whose protection the
amendment was primarily enacted. More than half of the cases have come to the
court on appeals of public utility interests and other corporate organizations
asking protection from the acts of the legislatures and administrative agencies
of the states. Though the
amendment was enacted primarily as a charter of liberty for the negro race it
has been used to a great extent by corporations, public and private, to resist
the efforts toward public regulation and to check the exercise of state
authority through eminent domain, taxation, and the police power.
As a result of such a series of decisions, quasi-legislative in character,
the prohibitions involved in due process of law were held applicable to
substantive law as well as to legal procedure, to executive, administrative,
and judicial acts as well as to legislation, and to corporations as well as to
natural persons. Writing in 1919,
Judge Hough believed that "the direct appeal of property to due process of
law had for the most part failed.... The indirect appeal through liberty is
still going on.... But it is dying, and the courts, when invoked today under
the due-process clause, are doing little more than easing the patient's later
days." That this prediction
is not being fulfilled is shown by the fact that since 1920 more acts in the
field of social and economic legislation have been invalidated under the due
process clause than were set aside from 1868 to 1920.
Phrased in percentages this means that from 1868 to 1912 the
Court held against the legislature in a very little more than six per cent of
the cases; from 1913 to 1920 in a little more than seven per cent of the cases;
while since 1920 the Court has held against the legislature in twenty-eight per
cent of the cases. And if we go behind the decisions and look at the votes of
the individual judges in each case, we will find the same startling increase in
the number of opinions adverse to the validity of legislation under the due
process clauses. In the period up to 1921 the judicial vote was cast
approximately ninety per cent in favor of the various statutes considered, and
only ten per cent against. Since then, however, the favorable vote has shrunk
to about sixty-nine per cent and the adverse vote grown to thirty-one per
Evidently the justices regard with increasing seriousness their assumed duty
to guide political action in a safe course so as to avoid the dangers of
economic or social radicalism.
5. Some Examples of Higher Law Concepts in Recent Supreme Court
Decisions. The doctrine of liberty of contract, an inalienable-right
product, is now construed as involved in the Fifth and Fourteenth Amendments.
This doctrine was applied in a decision of the Supreme Court of the United
States by holding invalid the Minimum Wage Act passed by Congress for the
District of Columbia. Justice
Sutherland, rendering the opinion of the court, held that the right to contract
about one's affairs is a part of the liberty of the individual protected by the
Fifth Amendment. Quoting with approval the much criticized opinion of Justice
Peckham in the case of Lochner v. New York, he concluded that the Act of Congress was
simply and exclusively a price-fixing law, confined to adult
women — who are legally as capable of contracting for themselves as men.
It forbids two parties having lawful capacity — under penalties as to the
employer — to freely contract with one another in respect of the price for
which that one shall render services to the other in a purely private
employment where both are willing, perhaps anxious, to agree.
The standard for the guidance of the board under the act was regarded so
vague as to be impossible of practical application. It took into account the
necessities of only one party to the contract and it fixed an arbitrary wage
payment and thus interfered with economic laissez faire; altogether the
act, Justice Sutherland declared, was "clearly the product of a naked,
arbitrary exercise of power."
Chief Justice Taft, dissenting, with whom concurred Justice Sanford, took
issue with the contention that there is, in many instances, a substantial
equality as between employer and employee. He admitted that the policy of a
compulsory minimum wage is one on which there is much dispute but he thought it
was "not the function of this court to hold congressional acts invalid
simply because they are passed to carry out economic views which the Court
believes to be unwise or unsound." The principle of the limitation of liberty
of contract was recognized by the court in the regulation of wages and labor
conditions under the police power and it seemed difficult to understand the
difference between regulating the manner and time of payment of wages or fixing
maximum hours of labor and the fixing of a minimum wage.
In his opinion the Lochner Case was overruled and he expressed
surprise at the attempt of the majority justices to quote the case as a
precedent. The intimation that the controlling effect of earlier opinions had
been weakened by the Nineteenth Amendment was answered by the statement that
this amendment did not change the differences between men and women recognized
by Congress in the passage of this act.
Justice Holmes also dissented and observed that:
Notwithstanding the deference due to the prevailing judgment of
the Court, the power of Congress seems absolutely free from doubt. The end, to
remove conditions leading to ill health, immorality, and the deterioration of
the race, no one would deny to be within the scope of constitutional
legislation. The means are the means that have the approval of Congress, of
many states, and of those governments from which we have learned our greatest
lessons. When so many intelligent persons, who have studied the matter more
than any of us can, have thought that the means are effective and are worth the
price, it seems to me impossible to deny that the belief reasonably may be held
by reasonable men....
The earlier decisions upon the same words in the Fourteenth Amendment began
within our memory, and went no farther than an unpretentious assertion of the
liberty to follow the ordinary callings. Later that innocuous generality was
expanded into the dogma, liberty of contract. Contract is not specially
mentioned in the text that we have to construe. It is merely an example of
doing what you want to do, embodied in the word liberty. But pretty much all
law consists in forbidding men to do some things that they want to do, and
contract is no more exempt from law than other acts.
The opinions of Justice Van Orsdel of the District of Columbia Court and
Justice Sutherland illustrate the attenuated methods of reasoning involved in
declaring void legislative acts under the phrase "due process of
law." They likewise
illustrate the process of judicial interpretation by which implied limitations
on legislative powers are extracted from the general language of constitutions.
It is the method of reasoning which first discovered a doctrine of vested
rights which might be preserved whether or not constitutions gave such a
protection, which found inherent limitations on legislatures to protect
property rights through the terms "public purpose" and "public
use," and which, lacking any express provision, fell back on the spirit of
the constitution or the general principles of free government to condemn, as
Justice Holmes suggests, what "a tribunal of lawyers does not think about
right." Both justices assume
certain fundamental principles and then by what appears to them as
"indubitable demonstration" they conclude that the acts are
arbitrary, unreasonable, and necessarily void — as contrary to due process
of law. Here is an application of the old natural rights and natural law
philosophy, combined with the mechanical concept of the functions of the court.
