NATURAL LAW DOCTRINES AID IN CHANGING THE BASIS FOR JUDICIAL
REVIEW OF LEGISLATIVE ACTS
BEGINNING with the dominance
of the Federalist Party over the political affairs of the country after the
inauguration of the federal Constitution in 1789, a tradition was established
which insisted that the continuance of federalism and its control over
political affairs was essential to the political peace and order of the
country, and that anti-federalism tended in the direction of chaos and ruin.
This tradition was fostered in large part through the business and commercial
interests over which Hamilton and his successors held sway. For the greater
part of the nineteenth century the successors of the Federalist Party preserved
the doctrine that peace and order depended upon their control and insisted that
the turning over of the government to their opponents would bring ruin and
disruption to the country.
To prevent an excess of democracy and the disorders supposed to accompany
the people's management of public affairs there was an insistence that one
department of government must not be directly influenced by temporary public
opinion, and it was determined to make the judiciary such a stabilizing
Under the leadership of such men as Chief Justice Marshall, Justice Joseph
Story, and Daniel Webster, it came to be an accepted view that nationalist,
conservative, and commercialist views of American law and politics were looked
upon as sound statesmanship and opposite views were identified with ruin and
disunion. The Republican Party, which became the successor of the old
Federalist and Whig Parties, accepted and fostered the conservative and
capitalist traditions championed by the old Federalist Party. After the program
was inaugurated of applying the resources of the government to economic
development through a liberal land policy, which gave an impetus to the
settlement of the frontier, through subsidies and land grants to railways,
which gave settlers access to world markets, and through protective duties,
which were designed to build up home industries, the party adopted the
principles and practices of the coalition between the commercial and capitalist
interests which were characteristic of the policies of Alexander Hamilton.
Hence the party leaders again asserted the former contention that their control
of the country alone could preserve peace and order.
As the Democratic Party was disrupted through the realignments resulting
from the Civil War it was easy to maintain the position that the turning over
of the government to this party would, as was charged against the
anti-federalists many decades earlier, lead the people in the direction of
political disorder and ruin. The old doctrine is continued in the oft-repeated
claim that the decisions of John Marshall "remain the charter of courts of
justice in the modern republican world: the world of law and constitutional
government. They speak order, power, progress and peace. Had a contrary
conception of civil institutions prevailed, could anything else have followed
than weakness and strife, decay and chaos?" It has become one of the axioms of American
political philosophy that "to maintain the principle that there is a limit
in republican government to the power of the majority to make laws is one of
the most valuable functions the courts have to perform."
1. Conservative Doctrines and Judicial Review of Legislation. The
battle cry of those who believe in conservative doctrines is that every effort
must be made to place limits upon the despotism of the majority.
No device is better designed to accomplish this end than the practice of the
judicial review of legislative acts with a written constitution as an express
guide and with a broad rule of reason as a supplementary weapon of defence. And
a principle of government which was identified with one of the great parties of
American political development has been espoused by the leaders of both major
The conservative reaction, which, among other things, secured the judicial
application of the doctrine of inherent limits on legislative powers and left
its impress upon the Fourteenth Amendment to such an extent as to bring a
change in the federal Constitution greater than all amendments and
interpretations made since 1789, was not the result of any one group, division,
or class of the American people. Like the medley of interests which combined to
make and to secure the adoption of the Constitution, a rather unusual
combination of individuals, groups, and interests joined forces to bring about
a radical change in the adjustment of relations between the nation and the
states. A peculiar set of circumstances, economic, political, social, and
philosophic, gave color to dominant modes of thinking which affected all,
including the justices in state and federal courts. Certain ideas were fostered
and became the stock in trade of the politicians and of the legal fraternity.
It is not surprising, therefore, to find the state and federal justices about
the same time giving form and utterance to the peculiar concept of
"liberty of contract" and to various doctrines of economic
individualism. These ideas were prevalent and the semi-political views of the
justices, meeting a responsive chord in public sentiment, as a rule, were
received with popular approval. The change in the interpretation of the
Fourteenth Amendment, whereby a content was declared involved therein which the
majority of the Supreme Court had repeatedly held was not intended in its
adoption, was the result of the reasoning of many justices, though a few of
this number bore the brunt of the controversy which turned the tide toward a
broad judicial review of legislation.
Three justices seem to have determined, in large part, the trend of the
opinions of the Supreme Court, in the cases changing the meaning and content of
the term "due process of law" and in ushering in a period
characterized as a "carnival of unconstitutionality, which perhaps was at
its height between 1890 and 1910." They were Justices Field, Harlan, and Brewer.
Certain peculiarities and characteristics of these justices made a distinct
impression upon this unique feature of modern American constitutional law.
Foremost of this group is Justice Field.
He had, we are told, a quality of intellect which led him on all occasions
to seek for fundamental and universal principles. His creative power, exhibited in a marked
degree in his legislative career, was also characteristic of his decisions on
the bench. His experience in a
frontier community, as well as his training in early life, developed a
philosophy of individualism in which he was disposed to encourage in every way
individual self-exertion, and to object to measures attempting to regulate
economic life. It was this
philosophy that led Justice Field to object strongly to any exercise of
governmental power which to him seemed arbitrary, and that impelled him to insist that the
Fourteenth Amendment was designed to prevent arbitrary governmental
acts. More consistently than any
other justice, he opposed the inclination of the justices of the Supreme Court
not to give the broadest meaning and application to the due process and equal
protection phrases of the Fourteenth Amendment. He was the spokesman of the
court in some of the leading cases in which the interpretation of the amendment
was changed, and continued on the bench until the reversal of the
Slaughter-House Case and similar cases was accomplished, and until the
amendment was interpreted as at least a negative protection to any interference
with civil or political rights.
Justice Harlan, like Justice Field, was influenced considerably by the
philosophy and experience of the frontier, and he, too, was individualistic in
much of his thinking. He was regarded as a "militant justice," and
was strongly nationalistic in his political theories. Inclined to emphasize the theory of natural
rights he was readily disposed to adopt the doctrine of fundamental rights
which the justices of the Supreme Court were slowly developing in connection
with the interpretation of the due process clause. He had supposed, he said,
that the intention of the people of the United States was to prevent the
deprivation of any legal right in violation of the fundamental principles
inhering in due process of law,
objected to any interference with private property rights, and joined, as a rule, Justice Field in
protesting against the regulative measures of the state legislatures. He agreed
with Justice Field that Congress and the courts ought to be authorized to
exercise a national control over civil rights.
No greater exponent of the individualistic philosophy of this period was
appointed to the Supreme Court than Justice Brewer. In decisions while on the circuit court, and
in his opinions and influence on the Supreme Bench, he availed himself of every
opportunity to defend the extreme individualistic doctrines which prevailed at
this time. His point of view was expressed quite freely in an address delivered
before the graduating class of the Yale Law School in June, 1891, on
"Protection to Private Property from Public Attack." Referring to the
Declaration of Independence and the bills of rights of state constitutions,
Justice Brewer said, "they equally affirm that sacredness of life, of
liberty, and of property, are rights, inalienable rights, anteceding human
government, and its only sure foundation, given not by man to man, but granted
by the Almighty to everyone, something which he has by virtue of his manhood,
which he may not surrender and of which he may not be deprived." To
Justice Brewer, the Declaration of Independence was the cornerstone of the
Justice Brewer also asserted in his address that "the demands of
absolute and eternal justice prevent that any private property legally acquired
or legally held should be subordinated or destroyed in the interests of public
health, morals, or welfare without compensation." The destruction of
property rights, he thought, might be as effectively accomplished by the
regulation of charges, or by the regulation of the use to which property may be
put as by the direct destruction of the property itself. Referring to the
controversy before the Supreme Court, which resulted in the reversal of the
case of Munn v. Illinois, he approved Justice Blatchford's
opinion for reversal with the comment that it "will ever remain the strong
and unconquerable fortress in a long struggle between individual rights and
public greed. I rejoice to have been permitted to put one stone into that
fortress." He approved the doctrine of Chancellor Kent and of Justice
Cooley that legislatures may not disturb vested rights, whether constitutional
provisions prohibit such acts or not, and regretted that the Fourteenth
Amendment had not been interpreted more favorably in the direction of
protecting property rights. The frontier individualistic philosophy of Justices
Field and Harlan had an able defender in Justice Brewer.