That there is no clear dividing line between arbitrary restraint and reasonable
regulation; that the determination of the dividing line is largely one of
policy on which the judgment of the legislature with the full facts before it
ought to be relatively sound, or can be readily changed, if found unsound; and
that a court is overstepping the bounds of its legitimate authority to pass on
the wisdom or folly of the economic policy of wage legislation, did not make
any difference to the justices imbued with the doctrine of fundamental
principles or of a modern Naturrecht.
Conceived in the spirit of individualism and laissez faire
characteristic of the pioneer conditions which prevailed in a large part of the
country more than a generation ago, the concept of liberty of contract as an
absolute right is ill suited to the industrial conditions now prevailing in
many American communities. If
there is any field in which the precept should prevail that law is a
progressive science, that rights are subject to restrictions and limitations as
the social interest may require, and that the determination as to what
restrictions are on the whole wise and salutary belongs primarily to the
legislature, it is the growing field of the necessary regulations and
adjustments in the wage contract. A minimum wage law may or may not be wise
from the economic or social viewpoint. But the best way to determine its wisdom
or unwisdom would appear to be to give it a trial under terms and conditions
laid down by a legislative body which could change those conditions, if the act
proved unwise after a fair trial. For the court to prevent such
experimentation, with the care, foresight, and experience manifested in the
enactment and administration of labor laws, under an attenuated view of due
process of law, protecting liberty and property, is to place too heavy a burden
upon the judiciary and to throttle the avenue of advance for government to meet
the growing needs of modern economic and industrial society.
When the bakers resisted the enforcement of a Nebraska statute providing for
standard sizes for loaves of bread with an allowance for an excess over the
specified standards, as unnecessary, unreasonable, and arbitrary, the Supreme
Court held, Justice Butler rendering the opinion, that the state may not
"under the guise of protecting the public arbitrarily interfere with
private business or prohibit lawful occupations or impose unreasonable and
unnecessary restrictions upon them." The provisions of an act must have,
he demanded, a reasonable relation to the protection desired to be
accomplished. Regarding the act as
essentially unreasonable and arbitrary it was held void as contrary to the
Justice Brandeis, dissenting, stated the problem of the application of the
rule of reason in such cases as follows:
With the wisdom of the legislation we have, of course, no
concern. But, under the due process clause as construed, we must determine
whether the prohibition of excess weights can reasonably be deemed necessary;
whether the prohibition can reasonably be deemed an appropriate means of
preventing short weights and incidental unfair practices; and whether
compliance with the limitation prescribed can reasonably be deemed practicable.
The determination of these questions involves an enquiry into facts. Unless we
know the facts on which the legislators may have acted, we cannot decide
whether they were (or whether their measures are) unreasonable, arbitrary, or
After an extensive summary of evidence showing the practical necessity of
the prohibition of excess weights as a means of preventing short weights, he
The evidence contained in the record in this case is, however,
ample to sustain the validity of the statute. There is in the record some
evidence in conflict with it. The legislature and the lower courts have,
doubtless, considered that. But with this conflicting evidence we have no
concern. It is not our province to weigh evidence. Put at its highest, our
function is to determine, in the light of all facts which may enrich our
knowledge and enlarge our understanding, whether the measure, enacted in the
exercise of an unquestioned police power and of a character inherently
unobjectionable, transcends the bounds of reason. That is, whether the
provision as applied is so clearly arbitrary or capricious that legislators
acting reasonably could not have believed it to be necessary or appropriate for
the public welfare.
To decide, as a fact, that the prohibition of excess weights "is not
necessary for the protection of the purchasers against imposition and fraud by
short weights"; that it "is not calculated to effectuate that
purpose"; and that it "subjects bakers and sellers of bread" to
heavy burdens, is, in my opinion, an exercise of the powers of a
super-legislature — not the performance of the constitutional function of
Again the majority of the court, as in the Minimum Wage Case, refused
to accept the judgment of the legislature on the facts and then condemned the
policy determined by the legislative body to deal with the facts.
The vacillation and uncertainty involved in according a general power of
review over state acts to judges who are likely to be unfamiliar with the local
conditions which prompted the acts are shown in many recent cases. There are
cases in which the judges indicate a disposition to place the burden of proof
upon those who attack state statutes and to defer to the judgment of state
authorities, legislative and judicial. When this tendency was beginning to be
considered as a rule of law, the
justices again showed an inclination to resort primarily to their own judgments
of facts and local conditions. The refusal to give special consideration to
local conditions, is indicated in the New York Theater Ticket
The New York legislature passed a law to remedy notorious abuses in the
resale of theater tickets, because in its judgment the matter was of sufficient
public interest to warrant public regulation. But the Supreme Court declared
the law void on the ground that the act was an unwarranted interference with a
private business. "The mere declaration by the legislature," said
Justice Sutherland, "that a particular kind of property or business is
affected with a public interest is not conclusive upon the question of the
validity of the regulation. The matter is one which is always open to judicial
Justice Holmes, who has expressed more frequently and insistently than any
other justice the view that the justices have substituted their views of public
policy for those of the legislature, said in a dissenting opinion,
I think the proper course is to recognize that a state
legislature can do whatever it sees fit to do unless it is restrained by some
express prohibition in the Constitution of the United States or of the State,
and that courts should be careful not to extend such prohibitions beyond their
obvious meaning by reading into them conceptions of public policy that the
particular court may happen to entertain.... I am far from saying that I think
this particular law a wise and rational provision. That is not my affair. But
if the people of the State of New York speaking their authorized voice say they
want it, I see nothing in the Constitution of the United States to prevent
their having their will.
Reasonable as this opinion may seem, the majority of the Supreme Court have
declared otherwise. Again, when Minnesota attempted to prohibit buyers of dairy
products from discriminating between localities, the majority of the Supreme
Court refused to accept the legislative determination of facts and held the law
invalid as an unwarranted interference with freedom of contract.
The way in which the Supreme Court makes law in interpreting the Fourteenth
Amendment is illustrated in the gradual inclusion of the first eight
amendments, which were held to apply only to federal law and
procedure, as a part of the
Fourteenth Amendment — and hence as limitations on state laws and
procedure. Subsequent to the Barron Case it was held frequently that the
provisions of the Bill of Rights of the federal Constitution were not
applicable to state action. This opinion was reaffirmed in recent decisions
when it was asserted that "neither the Fourteenth Amendment nor any other
provision of the Constitution of the United States imposes upon the states any
restriction about freedom of speech." But three years later Justice Sanford,
upholding the validity of the New York Criminal Anarchy Law, said:
"We may and do assume that freedom of speech and of the
press — which are protected by the First Amendment from abridgement by
Congress — are among the fundamental personal rights and liberties
protected by the due process clause of the Fourteenth Amendment from impairment
by the States."
Repeated efforts to secure protection from the federal courts in such
matters as state interferences with the right of suffrage, the right of
assembly, the right to bear arms, the right of impartial trial, the right
against cruel and unusual punishment, the right against compulsory
self-incrimination were given
little countenance prior to 1925. In 1925 it is assumed without argument or
discussion that the fundamental rights and liberties of the first eight
amendments are protected by the due process clause of the Fourteenth Amendment.
"Despite arguments to the contrary which had seemed to me
persuasive," said Justice Brandeis,
it is settled that the due process clause of the Fourteenth
Amendment applies to matters of substantive law as well as to matters of
procedure. Thus all fundamental rights comprised within the term liberty are
protected by the federal Constitution from invasion by the states. The right of
free speecfundamental rightsach, and the right of assembly are, of course,
Justice Stone, speaking of the holding of the Supreme Court that the Sherman
Anti-Trust Law prohibits only such restraints upon interstate commerce as are
unreasonable, says: "Reasonableness is not a concept of definite and
unchanging content. Its meaning necessarily varies in the different fields of
the law, because it is used as a convenient summary of the dominant
considerations which control in the application of legal doctrines." And
recognizing the uncertainty of the test of reasonableness as a legal concept,
Moreover, in the absence of express legislation requiring it, we
should hesitate to adopt a construction making the difference between legal and
illegal conduct in the field of business relations depend upon so uncertain a
test as whether prices are reasonable — a determination which can be
satisfactorily made only after a complete survey of our economic organization
and a choice between rival philosophies.
If such complete economic surveys had been made would a ten-hour bakeshop
law, or a minimum wage law as well as a number of other state and federal acts
have been declared void?
When the Fourteenth Amendment was construed to prohibit state legislative
and administrative acts which were deemed arbitrary, to prevent any
interference with fundamental rights, to require that all state and local
police regulations must be reasonable, and the justices determined that it was
their duty to examine the facts on which state legislative and administrative
policies were based as well as the ends to be accomplished by regulation, a
change in the American system of government was effected, the results of which
are only beginning to be realized. The change has its roots in the political
and legal thinking of earlier periods but few could have surmised what a
significant turn in political practice was to follow from a slow and silent
revolution in constitutional interpretation.
1. See F. W. Maitland, "An Historical Sketch of
Liberty and Equality" in Collected Papers (ed. by H. A. L. Fisher,
Cambridge, 1911), I, 80, 83.
2. Cf. Mott, Due Process of Law, chaps. 3 and
3. For use of the terms "arbitrary" or
"unreasonable" in passing on the validity of legislative acts in the
United States, consult Robert P. Reeder, "Is Unreasonable Legislation
Unconstitutional";" University of Pennsylvania Law Review,
LXII (January, 1914), 191.
4. See comments of Attorney General Haywood in State
v. — 29, 30 (N. C., 1794) and of Justice Peck in State v.
Cooper, 2 Yerg. (Tenn., 1831) 599, 611. The law of the land provision, Justice
Nott thought, was intended "in some way or other, to operate as a check
upon the exercise of arbitrary power." Dunn v. City Council of
Charleston, Harper's Law Reports. 189, 199 (1824). Chief Justice Gibson in
Norman v. Heist, 5 W. & S. (Pa., 1843) 171, 173 claimed that the
design of the convention which framed the state constitution was to exclude
arbitrary power from every branch of the government. The exercise of a
governmental power which is arbitrary is void, according to Justice Campbell,
dissenting in Sears v. Cottrell, 5 Mich. 251, 281 (1858).
5. Justice Johnson in Bank of Columbia v.
Okely, 4 Wheat. 234, 244 (1819). This dictum of Justice Johnson was cited and
approved by Justice Gray in Scott v. McNeal in denying to a state court
the right to sell property for the payment of debts without notice to a party
absent from the state for seven years. 154 U. S. 34, 45 (1893).
6. Justice Mason in White v. White, 5 Barb.
474, 484 (1849).
7. See, however, Chief Justice Hines in Barbour
v. Louisville Board of Trade, 82 Ky. 645, 648 (1885).
8. "The principal, if not the sole, purpose of
its [the Fourteenth Amendment] prohibitions is to prevent any arbitrary
invasion by state authority of the rights of persons and property."
Justice Field, dissenting in Butchers' Union v. Crescent City Co., 111
U. S. 746, 759 (1883).
9. Justice Bradley, concurring in Davidson v.
New Orleans, 96 U. S. 97, 107 (1877).
10. Justice Field in ex parte Wall., 107 U. S.
265, 303 (1882). And again, he asserted, the Fourteenth Amendment undoubtedly
intended that there should be "no arbitrary deprivation of life or
liberty, or arbitrary spoliation of property," and that equal protection
and security should be given to all under like circumstances in the enjoyment
of their personal and civil rights. Barbier v. Connolly, 113 U. S. 27,
31 (1885). Cf. also Stuart v. Palmer, 74 N. Y. 183, 190 (1878), in which
a New York justice regarded the due process clause as a limitation upon the
arbitrary exercise of legislative powers. "The legislature may not, under
the guise of protecting the public interests, arbitrarily interfere with
private business, or impose unusual and unnecessary restrictions upon lawful
occupations." Justice Brown in Lawton v. Steele, 152 U. S. 133, 137
11. Hurtado v. California, 110 U. S. 516, 532
(1884). Beginning with Davidson v. New Orleans, 96 U. S. 97 (1878), Mr.