Appointed to the court after the change in the interpretation of the
Fourteenth Amendment was under way, Justice Peckham was well suited to become
one of the leading exponents of the conservative and individualistic thinking
of Justices Field, Harlan, and Brewer. As a member of the Court of Appeals of
New York, Justice Peckham not only approved the doctrine of Justice Field that
the due process clause comprehended the inalienable rights referred to in the
Declaration of Independence but he also indicated his inclination to join the
ranks of the laissez faire school and to look with disapproval on the
increasing tendency to regulate economic conditions. When placing the stamp of
disapproval on a state law prohibiting the giving of a gift or reward with the
sale of an article of food, Justice Peckham said:
It is evidently of that kind which has been so frequent of late,
a kind which is meant to protect some class in the community against the fair,
free, and full competition of some other class, the members of the former class
thinking it impossible to hold their own against such competition, and
therefore flying to the legislature to secure some enactment which shall
operate favorably to them or unfavorably to their competitors in the
commercial, agricultural, manufacturing or producing field.
The natural inclination here expressed to hold the legislative power within
"reasonable" limits qualified Justice Peckham to become the spokesman
for the majority in Lochner v. New York and to assert that
it must, of course, be conceded that there is a limit to the
valid exercise of the police power of the state. In every case that comes
before this court, therefore, where legislation of this character is concerned
and where the protection of the federal Constitution is sought, the question
necessarily arises: Is this a fair, reasonable and appropriate exercise of the
police power of the state or is it an unreasonable, unnecessary and arbitrary
interference with the right of the individual to his personal
And on this ground it was held that a particular limitation of the hours of
labor did not come within the police power.
Since the controversy which resulted in changing the meaning of the due
process clause was an issue primarily between the liberal or radical groups and
those imbued with the principles and philosophies of individualism and of
conservatism, the ordinary partisan affiliations of the justices did not have a
controlling influence in bringing about the change. The majority of the
justices who gave a narrow interpretation to the amendment in the decade from
1870 to 1880 were Democrats, a number of whom, as supporters of the Union, had
joined the Republican Party. It was Justice Miller, however, a Republican, and
an intense partisan who usually supported federalist doctrines, who rendered
the opinion of the majority in the Slaughter-House Case; and it was
Justice Field, a Democrat, who gave the minority opinion and pleaded for a
broad interpretation of the amendment. Justice Bradley, a Republican, protested
strongly against judicial review of the legislative power of rate-making and of
public utility regulation. And the effective shift favorable to judicial review
of the regulation of public utilities in the Minnesota Rate Case of 1889
was accomplished with three Republicans and three Democrats forming the
majority and two Republicans and one Democrat the minority. Though the majority
of the justices from 1870 to 1900 were Republicans, Democrats joined with
Republicans in many decisions extending the general terms of written
constitutions and in construing implied limits on legislatures. The truth of
the matter is that, except for some of the differences between the parties left
over from Civil War times and the tariff controversy, leading Democrats and
Republicans looked at political matters from similar viewpoints. The parties
seldom took sides on the vital issues of the day, and, as a rule, their leaders
joined in helping to bring about a covert but effective revolution in federal
and state constitutional interpretation.
The federalism of Marshall, Kent, Story, Cooley, and Dillon suggested ideas
and formulated principles for a political conservatism which American
constitutions were presumed to foster. It remained for the justices of the
Supreme Court, aided by a group of assertive state justices, to turn these
ideas into the channels of a new conservatism and to complete a structure of
constitutional limitations and inhibitions the mere outlines of which had been
previously sketched. The vested rights doctrine and the implied limitations
originally considered as necessary for the protection of such rights took on a
new form and were rounded out and extended by giving new meaning and content to
the contract clause, to the just compensation principle for eminent domain
proceedings, to the public purpose requirement for taxation, and to due process
of law rendered applicable to all forms of legislative and administrative
action, and particularly in so far as property rights might be affected.
In New York the total number of acts or parts thereof invalidated from 1783
to 1905 was three hundred and sixty-three. From 1860 to 1905 the number was two
hundred and ninety-seven and more than one third of this number was declared
void in the decade from 1891 to 1900. Massachusetts courts used their powers
sparingly to review and invalidate acts, only fifty-three acts or parts thereof
being set aside to 1915. Ten of these were held void prior to 1860 and fifteen
in the decade 1891 to 1900.
But more important than the marked increase in the statutes invalidated in
the latter part of the nineteenth century is the basic reason for such a
change. Professor Corwin attributes the extension of judicial review in New
York to the increase in the legislative product, the greater detail of
constitutional provisions, and the development of constitutional doctrine, but
he concludes that "the heart and soul of constitutional limitations in New
York, thanks especially to Chancellor Kent, has been the doctrine of vested
rights" and that the New York courts did constructive work in utilizing
the "due process of law" clause as "a safe vehicle for the
doctrine of vested rights."
Nearly one half of the statutes invalidated in Massachusetts was held in
violation of due process of law or other provisions of the constitution which
were construed as favorable to the protection of vested rights. Evidently the justices had strayed a long
way from the landmarks established in early precedents supporting the power of
judicial review of legislative enactments.
The obvious results of all the implied limitations and correlative ones,
which have amplified and extended the scope of judicial review of legislation,
and the extraordinary expansion of due process of law into a general limitation
applicable to the entire realm of legislation and administration led to a
construction by judicial interpretation of a broad rule of reason as a standard
to test the fairness and reasonableness of legislative enactments, and
incidentally to consider the wisdom or expediency of many governmental acts.
The justices, however, continued to render lip service to the adage that courts
had nothing to do with the wisdom or policy of legislation, their sole duty
being to apply the express language of written constitutions. But express
constitutional limitations with such vague terms as "due process of
law" gave justices a roving commission to disapprove such measures as
seemed to them to change too abruptly some regulation affecting the existing
social or political order, or to presage too radical tendencies, and to seek
refuge for such disapproval behind the indefinite language of express
It is not so much, then, the original language or intent of written
constitutions that is responsible for the unique character of the practice of
judicial review of legislative acts in the United States, as compared with a
similar practice in foreign countries. It is the judge-made constitutional
doctrines supported by the conservative groups of the country and fostered by
the extreme individualism of leaders of industry and finance who, while busily
engaged in securing governmental favors, were solicitous to make sure that
popular assemblies might not be permitted to regulate too freely their property
or contract rights.
It is coming to be better understood today than formerly that methods of
thinking fostered by the common law, supported by the capitalists and
industrial leaders of the country, and applied by conservative-minded judges,
rather than constitutional provisions have given the peculiar trend to judicial
review of legislation in the United States. Though foreign critics of the
American system of government have frequently pointed out this fact, none has
recognized it more clearly or dealt with it so convincingly as Professor
Edouard Lambert, of the University of Lyons. In a recent volume dealing with
certain phases of the problem of judicial review of legislation, he contrasts
the early period of the exercise of this power by American courts — when
the object was to control the competency of the legislature to deal with
certain subjects, and not the way in which the legislature had dealt with the
subjects — and the modern practice of judicial review through which due
process has been interpreted to form a new Magna Carta "built piece by
piece by the judges to protect the free play of individual energies against the
arbitrary manifestations of popular sovereignty."
In the twentieth century, Professor Lambert observes, the American judiciary
is in possession of a power which permits it to exercise an energetic tutelage
over the legislature, and to check the progress of legislation. This tutelage,
he finds, is exercised in passing on the reasonableness of legislative
measures, a well-known rule of reason now applied extensively by federal and
state courts; and second, the criterion of expediency by which the courts pass
on the economic value or political desirability of legislative measures. In the
application of these principles, Professor Lambert thinks that American courts
applying the conservative principles of the common law hold legislative
activities within well-defined bounds. This practice of the courts, he
believes, has had the result to erect a political judiciary against a political
legislature, and often in conflict with it on the most irritating questions of
a changing political and economic order. It is not surprising to find, then,
that it operates to the detriment of the popularity and confidence ordinarily
belonging to courts of justice.
The justices having taken sides on some of the fiercely contested political
issues could expect nothing less than that their decisions would involve the
courts in the maelstrom of party politics.
What is arbitrary and what is beneficent must be decided by common sense
applied to a concrete set of facts. But what criteria except their own
consciences, have judges to guide them, as to what acts are unreasonable,
unfair, discriminatory, outrageous, capricious, and shocking to the moral sense
of mankind?" Is it surprising that the judgments of the individual
justices differ widely as to the application of such vague and indefinite
terms, that dissenting opinions are prevalent, that the courts frequently shift
their positions, and that a feeling of uncertainty prevails as to the
application of the rule of reason or the higher law philosophy supposed to be
comprehended in the Fourteenth Amendment?
When legislation carefully formulated to deal with the complications and
adjustments of the social order and to remedy some of the insistent evils of
present industrial conditions is declared of no effect by a divided court,
against the earnest and caustic protests of the minority justices, in the
application of subjective criteria which constitute no standards at all, it is
not strange that confidence in the judiciary is weakened, and that the leaders
who are seeking to regulate more effectively the economic conditions which are
deemed detrimental to human welfare are disposed to protest against the
unwarranted powers assumed by the judges. "Here is the whole story behind
the failure of all formulae connected with 'due process' and all the
meaningless and circular statements as to what acts are and what are not 'due
process.' In determining whether an act has a substantial and rational or
reasonable relation to the enumerated matters, the court has in mind the
background of 'fundamental principles' which are beyond the reach of any
legislative power." But is it
not natural to expect that those for whom the oracles expound the
"fundamental principles" should believe that the voice of the numen
is not always correctly understood and that in the process of exposition some
of the power once thought to belong to the people or to their representatives
has been silently and surely dissipated?
2. Underlying Purpose of the Revival of the Natural Law Philosophy in
American Constitutional Law. American constitutions were drafted when there
was a deep-seated conviction that the people could not be trusted and that
well-defined checks must be placed upon the rule of the people. It was under
these conditions that the courts with strong popular approval asserted the
right, which they held to be implied from the language of the written
constitution, to declare void legislative acts deemed to be in conflict with
the written fundamental law. A growing distrust for legislative assemblies
encouraged the courts not only to hold invalid acts regarded as contrary to the
express language of the written constitutions, but to construe implied
limitations supposed to be derived from the doctrine of natural and inalienable
rights and from the notion of fundamental individual rights. Again the courts
were encouraged and supported in a continuous line of decisions, mostly
rendered since the Civil War, to place other implied limits on legislative
powers in addition to the varied list of express limitations added by vote of
the people. By extending judicial review of legislation through the developing
doctrine of protecting vested rights, through the change in the meaning of due
process of law, to render it a general limitation on legislative powers, and
through giving new force and meaning to the separation of power
theory, the courts have gradually
assumed a general right of censorship over legislation to see that it is not
arbitrary or unfair and that it does not violate any of the judicially
construed "fundamental principles" of the social order. A mild and
relatively unimportant practice of judicial review of legislation for nearly a
century has during the last few decades loomed up as the controlling feature of
the American system of constitutional government.
The judicial power to declare laws unconstitutional gradually introduced a
new concept of due process by expanding what the courts had been inclined to
regard as the inherent limitations on legislative powers. The doctrine of
inherent limitations on legislatures had been applied at first to the
protection of vested rights. It was a different matter to insist in the name of
due process of law upon an immunity of individual action from legislative
It was such Justices as Field, Harlan, Brewer, and Peckham in the federal
courts and Justices Edwards, Comstock, and Denio in the state courts, the
champions of a revived eighteenth-century individualism, of the policy of
economic laissez faire, and of conservative political tendencies, who
gave the natural rights or modern higher law doctrine the peculiar trend which
now marks the process of constitutional interpretation in state and federal
courts. As upholders of
individualistic and laissez faire doctrines in an age of unceasing
legislative activities the courts were made censors of economic and social
legislation under the higher law doctrine of American constitutional law —
the rule of reason.
Being rather insecure as a basis for legislative limitations, the former
doctrine held a precarious place in American constitutional law, especially
when the tendencies were in the direction of the extension of popular control
over all agencies of government. When, however, this doctrine was absorbed in
the general phrases "due process of law," "equal protection of
the laws," "public purpose for taxation," "public use for
eminent domain," and "reasonableness," it was given the
semblance of express constitutional sanction. Henceforth judges and lawyers
could confidently assert that courts no longer passed upon the wisdom or
expediency of legislative acts. They merely applied in a mechanical way, it was
insisted, the express words of the constitution which by "indubitable
demonstration" compelled the laying of the axe at the root of legislative
power. This change in basis has not affected the character of the higher law
doctrine which constitutes today the central feature of American
constitutional law. A new law of nature and a new rule of reason were in
process of development. Instead, however, of serving as in Roman and in
mediaeval times, as an agency for the liberalization of the law, as an ideal
toward which law was approximating, it became the weapon of a fixed, immutable
order which was designed to serve as a check on progressive or radical
measures, and to restrict within well-defined limits the liberalizing
tendencies which were characteristic of an age of extensive
The repeated assertions, then, by lawyers and judges in the United States
that the right to hold laws invalid because they are unwise or unjust, or
because they run counter to natural and inalienable rights, have never been
applied to concrete cases, may readily be explained.
Before the extensive implications of due process of law and other similar
phrases had been discovered, it was not uncommon for justices to refer to
fundamental principles or natural rights as a basis to invalidate acts. Before
the Civil War, when, on the whole, relatively few acts were held void by the
courts, certain of the decisions invalidating acts were based definitely upon
the doctrine of fundamental rights, the principles of free government, or other
implied limitations related in a sense to the higher law philosophy. Sometimes
constitutional provisions were held applicable; other times there seemed to be
little inclination to seek for appropriate constitutional sanction other than
the general clauses in the bills of rights. But the reason why it is claimed that the
courts have not been passing upon the wisdom or unwisdom of acts under a
natural rights doctrine is due to the fact that the due process clause was
interpreted to include and embody such a doctrine. From that time on, instead
of referring to these general limitations as inherent in all governments, or to
the older theories of natural law, the courts began to refer to "due
process of law," "equal protection of the laws," and other
general terms interpreted to include natural and inalienable rights.
When it is contended, then, that the courts do not pass upon the wisdom or
unwisdom, policy or impolicy, the reasonableness or unreasonableness of
legislative acts it merely means that in the determination of whether an act is
or is not due process of law there is involved the full content of the old
doctrine of natural and inalienable rights, of the principles of the social
compact, and of the former dogmas of free republican governments, all of which
involved questions of political expediency. Having brought the straggling and insecure
phrases of "natural law" or "natural justice" and of the
"fixed principles of republican governments" into due process of law
it was confidently asserted that all decisions of the courts dealing with the
validity of legislative acts were based upon the express provisions of
The conclusion of the matter seems to be that beginning with the
eighteenth-century notions of natural rights and of limiting and dividing
powers, the states of the American union turned in the direction of
unrestricted powers in the hands of the legislative bodies, and then adopted
the policy of placing larger and more effective limits upon legislatures. The
reason for this can be found largely in the belief that legislatures had unduly
interfered with property rights and in the fear that property and contracts
were not safe unless many restrictions were imposed upon representative bodies.
The courts, having invaded the legislative domain by the interpretation of
the general terms of the Fifth and the Fourteenth Amendments, in determining
whether legislation is in effect wise, expedient, or reasonable in its object,
we are now advised that it is futile to criticize what has been done. It is
asserted to be a "question of purely academic interest" whether the
court's version of due process of law was historically correct. The only profitable study is declared to be
when and under what circumstances does the amendment serve as a restriction on
the states. Though the meaning now given to due process of law requires the
courts to deal with problems of legislative policy it is thought to be idle
"to criticize the courts for invading the field of policy in deciding 'due
process' cases. There is nothing else that they can do as long as the doctrine
prevails that these clauses limit the subject matter of legislation. This might
as well be frankly recognized by all concerned."
Such legal pessimism is indefensible. It is equivalent to saying that when
judges choose to take from the people their right of self-government with no
express sanction for such action, there is no remedy but servile submission. It
is possible to amend the Fourteenth Amendment and if the trend of the past
thirty years continues, sufficient groups and interests will be confined by its
limitations to create a sentiment which will render its alteration possible.