Willis asserts, Coke's doctrine of a fundamental law superior to all
legislation was made a part of due process of law. Hugh Evander Willis,
"Due Process of Law under the United States Constitution," Univ.
of Pa. Law Rev., LXXIV (February, 1926), 331, 335. For applications of the
new interpretation see Chicago, Milwaukee and St. Paul Ry. Co. v.
Minnesota, 134 U. S. 418 (1890); Allgeyer v. Louisiana, 165 U. S. 578
(1897); and Lochner v. New York, 198 U. S. 45 (1905).
12. Justice Harlan in Chicago, Burlington and Quincy
Ry. Co. v. Chicago, 166 U. S. 226, 234 (1896), and Chicago, Rock Island
& Pac. Ry. Co. v. Arkansas, 219 U. S. 453, 465 (1910).
13. Cf. Holden v. James, 11 Mass. 396, 405
(1814) and supra, p. 111.
14. Opinions of Justices Field in Barbier v.
Connolly, 113 U. S. 27, 32 (1885), and Matthews in Yick Wo v. Hopkins,
118 U. S. 356, 369, 370 (1886). Said Justice Matthews: "When we consider
the nature and the theory of our institutions of government, the principles
upon which they are supposed to rest, and review the history of their
development, we are constrained to conclude that they do not mean to leave room
for the play and action of purely personal and arbitrary power." Chief
Justice Fuller confirmed the rights of the states to deal with criminals within
their borders provided no person or class of persons was denied equal and
impartial justice and provided state procedure did not subject "the
individual to the arbitrary exercise of the powers of government unrestrained
by the established principles of private right and distributive justice."
Leeper v. Texas, 139 U. S. 462, 468 (1890).
15. The term "arbitrary" is vague enough in
its connotations to give the widest latitude for a judicial censorship. It may
mean acts not governed by any fixed rules, or which are capricious, unfair,
absolute, despotic, tyrannical, or irresponsible. It is obvious that personal
and partisan inclinations will have great weight in determining whether
legislative enactments come within one of these indefinite categories.
16. Upholding a New York law providing for capital
punishment by electrocution, Chief Justice Fuller said that the Fourteenth
Amendment required that the action of the states be "exerted within the
limits of those fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions. Undoubtedly the amendment
forbids any arbitrary deprivation of life, liberty, or property, and secures
equal protection to all under like circumstances in the enjoyment of their
rights." In re Kemmler, 136 U. S. 436, 448 (1889). See also Justice
Moody in Twining v. New Jersey, 211 U. S. 78, 100 (1908).
17. Classification "must always rest upon some
difference which bears a reasonable and just relation to the act in respect to
which classification is proposed, and can never be made arbitrarily and without
any such basis... but arbitrary selection can never be justified by calling it
classification." Justice Harlan in Connolly v. Union Sewer Pipe Co., 184
U. S. 540, 560 (1902), citing the opinion of Justice Brewer in Gulf, Colorado
and Santa Fé Railway v. Ellis, 165 U. S. 150, 155, 159 (1896).
Cf., also, Justice Day in Southern Ry. Co. v. Greene, 216 U. S. 400, 417
(1909). For state cases declaring arbitrary police regulations void, cf. Mott,
op cit., p. 338.
18. Truax v. Corrigan, 257 U. S. 312, 332
(1924). Mr. Reeder suggests that the practice of declaring legislative acts
void because unreasonable, may be regarded as more nearly related to the old
idea of natural justice than to the due process of law provision Op.
cit., p. 200.
19. Dissenting opinion in Lochner v. New York,
198 U. S. 45, 76 (1904).
20. Cooley, Constitutional Limitations (8th
ed., 1927), pp. 356, 357. If no other grounds can be discovered to prohibit
legislative action, the people have reserved the power to themselves. Whether
an act is or is not arbitrary depends upon the conditions prevailing at the
time. Justice Pound in People v. La Fetra, 230 N. Y. 429, 444 ff.; 130
N. E. 601 (1921); Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260
U. S. 393, 413 (1922); and Emergency Rent Cases — Block v. Hirsch,
256 U. S. 135 (1921) and Levy Leasing Co. v. Siegel, 258 U. S. 242
21. See Reeder, op. cit., pp. 191, 192, for
cases in which the Supreme Court has suggested that action would violate the
due process of law provision, if unreasonable or arbitrary, and in which the
court has intimated that it will pass on the necessity or desirability of
legislative or administrative action.
Referring to the claim that an order of the Interstate Commerce Commission
based upon its findings of fact was conclusive, Justice Lamar said: "A
finding without evidence is arbitrary and baseless.... Such authority, however
beneficently exercised in one case could be injuriously exerted in another, is
inconsistent with rational justice, and comes under the Constitution's
condemnation of all arbitrary exercise of power." Int. Com. Comm.
v. Louisville & Nashville R. R., 227 U. S. 88, 91 (1912).
"The purpose of the equal protection clause of the Fourteenth Amendment
is to secure every person within the State's jurisdiction against
intentional and arbitrary discrimination." Chief Justice Tatt in
Sioux City Bridge v. Dakota County, 260 U. S. 441, 445 (1922), or state
procedure in assessments for local improvements must not be "palpably
arbitrary or a plain abuse." Justice Holmes in Gast Realty Co.
v. Schneider Granite Co., 240 U. S. 55, 58 (1915).
Judgments obtained by fraud or without service are not erroneous and not
voidable but "upon principles of natural justice, and under the due
process clause of the Fourteenth Amendment are absolutely void." Justice
Lamar in Simon v. Southern Ry. Co., 236 U. S. 115, 122 (1915). [Italics
by the author.]
22. For an analysis of cases affirming the doctrine of
fundamental rights and of the incorporation of this doctrine in the due process
of law clause, see Francis W. Bird, "The Evolution of Due Process of Law
in the Decisions of the United States Supreme Court," Columbia Law
Review, XIII (January, 1913), 37.
23. Corfield v. Coryell, 4 Wash. C. C. 371,
380-382 (1823), Fed. Cas. No. 3230.
24. Terrett v. Taylor, 9 Cranch, 43, 51 (1815);
see reference to "republican principles" by Justice Chase in Calder
v. Bull, 3 Dallas, 388 (1798).