Whether such a radical step be desirable or not, the bringing of constant
pressure on the court through all the available avenues of public opinion may
secure a reversal of some decisions which have proved most obnoxious. It does
not seem impossible to secure on the federal bench judges whose training and
experience, according with the prevailing sentiment of the community, may
decide that the historic theory of the separation of powers is still valid and
applies to judges as well as to other officers, and hence, that matters of
social, economic, and political policy belong of right to the legislative
branch of the government. Due process of law might then be retained in somewhat
of its original meaning as a limitation on procedural matters. If, as Professor
Powell observes, the vital matter in the interpretation of the due process
clause of the Constitution is not one of economics, of law, or of public
policy, but of the arbiters who ultimately decide cases, is it not time that more attention be given
to the selection of the arbiters and to the influencing of their work as final
interpreters of the fundamental law? As the repeal of the Fourteenth Amendment
is a remote contingency, the concentration of public attention in the direction
of confining judges to their normal function of deciding cases involving
private rights in accordance with previously determined legislative policies,
rather than of determining the wisdom or expediency of public policies, seems
the only practical procedure. Though it offers small hope of immediate relief
for those who chafe under the restrictions which now interfere with advances
along the lines of social and industrial reconstruction, at least it gives an
objective for the present to take issue with the supporters of the status
quo and the juristic pessimism which they espouse.
3. Types of Natural Law applied in the United States. During the
nineteenth century natural law theories were applied in the United States by
different groups for a variety of purposes. There were occasional references to
the divine sources of law and to natural laws emanating therefrom which were
binding upon all men. In the early decades of the nineteenth century the
justices frequently made use of natural law as a liberalizing and creative
concept similar to its use in Roman times and in the later mediaeval periods.
But its use was creative only in the sense that it facilitated the borrowing of
legal precepts from European legal systems. Conceived as a body of rational
principles of which actual legal rules were only declaratory, the natural law
philosophy, Dean Pound thinks, "was at its best when courts were called on
to utilize the peculiar social and political institutions of pioneer America in
developing and supplementing the legal materials afforded by the English common
law, the Continental treatises on commercial law, and comparative
law." When an attempt was
made to put judicial decisions in the fields of international law or of
constitutional law into a philosophical mold, the law of nature theories of
Grotius, of Pufendorf, of Vattel, or of Burlamaqui were given a meaning
suitable to the legal and political conditions of the time. At times natural
law as a basis of natural rights might be identified with the rights and duties
of an abstract man in a state of nature or perchance with the immemorial common
law rights as formulated by Coke and Blackstone. It might also serve to modify
a rigorous rule of the formal law. "The American variant of natural law
was especially an outgrowth of the review of legislative acts by the courts and
the efforts of the justices to deduce general principles of constitutional law
from the social compact, from the nature of free government, or from the
fundamental and inalienable rights of the individual."
In the hands of American judges natural law ideas were a favorite refuge for
giving sanction to the negative and restrictive ideas of the eighteenth century
that governmental functions should be confined to a narrow sphere. They formed
the background for the American doctrine of civil liberty, the chief purpose of
which is to safeguard individual rights and to place restrictions on political
action to accomplish this end. A legal philosophy was fostered, the chief aim
of which was to support the existing order or to recur to the past for
standards to test the validity of new forms of legislation. This philosophy
assisted in forming what foreign critics have called "the straight
jacket" into which the powers of government had to fit or be denied
These natural laws negative and destructive in effect acquired by the end of
the nineteenth century a stamp of inexorability. They placed certain legal
phenomena beyond the realm of conscious human control and bred a philosophy of
juristic pessimism, which accords well with the practices and beliefs of those
who seek protection but not interference with their "private"
affairs. They became obstacles to the growth and improvement of the law.
American constitutional law is saturated with natural law ideas. The old law
of nature was crystallized into certain standard formulae in the bills of
rights in state and federal constitutions and then was given renewed vigor in
the construction of the general phrases which were made a part of the
fundamental law. Formerly when the statute, code, legal procedure, or some
formal rule in the administration of the law proved to be arbitrary and
unreasonable the law of nature was appealed to as an ideal law to require a
modification of the harsh or unfair rule or to have it set aside as void. The
new law of nature formulated by the justices in American courts affirmed
certain standards of reasonable and fair conduct on the part of government
officers which were presumed to be fixed in the fundamental written law through
such terms as "due process of law" and "the equal protection of
the laws." When legislators and executives undertook to enact or enforce
rules or laws to ameliorate some of the inequities or inequalities in the
existing economic or social order, to regulate conduct in the interest of
classes which are deemed to require special protection, or to regulate and
restrict uses of property in what is deemed to be the public interest, the
justices scanned these acts to see whether they were within the confines of
reasonable and fair conduct as were supposed to be rendered fixed and
unalterable in the written constitution.
As a matter of fact, then, natural law flourishes in the United States
despite the insistence from many quarters that it belongs in the realm of
exploded vagaries. But judges and
courts are applying an historical Naturrecht derived from the principles
and precedents of the common law and modified by the individualist natural law
of the eighteenth century.
Insistent efforts are made to deny the use of general principles or standards
based on natural law reasoning and fictions are used to conceal the process. It
is futile, however, to refuse to face the facts, and "to hide from
ourselves the general principles which we do in fact follow, and to delude
ourselves into the belief that we have no philosophy."
4. Natural Law Theories as a Sanction for American Political and Legal
Conservatism. It is obvious that natural law thinking of various types has
played a significant rôle in the growth of private and public law in the
United States. There have been in this growth new applications of the
principles of fair conduct for a fiduciary, of reasonable conduct in the law of
negligence, of fair competition in business transactions, and of fair value and
reasonable return in public utility control. And in public law the use of
natural law theories for various purposes has been continuous from colonial
times to the present day. Conceived in the spirit of democracy and liberalism,
these theories gave sanction to those who attacked the existing legal order and
who through revolution gained the independence of the American states.
Throughout the early periods of American history the natural law doctrines were
employed mainly for idealistic, progressive, and revolutionary purposes.
But the first stage in this development had not passed when similar
doctrines were approved in order to set limits to governmental action for ends
that were conservative, aristocratic, and authoritarian. As the idealistic and
progressive uses of natural law have declined the conservative and aristocratic
uses have been extended. And it is in the review of legislation by the courts
that the conservative, authoritarian type of natural law has been fostered. The
most significant applications of such higher law ideas have arisen when the
courts have become the constitutional censors of the acts of legislative and
executive action, whether of federal or state agencies.
It is customary to assert that it is a sheer mis-statement to say that
American courts in exercising judicial review of legislation assume a
supervisory power over the legislative and executive branches of the
government. Such an observation
had a modicum of accuracy when the courts held few acts invalid and then only
because they were regarded in conflict with some clear and well-understood
terms of a written fundamental law. Such is the review exercised as a rule over
legislation by the Canadian courts and the Privy Council for Canada and by the
Australian courts. It is a different matter when the courts use phrases such as
due process of law, equal protection of the laws, fair return and reasonable
rates for use of property, acts not arbitrary or capricious or designed to
shock the sense of mankind as grounds for review of legislation. These phrases,
applied as they usually are to a complicated state of facts and used to test
the validity of some act regulating economic or social relationships, take
judicial review out of the inexorable and mechanical realm in which decisions
follow indubitable logic. The reasoning regarding judicial review, which
Hamilton and Marshall attempted to put on a plane of dry logic, fails either to
justify or to explain the practice when based on indefinable general
An analysis of the different provisions of written constitutions shows that
the courts have a variety of types of provisions to interpret. Some provisions,
such as that all political power resides in the people, are political in
character and cannot be tested by ordinary legal criteria. When the legislature
is inhibited from passing bills of attainder or ex post facto laws or
from interfering with individual rights by abolishing trial by jury in criminal
cases there are available to judges for guidance in applying these provisions
fairly definite legal precepts. But these semi-political provisions and the
clauses relating to criminal trials have a relatively minor place in modern
constitutional interpretation by the courts of the United States. For it is
rather legal conceptions derived from the constitutions by interpretation such
as the police power, liberty of contract and of calling, and the general
requirement that no one shall be deprived of life, liberty, or property without
due process of law which now furnish the most important bases for the review of
the validity of legislative acts. And here judges have no legal rules to guide
them. Passing as they often do in these cases on the reasonableness of social
legislation they are essentially dealing with legislative questions — not
with a mechanical legal technique.
The problem of what ought to be law, what is reasonable, arbitrary, or fair,
really is an exercise of veto power. As a matter of fact, the mechanical,
necessitous doctrine which became a tradition in the early period of American
constitutional law does not apply to the invalidating of acts on the ground of
lack of fairness or reasonableness under the Fifth and Fourteenth Amendments of
the federal Constitution or under similar provisions of the state
The acute controversies on the interpretation of the federal Constitution
for the last fifty years have arisen out of the interstate commerce and due
process of law clauses. It has been repeatedly pointed out that the judgments
of the court along these lines are primarily judgments on facts and only
secondarily on the law. Concepts like "liberty" and "due
process" are too indefinite to solve issues. They derive meaning only if
referred to human facts.