25. Wilkinson v. Leland, 2 Pet. 627, 657
(1829); for extract from Story's opinion cf. supra, p 94.
26. Occasional references may, of course, be found to
what Daniel Webster, in arguing the Dartmouth College Case, called
"the great principles of republican liberty and of the social
compact," or to the "eternal principles of justice which no
government has a right to disregard." Justice Green in Bank of State
v. Cooper, 2 Yerg. 599, 603 (1831). "There is a fundamental
principle of right and justice, inherent in the nature and spirit of the social
compact... that rises above and restrains and sets bounds to the power of
legislation," said Chief Justice Buchanan in Regents v. Williams, 9
G. & J. 365, 408 (1838). Cooley thought certain "fundamental
rights" when inserted in a constitution operated as a limitation on the
legislature without any express provisions. Constitutional Limitations
(1st ed., 1868), and People v. Hurlbut, 24 Mich. 44, 97-98 (1871).
27. "There are, undoubtedly, fundamental
principles of morality and justice which no legislature is at liberty to
disregard." License Tax Cases, 5 Wall. 462, 469 (1866).
28. Loan Association v. Topeka, 20 Wall. 655,
663 (1874); see also Justice Harlan in Madisonville T. Co. v. St.
Bernard M. Co., 196 U. S. 239, 251, 252 (1904); and Justice Brown in Holden v.
Hardy, 169 U. S. 366, 389 (1898), wherein "certain immutable principles of
justice" are declared to "inhere in the very idea of a free
government"; and Benson v. Mayer, 10 Barb. 223, 245 (1850), in
which reference was made to "the great principles of Eternal Justice,
which lie at the foundation of all free governments." To Justice Swayne
they are the "conservative principles which lie at the foundation of all
free government," St. Louis v. The Ferry Co., 11 Wall. 423, 429
(1870); and to the Wisconsin Supreme Court they are "a part of the
inherent rights which governments under our conception are established to
conserve," Nunnemacher v. State, 129 Wis. 190, 197-202 (1907). See
also Justice Knowlton in Commonwealth v. Perry, 155 Mass. 117, 121
(1891), and Justice Deemer in State v. Barker, 116 Ia. 96, 105 (1902).
29. Cummings v. Missouri, 4 Wall. 277, 321
(1886). The Fourteenth Amendment, according to Justice Field, "was
intended to give practical effect to the Declaration of 1776 of inalienable
rights which are the gift of the Creator, which the law does not confer, but
only recognizes." Slaughter-House Cases, 16 Wall. 36, 105 (1872). Agreeing
with this opinion, Justice Harlan said that since the adoption of the
Fourteenth Amendment, "the privileges and immunities specified in the
first ten amendments as belonging to the people of the United States are
equally protected by the constitution." Dissent in Maxwell v. Dow,
176 U. S. 581, 616 (1899). And again he said, "I go further and hold that
the privileges of free speech and of free press, belonging to every citizen of
the United States, constitute essential parts of every man's liberty, and are
protected against violation by that clause of the Fourteenth Amendment
forbidding any state to deprive any person of his liberty, without due process
of law." Patterson v. Colorado, 205 U. S. 454, 456 (1906). Compare
this view with the majority opinion of Justice Sanford in Gitlow v. New
York, 268 U. S. 652 (1925); cf. infra, p. 193. Speaking through one of
the champions of individualism, the Supreme Court held on another occasion that
the Fourteenth Amendment "simply furnishes an additional guaranty against
any encroachment by the states upon the fundamental rights which belong to
every citizen as a member of society." Chief Justice Waite in United
States v. Cruikshank, 92 U. S. 542, 554 (1875); see reference to
"immutable principles of liberty and justice" in Hurtado v.
California, 110 U. S. 516, 535 (1884), also Justice Day in Watson v.
Maryland, 218 U. S. 173, 177 (1910). For comment as to the way in which the
pursuit of the immutable principles of justice in connection with the concept
of due process of law leads into the "fields of speculation cultivated by
writers on the law of nature and the nebulous natural rights of man," see
L. P. McGehee, Due Process of Law, pp. 38, 57 ff.
30. For a summary of citations that the fundamental
rights of the citizen are inviolable, cf. Robert P. Reeder,
"Constitutional and Extra-Constitutional Restraints," Univ. of Pa.
Law Rev., LXI (May, 1913), 441, 452. The emerging concept of liberty of
contract was soon to be grouped with the undefined fundamental rights. "No
proposition is now more firmlfundamental rightst Justice Rapallo,
"than that it is one of the fundamental rights and privileges of every
American citizen to adopt and follow such lawful industrial pursuit, not
injurious to the community, as he may see fit." People v. Marx, 99
N. Y. 377, 386 (1885). "There are certain fundamental rights of every
citizen which are recognized in the organic law of all our tree American
states. A statute which violates any of these rights is unconstitutional and
void even though the enactment of it is not expressly forbidden.... The right
to acquire, possess, and protect property includes the right to make reasonable
contracts, which shall be under the protection of law." Commonwealth
v. Perry, 155 Mass. 117, 125 (1891). The federal courts can only
interfere when fundamental rights guaranteed by the federal Constitution are
violated, Justice McKenna in Ballard v. Hunter, 204 U. S. 241, 262
(1907); Justice Day in Rogers v. Peck, 199 U. S. 423, 434 (1905), and in
Franklin v. South Carolina, 218 U. S. 161, 164, 165 (1910); "the
limit of the full control which the state has in the proceedings of its courts
both in civil and criminal cases, is subject only to the qualification that
such procedure must not work a denial of fundamental rights or conflict with
specific and applicable provisions of the federal Constitution." Justice
Peckham in West v. Louisiana, 104 U. S. 258, 263 (1904); see also
Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 107 (1009). Legislative
acts, according to Chief Justice Taft, are not due process which are not in
accord with the fundamental principle of equality of application of the law.
Truax v. Corrigan, 257 U. S. 312, 332 (1921). Judge Dillon thought the
value of the due process clause of the Fourteenth Amendment consisted primarily
"in the great fundamental principles of right and justice, which it
embodies and makes part of the organic law of the nation." The Laws and
Jurisprudence of England and America (1894), pp. 208-212. "The great
fundamental rights," said Judge Dillon," guaranteed by [American]
constitutions are life, liberty, contracts and property." Ibid., p
203. One can readily discover that judicial construction had an extraordinarily
large share in giving this sort of a content to the meaning of the Fourteenth
31. Monongahela B. Co. v. United States, 216 U.
S. 177, 195 (1910).
32. Twining v. New Jersey, 211 U. S. 78, 106 (1908).
"We cannot interfere [with a judgment of a state court] unless the
judgment amounts to mere arbitrary or capricious exercise of power, or is in
clear conflict with those fundamental principles which have been established in
our systems of jurisprudence for the protection and enforcement of private
rights." Justice McReynolds in American Ry. Express Co. v.
Kentucky, 273 U. S. 269, 273 (1927).
33. For an extensive list of citations that the
Supreme Court has no right to inquire into the wisdom or justice of the acts of
the federal or state governments, see Robert P. Reeder, "Constitutional
and Extra-Constitutional Restraints," Univ. of Pa. Law Rev., LXI
(May, 1913), 441, 446, 456. Regarding the statements of justices relating to
inalienable rights, fundamental rights, and rights which grow out of the
essential nature of free governments, Mr. Reeder thinks "it is sufficient
to say that the premises upon which they are based have been abandoned by
thoughtful men for over a century, [and] that those statements are against the
vast weight of direct authority." For another summary of judicial opinions
that courts may not pass on the justice or expediency of legislative acts,
consult Cooley, Constitutional Limitations (8th ed.), I, 341 ff.
34. Cooley, Constitutional Limitations (8th
ed.), chap. 21; also Freund, The Police Power: Public Policy and
Constitutional Rights (Chicago, 1904), especially chap. 1.
35. Dillon, Municipal Corporations (5th ed.),
36. Justice Earle, in re Jacobs, 98 N. Y. 98,
no (1885). Due process of law, as a limitation on the police power of the
federal government, was suggested by Chief Justice Taney in Dred Scott
v. Stanford, 19 How. 393, 450 (1856) and referred to in several
dissenting opinions but was consistently repudiated by the federal justices.
Justice Field expressed the prevailing sentiment when he declared that the
Fourteenth Amendment was not "designed to interfere with the power of the
state, sometimes termed its police power." Barbier v. Connolly, 113
U. S. 27, 31 (1885). For reference to additional cases, see Mott, op.
cit., pp. 334, 335.
37. Justice Peckham in People v. Gibson, 109 N.
Y. 389, 400 ff. (1888). Cf. as to the definition of the term
"liberty," citing chiefly Justice Field's opinions in the Supreme
Court and Justice Andrews' opinion in Bertholf v. O'Reilly, 74 N. Y. 509
(1878); in re Jacobs, supra; and People v. Marx, 99 N. Y.
38. Wynehamer v. State of New York, 13 N. Y.
378, 392 ff. (1856).
39. Chief Justice Waite in Stone v. Farmers'
Loan and Trust Co., 116 U. S. 307, 331 (1886) and Justice Brewer in Reagan
v. Farmers' Loan and Trust Co., 154 U. S. 362, 397 (1893).
40. Lochner v. New York, 198 U. S. 45, 56
41. Referring to the decision of the Supreme Court in
Yick Wo v. Hopkins, 118 U. S. 356 (1885) in which a municipal ordinance
was held void because its administration was regarded as arbitrary and
discriminatory, Justice Brown said: "While this was the case of a
municipal ordinance, a like principle has been held to apply to acts of a state
legislature passed in the exercise of the police power." Plessy v.
Ferguson, 163 U. S. 537, 550 (1895). See also Justice Peckham in Lake Shore and
Michigan Southern Ry. Co. v. Smith, 173 U. S. 684, 689 (1899), and in W.
M. & P. R. R. Co. v. Jacobsen, 179 U. S. 287, 297 (1900). The police
power is subject to judicial review and property rights cannot be wrongfully
destroyed by arbitrary enactments. Justice Day in Dobbins v. Los
Angeles, 195 U. S. 223, 236 (1904). Cf. also Justice Harlan in Jacobsen
v. Massachusetts, 197 U. S. 11, 31 (1904); cases cited to sustain this
view are Mugler v. Kansas, 123 U. S. 623, 661 (1887); Minnesota
v. Barber, 136 U. S. 313, 320 (1889); Atkin v. Kansas, 191 U. S.
207, 223 (1903). "The principle involved in these decisions," said
Justice Hughes, "is that where the legislative action is arbitrary and has
no reasonable relation to a purpose which it is competent for government to
effect, the legislature transcends the limits of its power." Chicago,
Burlington & Quincy Ry. Co. v. McGuire, 219 U. S. 549, 569 (1910).
The general result is that specific provisions of constitutions are likely
to be enforced literally but indefinite provisions such as due process of law
and the equal protection of the laws will be applied so as to prohibit
governmental acts which are considered as against natural justice.
No proceeding may be declared invalid "unless in conflict with some
special inhibitions of the Constitution, or against natural justice."
Justice Brewer in Arndt v. Griggs, 134 U. S. 316, 321 (1890).
"Under the Fourteenth Amendment, the legislature is bound to provide a
method for the assessment and collection of taxes that shall not be
inconsistent with natural justice." Justice Brown in Turpin v.
Lemon, 187 U. S. 51, 60 (1902).
42. "A police measure must fairly tend to
accomplish the purpose of its enactment, and must not go beyond the reasonable
demands of the occasion." Cooley, Constitutional Limitations (8th
ed.), II, 1231.
43. Thomas Reed Powell, "The Judiciality of
Minimum Wage Legislation," Harvard Law Review, XXXVII (March,
44. Ray A. Brown, "Due Process of Law, Police
Power, and the Supreme Court," Harv. Law Rev., XL (May, 1927), 943,
45. Brown, op. cit., p. 956. President Goodnow
quotes Professor Seager's conclusion that "the question of the
constitutionality of a restrictive labor law is inseparably connected with the
question of the wisdom of such a law." And then he adds:
"What the courts actually do in cases in which they declare a law of
this sort unconstitutional, is to substitute their ideas of wisdom for those of
the legislature, although they continually say that this is not the case."