"Here is where the great practical evil of the doctrine of immutable and
necessary antecedent rules comes in," according to John Dewey, "it
sanctifies the old; adherence to it in practice constantly widens the gap
between current social conditions and the principles used by the courts. The
effect is to breed irritation, disrespect for law, together with virtual
alliance between the judiciary and entrenched interests that correspond most
nearly to the conditions under which the rules of law were previously laid
Only the misinformed or extreme partisans claim any longer that there was
any necessity in the adoption of a written constitution, as John Marshall
insisted, for courts to review the validity of legislative acts. Partisan
feelings and self-interest also account for the failure to admit that much the
more important phases of judicial review of legislation in the United States
are the result of judge-made limitations designed to give legal sanction to
conservative tendencies of the time. It is not surprising then to find
conservative leaders insistent on the maintenance and extension of the powers
of the courts. "There are today," said Justice Brewer before the New
York State Bar Association,
ten thousand millions of dollars invested in railroad property,
whose owners in this country number less than two million persons. Can it be
that whether this immense sum shall earn a dollar or bring the slightest
recompense to those who have invested perhaps their all in that business and
are thus aiding in the development of the country, depends wholly upon the whim
and greed of the great majority of sixty millions who do not own a dollar! I
say that so long as constitutional guarantees lift on American soil their
buttresses and bulwarks against wrong, and so long as the American judiciary
breathes the free air of courage it cannot.... What then is to be done? My
reply is, strengthen the judiciary.
Not only have the courts construed constitutional guarantees to protect the
property interests of corporations but in an epoch-making decision the Supreme
Court of the United States has also held that legislative and administrative
agencies in regulating public utilities and in fixing rates must be subject to
review by the courts on both the law and the facts in order that governmental
action affecting utility properties may not be unreasonable and that their
properties may not be confiscated. Such a decision has placed upon the courts
ultimately the examination of the intricate processes of the valuation of
public utilities, the determination of what is a fair value of the property for
rate making, what is a fair return on this valuation, and what is reasonable
regulation. Thus great questions of legislative policy as to the regulation of
utilities are carried to the courts and what the ultimate methods of regulation
may be are determined by the standards which the justices lay down. Since
courts are better qualified to protect property rights than to preserve
individual privileges and the public good, the owners of public utilities have
been encouraged to defy the authority of the government.
In recognition of the influence of personal and individual factors in the
legislative activity of judges such standards as fair return, reasonable care,
and due diligence are applied in England by administrative boards or by courts
with a jury passing judgment on the facts. The English people have never
accorded to judges the authority to determine the validity of legislative acts
no matter how fundamental the rights of the individual which might be invaded.
There is in this regard a striking difference between the practice of the
English and of the American courts.
Because of the natural conservatism and the class bias of judges the English
people have surrounded judicial legislation with definite limitations and have
invariably preserved the corrective power of Parliament. The reasons for these
checks on the legislative powers of the courts are thus expressed by two
The courts or the judges, when acting as legislators, are, of
course, influenced by beliefs and feelings of their time, and are guided to a
considerable extent by the dominant current of public opinion; Eldon and Kenyon
belonged to the era of old Toryism as distinctly as Denman, Campbell, Erle and
Bramwell belonged to the age of Benthamite liberalism. But whilst our
tribunals, or the judges of whom they are composed, are swayed by the
prevailing beliefs of a particular time, they are also guided by professional
opinions and ways of thinking which are to a certain extent independent of and
possibly opposed to the general tone of public opinion. The judges are the
heads of the legal profession. They are advanced in life. They are for the most
part persons of a conservative disposition. They are in no way dependent for
their emoluments, dignity, or reputation upon the favor of the electors, or
even of ministers who represent in the long run the wishes of the electorate.
They are more likely to be biased by professional habits and feeling than by
the popular sentiment of the hour. Hence, judicial legislation will often be
marked by certain characteristics rarely found in acts of Parliament.
The habits you are trained in, the people with whom you mix,
lead to your having a certain class of ideas of such a nature that, when you
have to deal with other ideas, you do not give as sound and accurate judgment
as you would wish. This is one of the great difficulties at present with
Labour. Labour says: "Where are your impartial Judges? They all move in
the same circle as the employers and they are all educated and nursed in the
same ideas as the employers. How can a labour man or a trade unionist get
impartial justice?" It is very difficult sometimes to be sure that you
have put yourself into a thoroughly impartial position between two disputants,
one of your own class and one not of your class.
When due process of law and the equal protection of the laws are under
interpretation the determination of the issues involved depend "in large
part upon the composition of the court of last resort at the particular time
when the issue comes before it."
Governments were in process of formation in the United States when
eighteenth-century ideas of checking and dividing powers were uppermost in
political thought. John Randolph thought it was necessary to base governments
on the doctrine of original sin and the natural depravity of the human race and
to devise restraints accordingly.
From such a philosophy there was evolved the dictum that what was desired was a
"government of laws and not men" — or in English phraseology the
supremacy of the laws.
Professor Dicey regarded the supremacy or rule of law as a characteristic of
the English constitution and explained that "it means, in the first place,
the absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary power and excludes the existence of arbitrariness, of
prerogative, or even of wide discretionary authority on the part of the
government." That there is a
decline in the recognition accorded to the rule of law, Dicey
recognizes. Coincident with this
change in the English legal system there is a noteworthy effort to foster the
sanctity of this rule as the central principle of constitutional government in
the United States.
The doctrine of judicial review of legislative enactments is regarded as a
practical and effective device to extend the rule of law. It has become part of
the creed of those who desire to apply the rule of law to all spheres of
government or to limit the omnipotent sovereign by a higher law either of a
fixed and immutable kind or of a variable content. If Lord Acton is correct in
the assertion that "the great question is to discover not what governments
prescribe but what they ought to prescribe," jurists are likely to turn to
the American practice of judicial review of legislative acts as a practical
means of enforcing the principles of a variable natural law, though few will
favor the adoption of such a practice if a natural law of an eighteenth-century
type is to be applied by justices who regard the principles of this law as
Denying that they are applying anything but the express terms of written
constitutions the justices of higher courts in the United States have in effect
created a super-constitution, a superior law which in certain respects
is regarded as unchangeable by the people themselves. Safely intrenched as the
sole interpreters of this super-constitution they have determined what
is wise or unwise for the representatives of the people to undertake in the
realm of political experiment.
When a type of political action is not liked it may readily be condemned as
capricious or arbitrary or unreasonable.
The warnings of the great constitutional lawyer, James Bradley Thayer,
however, may well cause us to ponder on the tendency to lean too heavily on the
Great and, indeed, inestimable, as are the advantages in a
popular government of this conservative influence, — the power of the
judiciary to disregard unconstitutional legislation, — it should be
remembered that the exercise of it, even when unavoidable, is always attended
with a serious evil, namely the correction of legislative mistakes comes from
the outside, and the people lose the political experience, and the moral
education and stimulus that come from fighting the question out in an ordinary
way, and correcting their own errors. If the decision in Munn v.
Illinois, and in the "Granger Cases," twenty-five years
ago, and in the "Legal Tender Cases," nearly thirty years ago,
had been different; and the legislation there in question, thought by many to
be unconstitutional and by many more to be ill advised, had been set aside, we
should have been saved some trouble and some harm. But I venture to think that
the good which came to the country and its people from the vigorous thinking
that had to be done in the political debates that followed, from the
infiltration through every part of the population of sound ideas and
sentiments, from the rousing into activity of opposing elements, the
enlargement of ideas, the strengthening of moral fibre, and the growth of
political experience which came out of it all, — that all this far more
than outweighed any evil which ever flowed from the refusal of the court to
interfere with the work of the legislature.
The tendency of a common and easy resort to this great function, now
lamentably too common, is to dwarf the political capacity of the people, and to
deaden its sense of moral responsibility. It is no light thing to do that.