Social Reform and the Constitution (New York, 1911), p. 247, and Henry
R. Seager, "The Attitude of American Courts toward Restrictive Labor
Legislation," Political Science Quarterly, XIX (December 1904),
46. James L. Nesbitt, "Due Process of Law and
Opinion," Col. Law Rev., XXVI (January, 1926), 22, 27. The
categorical view of due process of law, Mr. Nesbitt thinks, is best illustrated
in the majority opinion in the Minimum Wage Case, Adkins v.
Children's Hospital, 261 U. S. 525 (1923). When the Supreme Court, under the
due process clause, performs "the function of umpiring the contest between
competing social forces" Mr. Nesbitt finds that three attitudes are in
evidence: first, an abstract standard to determine the line between reasonable
regulation and arbitrary restraint, e. g., Justice Sutherland's opinion in the
Minimum Wage Case; second, a personal standard of the court, such as
that of Chief Justice Taft and Justice Sanford in the same case; and third, a
standard of what others have declared reasonable; see Justice Holmes in
dissent, Lochner v. New York, 198 U. S. 45, 76 (1898).
47. Legislatures may use only such means as are
reasonably designed to deal with existing conditions, Herlihy v.
Donahue, 52 Mont. 601, 610, 161 Pac. 164 (1916); also Mott, op. cit., p.
539. On the way in which the "silence of the original Constitution utters
restraints," see T. R. Powell, "Due Process Tests of State
Taxation," Univ. of Pa. Law Rev., LXXIV (March, 1926), 423, 573.
48. Mott, op. cit., p. 539.
49. Charles Wallace Collins, The Fourteenth
Amendment and the States (Boston, 1912), p. 183. See also summary of Judge
Hough in Harv. Law Rev., XXXII (January, 1919), 229, where it is noted
that from 1868 to the 1910 term of the Supreme Court there were more than four
hundred cases interpreting due process of law alone and less than one hundred
before 1883. From 1890 to 1900 there were one hundred and ninety-seven appeals
under the recent cases relating to corporations, with public service companies
50. See Collins, op. cit., p. 183.
51. The Supreme Court, says Professor Commons, has
legislated by definition: "It changed the meaning of due process of law
and thus amended the federal and every state constitution. It changed the
meaning of property and liberty as used in the Fourteenth Amendment and thus
took over from the states the final determination of what was due process of
law in the regulation of property and business." Legal Foundations of
Capitalism, p. 355. The change in the court's interpretation of the term
"due process of law," Mr. Willis thinks, was brought about
"through the efforts of corporations; through a change in the personnel of
the bench, and through the personal activity of Justice Field, who always
championed this doctrine and who strangely, in writing an opinion for the
Supreme Court, cited his own opinion while a circuit judge as the opinion of
the Supreme Court." Minneapolis Ry. Co. v. Beckwith, 129 U. S. 26
(1898); "Due Process of Law under the United States Constitution,"
Univ. of Pa. Law Rev., LXXIV, 337; and County of San Mateo v.
Southern Pacific Ry. Co., 13 Fed. 722 (1882).
52. Willis, Univ. of Pa. Law Rev., LXXIV, 338.
Mr. Willis claims that by attacking all forms of state legislation before the
Supreme Court corporations are attempting to undermine our dual form of
government. Ibid., p. 342. The Fourteenth Amendment, in the judgment of
Mr. Coffins, was to be a charter of liberty for human rights, but it operates
today to protect primarily the rights of property. It has become the Magna
Carta of organized capital. It "gives to the federal government undefined
and illimitable control over every phase of state activity. It throws into the
hands of the Supreme Court of the United States more power over the states than
does all the rest of the Constitution combined." Collins, op. cit.,
pp. 146 ff.
53. "Due Process of Law — Today,"
Harv. Law Rev., XXXII, 218, 233. For similar judgments regarding the
decline of significance of this phrase, consult Charles Warren, "The
Progressiveness of the United States Supreme Court," Col. Law Rev.,
XIII (April, 1913), 294, and Robert E. Cushman, "The Social and Economic
Interpretation of the Fourteenth Amendment," Michigan Law Review,
XX (May, 1922), 737, 757 ff.
54. Ray A. Brown, op. cit., pp. 943 ff.
55. Ibid., pp. 944, 945.
56. Adkins v. Children's Hospital, 261 U. S.
525 (1923). The committees of both Houses of Congress unanimously recommended
the legislation, House Rep. No. 571 and Senate Rep. No. 562, 65th Congress, 2d
Session. The House of Representatives passed the bill without opposition, and
only twelve votes were recorded against it in the Senate, vol. LVI, Cong. Rec.,
Pt. 9, pp. 8875 ff.; Pt. 10, pp. 10278 ff.; Pt. 12, pp. 604 ff. In the
consideration of this case some extracts are used from an editorial note by the
writer in Texas Law Review, II (December, 1923), 99.
57. 198 U. S. 45 (1904), It is a well-known fact that
in the attempts of the federal courts to define due process of law there has
been much wavering and uncertainty, and dissenting opinions have been
prevalent. The court seldom reverses itself in the interpretation of due
process — it explains, distinguishes, or modifies. The effect is often a
reversal in whole or in part. The uncertainties and misapprehensions are
apparent in the general impression of the bench and bar that the majority
opinion in the Lochner Case had been overruled, and that the court had
adopted the minority views of Justice Holmes and the reiteration of the
majority views in that case by Justice Sutherland, rendering the opinion in
Adkins v. Children's Hospital. See Fletcher Dobyns, "Justice Holmes
and the Fourteenth Amendment," Illinois Law Review, XIII (June,
1918), 71, 92, and Cardozo, The Nature of the Judicial Process (New
Haven, 1922), p. 79.
58. 261 U. S. 554, 555. Referring to Justice
Sutherland's views on the freedom of contract in the Minimum Wage Case,
Powell remarks, "It represents his personal views of desirable
governmental policy. Those views are shared by many others, but they are not
written into the Constitution of the United States except as judges from time
to time have inscribed them there." "The Judiciality of Minimum Wage
Legislation," Harv. Law Rev., XXXVII (March, 1924), 545, 555, 556.