What can be done? It is the courts that can do most to cure the evil; and
the opportunity is a very great one. Let them resolutely adhere to first
principles. Let them consider how narrow is the function which the
constitutions have conferred on them, — the office merely of deciding
litigated cases; how large, therefore, is the duty entrusted to others, and
above all to the legislature. It is that body which is charged, primarily, with
the duty of judging of the constitutionality of its work. The constitutions
generally give them no authority to call upon a court for advice; they must
decide for themselves, and the courts may never be able to say a word. Such a
body, charged, in every State, with almost all the legislative power of the
people, is entitled to the most entire and real respect; is entitled, as among
all rationally permissible opinions as to what the Constitution allows, to its
own choice. Courts, as has often been said, are not to think of the
legislators, but of the legislature, — the great, continuous body itself,
abstracted from all the transitory individuals who may happen to hold its
power. It is this majestic representative of the people whose action is in
question, a coordinate department of the government, charged with the greatest
functions, and invested, in contemplation of law, with whatsoever wisdom,
virtue, and knowledge the exercise of such functions requires.
To set aside the acts of such a body, representing in its own field, which
is the highest of all, the ultimate sovereign, should be a solemn, unusual, and
painful act. Something is wrong when it can be other than that. And if it be
true that the holders of legislative power are careless of evil, the
constitutional duty of the court remains wholly untouched; it cannot rightly
undertake to protect the people by attempting a function not its own. On the
other hand, by adhering to its own place a court may help, as nothing else can,
to fix the spot where responsibility rests, viz., on the careless and reckless
legislators, and to bring down on that precise locality the thunderbolt of
popular condemnation. The judiciary, today, in dealing with the acts of
co-ordinate legislatures, owes to the country no greater or clearer duty than
that of keeping its hands off these acts whenever it is possible to do it. That
will powerfully help to bring the people and their representatives to a sense
of their own responsibility.
Under no system, Thayer thinks, can the courts go far to save the people
from ruin. We are much too apt to think of the judicial power of disregarding
acts of the other departments as our only protection against oppression and
ruin. But it is remarkable how small a part this played in any of the debates
on the federal Constitution. The chief protections were a wide suffrage, short
terms of office, a double legislative chamber, and the so-called executive
The judges have insisted that when in doubt the courts should interpret
constitutional provisions favorable to legislative powers. If this principle
had been followed there would have been scant foundation for the construction
of implied limitations on legislatures; and due process of law would have had
slight effect on substantive legislative powers. Numerous opinions of the
Supreme Court give indisputable evidence that the Fourteenth Amendment need not
have been interpreted so as to greatly narrow the field of state legislation. A
continuous line of dissents by the justices of the court in due process cases
indicates that on a fair interpretation of the language of the amendment the
states might have been allowed much greater freedom in the realm of social and
economic legislation. The distinction is sometimes not clearly recognized that
the construction of an implied power doctrine by which constitutional
provisions are adapted to new conditions is justifiable as a principle of legal
growth, whereas the interpretation of a doctrine of implied limitations as a
means to retard and confine legal development is indefensible.
Though the religious and metaphysical concepts of natural law, since the
eighteenth century, have had relatively slight influence in the growth of law
in the United States, natural law as an ideal has been a not insignificant
factor in the minds of judges and legislators as they were molding into a
system the legal materials at hand so as to meet the social, economic, and
political conditions of the day. And at the time that the theories of the
Positivist School of jurisprudence were prevailing, which denied the potency of
any natural law ideas, a pragmatic trend in American legal philosophy was
giving a new turn to the application of natural law theories. When, through the
prevalence of pioneer ideas and ideals, governments were made more democratic
and were gradually encouraged to extend their control over many heretofore
unregulated phases of economic life restraints were sought to place
restrictions on the zealous activities of popularly elected representative
bodies. It was then that the moral obligation to govern reasonably and justly
was translated into legal phraseology by means of the old common law precept
— due process of law.
But instead of conceiving the moral duty to govern reasonably as an ideal to
which law was expected to conform in meeting the needs of a growing community
as conditions changed, it was thought of as a standard to protect the interests
of certain classes. Due process of law was to accord justice not as required by
the varying conditions of an increasingly complex economic life but justice
designed to make more secure the property or other interests of those
intrenched in power. By requiring certain formal criteria for all legislative
and administrative action the status quo economically would not be too
rudely or radically disturbed. Social and economic conditions might be
regulated within limited areas as long as due care was taken to leave certain
classes of property rights undisturbed. Due process of law became the weapon
for the application of a class reason and a class justice.
Building on the foundations of Wilson, Hamilton, Marshall, and Webster,
Justices Chase, Kent, Story, Cooley, with the aid of other justices in state
and federal courts, constructed a check which the conservative classes were
demanding. In applying Marshall's notable dictum that this was "a
government of laws and not of men" a criterion was evolved by which judges
exercised a selective process as to what were, in their judgment, properly
called "laws" and in this selective process the courts had in mind
"a background of fundamental principles" which are beyond the reach
of any legislative power.
The modern American theories of natural law embodied as integral parts of
constitutional due process of law and equal protection of the laws are
essentially theories in terms of "the self-interest of the socially and
economically dominant class." Former theories, which were used to good
advantage when the English common law and the principles of Continental law
were adapted to the conditions of pioneer rural American conditions, have
become obstacles to change, devices to sanctify the existing legal order, and
sanctions for the maintenance of the status quo in the regulations of
economic and social conditions.
The avowed use of reasonableness and other concepts related to natural law
by the Justices of the Supreme Court of the United States in a single year
(October term, 1924) demonstrates the prominent place such ideas have acquired
in federal constitutional interpretation.
The fee fixed by a state act is arbitrary and the number of shares is
not a reasonable basis for the classification of foreign corporations
for the determination of an annual fee.
There is no suggestion of a flagrant abuse or purely arbitrary
exercise of taxing power.
The Court will review a case only-when there is a question of law or when
action under a law is "clearly arbitrary or
An assessment is not inherently arbitrary — no
State assessments are valid unless "palpably arbitrary or a
plain abuse of power" or result in a "manifest and
The action of a state utility commission must not pass beyond the bounds of
what is reasonable and suitable.
The order of a utility commission is not "inherently
An award of the Secretary of the Interior is held not "arbitrary
or capricious or fraudulent or an abuse of discretion."
An order of a utility commission is held "arbitrary" and
The Fourth Amendment condemns unreasonable searches and seizures. A
search of an automobile for probable cause is held reasonable.
The method of classification adopted in the Federal Income Tax is held not
"merely arbitrary and capricious."
There is not an unreasonable interference with the liberty of
Classification for state taxation is held reasonable and valid when
it does not result in flagrant and palpable inequalities.
A power exercised by Congress must be reasonably adapted to the
effective exercise of delegated powers.
A provision was not so "unreasonable as to be a purely
arbitrary mandate." 
An inference allowed by law is held not "fanciful, arbitrary or
A rule of a utility commission is declared arbitrary and
unjust. Utility rates if unreasonable need not be confiscatory to
The court will give relief for arbitrary, unreasonable, and
unlawful interference with business and property and unreasonable
interference with the liberty of parents and guardians in bringing up
There was no evidence of arbitrary or unfair action
State acts are unconstitutional only when they are arbitrary or
unreasonable attempts to exercise authority vested in the state. A
statute is not an arbitrary or unreasonable exercise of police
Claims of unreasonable and arbitrary action, hostile discrimination, or
purely arbitrary exercise of power were made in numerous other cases passed on
by the court.
October Term, 1924
Total cases under the Fifth and Fourteenth Amendments 45 cases
A. Denial of due process of law under the Fourteenth Amendment distributed
as follows: 27 cases
- State act or part of act held valid 8
- State act or part of act held invalid 3
- State administrative proceeding or order held valid 11 (relief denied 1)
- State administrative proceeding or order held invalid 3
- Judicial proceedings held valid 1
- Denial of equal protection of laws 1
B. Denial of due process of law under the Fifth Amendment distributed as
follows: 16 cases
- Act of Congress held valid 4
- Act of Congress held invalid 0
- Administrative proceedings held valid 7
- Administrative proceedings held invalid 3
- Judicial proceedings held valid 2
- Decisions based on other provisions of Constitution (due process of law
incidental) 2 cases
C. Grounds for appeal under due process provisions
1. Attempt to protect personal rights
| Fourteenth Amendment
- Individuals are granted relief in 5 cases
2. Corporations attack tax proceedings 11
- Corporations attack public utility regulations 7
- Corporations secure relief in 10 cases
1. A. J. Beveridge, The Life of John Marshall,
2. F. N. Thorpe, "Hamilton's Ideas in Marshall's
Decisions," Boston University Law Review, I (1921), 9.