59. 261 U. S. 559.
60. Ibid., 562.
61. See Holden v. Hardy, 169 U. S. 336 (1897),
limiting employment of workmen in mines to eight hours per day; Patterson
v. The Eudora, 190 U. S. 169 (1903), prohibiting masters from paying
seamen in advance; Muller v. Oregon, 208 U. S. 412 (1908), limiting
hours of labor of women employed in laundries to ten hours per day; Riley
v. Massachusetts, 232 U. S. 671 (1914), limiting employment of women in
manufacturing establishments to ten hours per day, or not more than fifty-six
hours per week; Erie Railway Co. v. Williams, 233 U. S. 685 (1914),
prohibiting employers from paying employees less often than semi-monthly;
Bosley v. McLaughlin, 236 U. S. 385 (1915), limiting employment of women
for more than eight hours per day, or more than forty-eight hours per week in
certain designated employments; Bunting v. Oregon, 243 U. S. 426 (1917),
forbidding employment of anyone in mill or factory for more than ten hours per
62. 261 U. S. 567, 568.
63. On the effect of the personal influences in the
decisions of the Supreme Court on labor cases, see Powell, "The
Constitutional Issue in Minimum Wage Legislation," Minnesota Law
Review, vol. II (December, 1917). The reasoning of the court in the
Adkins Case led to a judgment against the validity of the Arizona
Minimum Wage Act and to a condemnation of other meliorative acts. See ex
parte Smith 223 Pac. 971 (1924).
64. Collected Legal Papers, p. 184.
65. "Though neither the doctrine of individualism
nor of laissez faire is contained in the language of the constitution,
they perconstitutionudicial opinions interpreting the constitution."
Powell, "The Constitutional Issue in Minimum Wage Legislation,"
Minn. Law Rev., II, 11. For a different interpretation see Brown,
ibid., I (June, 1917), 471.
66. Burns Baking Company v. Bryan, 264 U. S.
505, 513 (1923).
67. Ibid., 519, 520.
68. 264 U. S. 533, 534.
69. "One who assails the classification [made by
a state legislature] must carry the burden of showing that it does not rest
upon any reasonable basis, but is essentially arbitrary." Justice Sanford
in Whitney v. California, 274 U. S. 357 (1927) citing Lindsley v.
Natural Carbonic Gas Co., 220 U. S. 62, 78, 79 (1910).
70. Mott, op. cit., pp. 562 ff.
71. Tyson and Bro. United Theater Ticket Offices
v. Banton; 273 U. S. 418 (1927). Referring to the failure of the
justices to give due weight to the evidence before the legislature in the case
of Lochner v. New York, 198 U. S. 45 (1905), Sir Frederick Pollock
believes that "the legal weakness of this reasoning, if we may say so, is
that no credit seems to be given to the state legislature for knowing its own
business and it is treated like an inferior court which has to find affirmative
proof of its competence. How can the Supreme Court at Washington have
conclusive judicial knowledge of the conditions affecting bakeries in New York?
If it has not such knowledge as matter of fact, can it be matter of law that no
conditions can be reasonably supposed to exist which would make such an
enactment, not necessarily wise or expedient (for no one attributes to any
court, state or federal, a general jurisdiction to review legislation on the
merits) but constitutional?" "The New York Labour Law and the
Fourteenth Amendment," Law Quarterly Review, XXI (July, 1905), 212.
72. Tyson and Bro. United Theater Ticket Offices 11.
Banton, 273 U. S. 418 (1927). As authority for this view, Wolff Co. v.
Industrial Court, 262 U. S. 522, 536 (1922) was cited.
73. 273 U. S., 433, 434.
74. Fairmont Creamery Co. v. Minnesota, 274 U.
S. 1 (1927).
75. Barron v. Baltimore, 7 Pet 243 (1833). See
comment of Chief Justice Waite in 1876 that "it is now too late to
question the correctness of this construction," and citation of cases,
Harv. Law Rev., XXXIX (February, 1926), 436.
76. Prudential Insurance Co. v. Cheek, 259 U.
S. 530, 538, 543 (1922); Patterson v. Colorado, 205 U. S. 454 (1907).
For the claim that it was the intention of the framers of the Fourteenth
Amendment that the rights and privileges of the first eight amendments should
be the "secure possession of every citizen" of the United States,
beyond the power of any state to abridge," see Guthrie, Lectures on the
Fourteenth Article of Amendment to the Constitution of the United States,
77. New York v. Gitlow, 268 U. S. 652, 666
(1925). Justice Sanford said that the court did not regard the statement quoted
above from the Prudential Insurance Cases as "determinative," but he
does not refer to the other cases in which similar opinions were rendered.
78. See Minor v. Happersett, 21 Wall. 162
(1874), 1; United States v. Cruikshank, 92 U. S. 542 (1875); in
re Kemmler, 136 U. S. 436 (1890); Twining v. New Jersey, 211 U. S.
79. Whitney v. California, 274 U. S. 357
80. United States v. Trenton Potteries Co., 273
U. S. 392 (1927). For applications of the concept of reasonableness in passing
on the validity of combinations in restraint of trade, consult U. S. v.
Trans-Missouri Freight Association, 166 U. S. 290 (1896); Northern Securities
Co. v. United States, 193 U. S. 197 (1903); Standard Oil Co. v.
United States, 221 U. S. 1 (1910); United States v. American Tobacco
Co., 211 U. S. 106 (1910).
"It is submitted that up to the present time very little can be learned
as to the meaning of due process of law from the decisions of the Supreme Court
as to what in its judgment is reasonable and what unreasonable. They neither
give us a rule of law nor a definition." Willis, Univ. of Pa. Law
Rev., LXXIV, 338, 339. See comment how the Supreme Court, in finding a new
meaning for due process of law, made some new constitutional law. P. 339.
81. For comments on one phase of this revolution, see
F. Dumont Smith, "Decisive Battles of Constitutional Law," American
Bar Association Journal, X, 505, and The Constitution: Its Story and
Battles, chap. 15.
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