3. Edward Q. Keasbey, "The Courts and New Social
Questions," Maryland State Bar Association Proceedings (1911), p
4. Dillon, Laws and Jurisprudence of England and
America, p 204.
5. Pound, "The Growth of Administrative
Justice," Wisconsin Law Review, II (January, 1924), 327.
6. George C. Gorham, Biographical Notice of Stephen
J. Field, p. 63.
7. Gorham, op. cit., p. 64.
8. Felix Frankfurter, "Twenty Years of Mr.
Justice Holmes' Constitutional Opinions," Harvard Law Review, XXXVI
(June, 1923), 909; Pound, "Liberty of Contract," Yale Law
Journal, XVIII (May, 1909), 454, 470; and The Spirit of The Common
Law, p. 49.
9. Ex parte Wall, 107 U. S. 265 (1882).
10. Bartemeyer v. Iowa, 18 Wall. 129 (1873).
11. An able associate of Justice Field during the
short term he served on the court was Justice Strong. He not only joined Field
in his dissents condemning the legislative power to control property rights,
but also became an advocate of the federalist doctrine favorable to the
protection of vested rights, which, he claimed, "no matter how they arise,
they are all equally sacred, equally beyond the reach of legislative
interference." Sinking Fund Cases, 99 U. S. 700 (1878).
12. F. B. Clark, The Constitutional Doctrines of
Justice Harlan, Johns Hopkins University Studies, XXXIII (Baltimore, 1915),
13. Taylor v. Beckham, 178 U. S. 548, 601
(1899), and Clark, op. cit., p. 75. "The doctrine of legislative
absolutism is foreign to free government as it exists in this country,"
thought Justice Harlan. Ibid., p 609.
14. Norwood v. Baker, 172 U. S. 269 (1898).
15. Clark, op. cit., p. 144.
16. Justice Hough comments on the changing personnel
at this time which brought to the court in Justice Brewer "a powerful
reinforcement of the school of Field." Harv. Law Rev., XXXII, 228.
17. Obviously this was not thought to be the case with
those who drafted the instrument, or those who directed political affairs when
it was put into operation. Nor was this belief prevalent among the federalist
leaders who controlled the government during the fifty odd years that this
party was in power in one or more branches of the federal government. It
remained for the period after the Civil War, and for such defenders of the
individualistic faith as Justices Field and Brewer, to discover that the
Declaration was the cornerstone of the Constitution. See Carl Becker, The
Declaration of Independence (New York, 1922).
18. People v. Gillson, 109 N. Y. 389, 398, 399
19. 198 U. S. 45 (1904).
20. For approval of the doctrine of this case see the
opinion of Justice Sutherland in Adkins v. Children's Hospital, 261 U.
S. 525 (1922).
21. See Edward S. Corwin, "The Extension of
Judicial Review in New York," Michigan Law Review, XV (February,
22. James M. Rosenthal, "Massachusetts Acts and
Resolves Declared Unconstitutional by the Supreme Judicial Court of
Massachusetts," Massachusetts Law Quarterly, I (August, 1916), 303
23. Corwin, op. cit., pp. 303, 304.
24. Rosenthal, op. cit., p. 317.
25. Justice Woodward commented on the caution of the
courts prior to the Civil War in exercising the right to invalidate acts in
Pennsylvania as follows: "For nearly fifty years of our political
existence under the Constitution of 1790, no act of assembly was set aside for
unconstitutionality; judges claimed the power, and said they would exercise it
in clear cases, but in all that period no case arose which in their judgment,
was clear enough to justify the exercise of the power; and it is well known
that that great light of this bench so recently extinguished [Chief Justice
Gibson] stood opposed for many years to the existence of any such power. Since
the Constitution of 1838 was adopted several acts of assembly have been
declared unconstitutional, but they were all clear cases." Sharpless
v. Mayor of Philadelphia, 21 Penna. St. 148, 183 (1853).
26. Dr. Mott thinks the courts regard the Fourteenth
Amendment as "a constitutional ideal." Due Process of Law, p.
360. This is equivalent to the view that the amendment is used to write into
the fundamental law the ideals which the justices believe ought to prevail.
According to Justice Holmes due process of law ought not to become "a
pedagogical requirement of the impracticable." Dominion Hotel v.
Arizona, 249 U. S. 265, 268 (1918).
27. Le gouvernment des juges et la lutte centre la
legislation sociale aux États-Unis (Paris, 1921), pp. 32, 33, 41;
also pp. 220, 221. See also, Edouard Lambert and Halfred C. Brown, La lutte
judiciaire du capital et du travail organisés aux États-Unis
According to Professor Powell the "law of constitutional due process is
therefore as much judge-made law as any common law is judge-made law."
"The Judiciality of Minimum Wage Legislation," Harv. Law Rev.,
XXXVII, 545, 546.
28. Lambert, op. cit., pp. 53, 55, 60.
29. Cuthbert W. Pound, "Constitutional Aspects of
Administrative Law," in The Growth of American Administrative Law
(St. Louis, 1923), p. 103.
30. A. M. Kales, "'Due Process,' the Inarticulate
Major Premise and the Adamson Act," Yale Law Jour., XXVI (May,
31. According to Stephen Leacock, "American
democracy, having by its degradation of the legislature repudiated its first
born child has set up for itself the Mystic Worship of Judicial
Interpretation." "The Limitations of Federal Government,"
American Political Science Association Proceedings (1908), p. 51.
32. Warren H. Pillsbury, "Administrative
Tribunals," Harv. Law Rev., XXXVI (February and March, 1923), 405,
33. For laissez faire theories, see People
v. Coler, 166 N.Y. 1, 16-18, 23-25 (1901), and Ives v. South
Buffalo Ry. Co., 201 N.Y. 271, 285-287, 203-295 (1911). The right to take
property by will was held to be an absolute and inherent right in Nunnemacher
v. State, 129 Wis. 190, 198, 203 (1907); and the right of privacy was
considered as "derived from natural law" by Justice Cobb in Pavesich
v. Life Ins. Co., 122 Ga. 190, 194 (1905).
34. Speaking of the dangers of socialism and
communism, Mr. Guthrie says," Much is to be dreaded and guarded against in
the despotism of the majority wielding and abusing the power of legislation,
and ignorantly or intentionally undermining the foundations of the Constitution
itself ... the Fourteenth Amendment is the bulwark on which we place our
reliance." Lectures on the Fourteenth Amendment to the Constitution of
the United States, pp. 30, 31. He admonishes the lawyers "to realize
their duty to teach people in season and out of season to value and respect
individual liberty and the rights of property." Ibid., p. 32.
35. For a summary of leading decisions, see "The
Law of Nature in State and Federal Judicial Decisions," Yale Law
Jour., XXV (June, 1916), 617.
36. In declaring a law unconstitutional, a court must
necessarily cover the same ground which has already been covered by the
legislative department in deciding upon the propriety of the enactment. Cooley,
Constitutional Limitations (8th ed), I, 334.
37. "The Justices of the United States Supreme
Court have taken counsel together regarding the present political tendencies,
so far as they seem to the Justices to menace the Constitution, and have
determined that upon the Supreme Court rests the burden of standing between the
Constitution and popular passion." Quoted by Richard Olney, in
"Discrimination against Union Labor — Legal?" American Law
Review, XLII (March-April, 1908), 161; sec. 43 Cong. Rec. Pt. I, 20-22,
message of President Roosevelt.
The change in the meaning of the terms "liberty" and
"property" as used in the Constitution from the narrow implications
of physical liberty and property to economic liberty, was "the reflection
in the minds of the judges of the business revolution which followed the
extension of markets and the political revolution that liberated the
slaves." John R. Commons, Legal Foundations of Capitalism, p. 283.
38. Ray A. Brown, "Due Process of Law, Police
Power, and the Supreme Court," Harv. Law Rev., XL (May, 1927), 947.
Cf. emergence of the court's doctrine through Slaughter-House Cases, 16 Wall.
36 (1872); Bartemeyer v. Iowa, 18 Wall. 129 (1873); Missouri Pacific Ry.
v. Humes, 115 U. S. 512 (1885), and Mugler v. Kansas, 123 U. S. 623
39. Henry Rottschaefer, "The Field of
Governmental Price Control," Yale Law Jour., XXXV (February, 1926),
40. Thomas Reed Powell, op. cit., p. 545.
41. The real object at present of the due process
clauses of the federal Constitution is to enable the Supreme Court to determine
whether acts of Congress or of the state legislatures are reasonable. Cf.
Willis, op. cit., pp. 338, 339. Mr. Willis suggests an addition to the
Fourteenth Amendment to the effect that the due process clause shall not be
interpreted to include matters of substantive law. Ibid., pp. 343, 344.
42. "The Theory of Judicial Decision,"
Harv. Law Rev., XXXVI (May, 1923), 808.
43. Cf. Pound, An Introduction to the Philosophy of
Law (New Haven, 1922), pp. 50-52.
44. "The objection to this view is that the court
must judge by a standard of fairness that is not, and could not be, definitely
expressed in the Constitution. This, of course, is the fundamental difficulty
in all due process cases. Groping for some standards, the courts are tempted to
revert to the old language of natural rights, as though such rights were an
over-law above the Constitution itself." Note on the case of Moore
v. Dempsey, Harv. Law Rev., XXXVII (December, 1923), 250.
"No state can make or enforce any laws which shall, upon proper
proceedings, be deemed unreasonable by a majority of the Supreme Court ... the
rule of reason alone governs. What are fair profits, what are excessive taxes,
what are proper health laws, what is confiscation and what discrimination;
— these are questions which cannot be answered in the abstract, nor can
they be adequately defined by precedents." Collins, The Fourteenth
Amendment and the States, p. 109.
45. "All nineteenth century theories of judicial
decision," says Dean Pound, "in one way or another grow out of the
natural law thinking of the seventeenth and eighteenth centuries."
"The Theory of Judicial Decision," Harv. Law Rev., XXXVI (May,
46. Cf. Pound, The Spirit of the Common Law, p.
37. "With us the basis of all deduction is the classical common law —
the English decisions and authorities of the seventeenth, eighteenth and first
half of the nineteenth centuries. Our jurists have made of this a very
Naturrecht. They have asked us to test all new situations and new
doctrines by it.... More than this, through the power of courts over
unconstitutional legislation and the doctrine that our bills of right are
declaratory, courts have forced it upon modern social legislation." Pound,
in Harv. Law Rev., XXIV (June, 1911), 601.
47. M. R. Cohen in Introduction to Pierre de
Tourtoulon, Philosophy in the Development of Law, trans. by Martha Read,
Modern Legal Philosophy Series, XIII (New York, 1922), 24.
48. "The influence of the conception of natural
rights on legal development in the United States has been to support the
position of a reactionary, dominant, propertied class." James Mickel
Williams, The Foundations of Social Science (New York, 1920), p. 245.
49. John H. Clarke, "Judicial Power to Declare
Legislation Unconstitutional," American Bar Association Journal, IX
(November, 1923), 691.
50. For the claim that logic alone guides judges in
reviewing the validity of legislative acts see opinion of Justice White, that
"no instance is afforded from the foundation of the government where an
act, which was within a power conferred, was declared to be repugnant to the
Constitution, because it appeared to the judicial mind that the particular
exertion of constitutional power was either unwise or unjust." McCray
v. United States, 195 U. S. 27, 54 (1904). "August as are the
functions of the Supreme Court," says John W. Davis, "surely they do
not go one step beyond the administration of justice to individual
litigants." "Present Day Problems," Amer. Bar Assoc.
Jour., IX (September, 1923), 557.
51. Cf. Felix Frankfurter, "A Note on Advisory
Opinions," Harv. Law Rev., XXXVII (June, 1924), 1002, and
especially list of cases turning on facts; also Henry Wolf Biklé,
"Judicial Determination of Questions of Fact affecting Constitutional
Validity of Legislative Action," Harv. Law Rev., XXXVIII (November,
52. "Logical Method and Law," Cornell Law
Quarterly, X (December, 1924), 26.
53. A. V. Dicey, Lectures on the Relation between
Law and Public Opinion in England during the Nineteenth Century (New York,
1905), pp. 361, 362.
54. Lord Justice Scrutton, "The Work of the
Commercial Courts," Cambridge Law Journal, I, 6, 8. For the opinion
that the House of Lords as a supreme judicial body is "in entire good
faith, the unconscious servant of a single class in the community," see
Harold J. Laski, "Judicial Review of Social Policy in England,"
Harv. Law Rev., XXXIX (May, 1926), 848.
55. Powell, Harv. Law Rev., XXXVII, p. 546.
Combating the doctrine that the judges should be made the ultimate arbiters of
all constitutional questions, Jefferson wrote: "This is a very dangerous
doctrine indeed, and one which would place us under the despotism of an
oligarchy. Our judges are as honest as other men and not more so. They have,
with others, the same passions for party, for power and the privilege of their
corps. Their maxim is 'boni judicis est ampliare jurisdictionem,' and their
power the more dangerous as they are in office for life, and not responsible,
as the other functionaries are, to the elective control." To William
Charles Jarvis, Sept. 28, 1820; also to William Johnson, June 12, 1823.
56. Cf. 10th Cong., 1st Sess. (Nov. 13, 1807),
Jefferson also observed: "In questions of power, then, let no more be
heard of confidence in man, but bind him down from mischief by the chains of
57. A. V. Dicey, Introduction to the Study of the
Law of the Constitution (8th ed., London, 1915), p. 198.
58. Ibid., Introduction, pp. xxxvi ff.
59. "The American democracy in political and
social matters is made to accord strictly with extreme conservatism and
considers its foundation at the same time as an eternal divine moral and legal
order." Ernst Troeltsch, Naturrecht und Humanitat in der
Weltpolitik (Berlin, 1923), p. 6.
60. Thayer's Marshall, pp. 103, 110, and
Legal Essays (Boston, 1908), pp. 39-41.
61. Ibid., p. 64; Legal Essays, pp.
11-12. For weaknesses of Marshall's reasoning in the Marbury Case, consult
Thayer, Legal Essays, p. 15.
62. Speaking of the theories which justices have read
into the Fourteenth Amendment, Dean Pound says, "A theory that legislators
and courts are but the mouthpieces through which the dominant class makes its
will effective, a theory of law in terms of the self-interest of the socially
and economically dominant class, a theory that the jurist may do no more than
observe and record the phenomena of the transitional stage of hopeless conflict
while one class is gaming the upper hand at the expense of its predecessors in
the economic and social order — such a theory is more threatening to the
general security than any of the recent modifications and adaptations of the
atomistic individualism of the eighteenth century of which recent legislation
has been so fearful." Harv. Law Rev., XXXVI (May, 1923), 824. See
also G. C. Henderson, The Position of Foreign Corporations in American
Constitutional Law (Cambridge, 1918), p. 163.
63. A. M. Kales, op. cit., p. 526.
Referring to the decisions of the Supreme Court in the Hitchman and
Coppage Cases, Professor John R. Commons says, "It is the judge who
believes in the law and custom of business and not the judge who believes in
the law and custom of labor, that decides." And, he notes, it is not logic
but beliefs which are the determining factors in such decisions. Op.
cit., p. 298.
64. Cf. Pound, "The Theory of Judicial
Decision," Harv. Law Rev., XXXVI (May, 1923), 808, 824.
65. Airway Electric Appliance Corporation v.
Day, 266 U. S. 71.
66. Missouri Pacific R. R. v. Road Dist., 266
U. S. 187; Silberschein v. United States, 266 U. S. 221.
67. Bass, Ratcliff and Gretton Ltd. v. State
Tax Commission, 266 U. S. 271.
68. Kansas City Southern R. R. et al. v. Road
Improvement Dist., 266 U. S. 379.
69. Michigan Public Utilities Commission v.
Duke, 266 U. S. 570.
70. Fort Smith Light and Traction Co. v.
Bourland, 267 U. S. 330.
71. Work v. Rives, 267 U. S. 175.
72. Ohio Utility Co. v. Public Utilities
Commission, 267 U. S. 359.
73. Carroll v. United States, 267 U. S. 132.
74. Barclay and Co. v. Edwards, 267 U. S. 442.
75. Yeiser v. Bysart, 267 U. S. 540.
76. Stebbins and Hurley v. Riley, 268 U. S.
77. Linder v. United States, 268 U. S. 5.
78. Yee Hem v. United States, 268 U. S. 178.
79. North Laramie Land Co. v. Hoffman, 268 U.
80. Banton v. Belt Line Ry., 268 U. S. 413.
81. Pierce v. Society of the Sisters, 268 U. S.
82. Maple Flooring Manufacturers Association v.
United States, 268 U. S. 563.
83. Gitlow v. People of New York, 268 U. S.
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