-Caveat Lector- Click Here: <A HREF="http://www.constitution.org/haines/haines_007.htm";> Haines: Revival of Natural Law Concepts: Chapte…</A> ----- 1. See F. W. Maitland, "An Historical Sketch of Liberty and Equality" in Collected Papers (ed. by H. A. L. Fisher, Cambridge, 1911), I, 80, 83. 2. Cf. Mott, Due Process of Law, chaps. 3 and 4. 3. For use of the terms "arbitrary" or "unreasonable" in passing on the validity of legislative acts in the United States, consult Robert P. Reeder, "Is Unreasonable Legislation Unconstitutional";" University of Pennsylvania Law Review, LXII (January, 1914), 191. 4. See comments of Attorney General Haywood in State v. — 29, 30 (N. C., 1794) and of Justice Peck in State v. Cooper, 2 Yerg. (Tenn., 1831) 599, 611. The law of the land provision, Justice Nott thought, was intended "in some way or other, to operate as a check upon the exercise of arbitrary power." Dunn v. City Council of Charleston, Harper's Law Reports. 189, 199 (1824). Chief Justice Gibson in Norman v. Heist, 5 W. & S. (Pa., 1843) 171, 173 claimed that the design of the convention which framed the state constitution was to exclude arbitrary power from every branch of the government. The exercise of a governmental power which is arbitrary is void, according to Justice Campbell, dissenting in Sears v. Cottrell, 5 Mich. 251, 281 (1858). 5. Justice Johnson in Bank of Columbia v. Okely, 4 Wheat. 234, 244 (1819). This dictum of Justice Johnson was cited and approved by Justice Gray in Scott v. McNeal in denying to a state court the right to sell property for the payment of debts without notice to a party absent from the state for seven years. 154 U. S. 34, 45 (1893). 6. Justice Mason in White v. White, 5 Barb. 474, 484 (1849). 7. See, however, Chief Justice Hines in Barbour v. Louisville Board of Trade, 82 Ky. 645, 648 (1885). 8. "The principal, if not the sole, purpose of its [the Fourteenth Amendment] prohibitions is to prevent any arbitrary invasion by state authority of the rights of persons and property." Justice Field, dissenting in Butchers' Union v. Crescent City Co., 111 U. S. 746, 759 (1883). 9. Justice Bradley, concurring in Davidson v. New Orleans, 96 U. S. 97, 107 (1877). 10. Justice Field in ex parte Wall., 107 U. S. 265, 303 (1882). And again, he asserted, the Fourteenth Amendment undoubtedly intended that there should be "no arbitrary deprivation of life or liberty, or arbitrary spoliation of property," and that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights. Barbier v. Connolly, 113 U. S. 27, 31 (1885). Cf. also Stuart v. Palmer, 74 N. Y. 183, 190 (1878), in which a New York justice regarded the due process clause as a limitation upon the arbitrary exercise of legislative powers. "The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations." Justice Brown in Lawton v. Steele, 152 U. S. 133, 137 (1894). 11. Hurtado v. California, 110 U. S. 516, 532 (1884). Beginning with Davidson v. New Orleans, 96 U. S. 97 (1878), Mr. Willis asserts, Coke's doctrine of a fundamental law superior to all legislation was made a part of due process of law. Hugh Evander Willis, "Due Process of Law under the United States Constitution," Univ. of Pa. Law Rev., LXXIV (February, 1926), 331, 335. For applications of the new interpretation see Chicago, Milwaukee and St. Paul Ry. Co. v. Minnesota, 134 U. S. 418 (1890); Allgeyer v. Louisiana, 165 U. S. 578 (1897); and Lochner v. New York, 198 U. S. 45 (1905). 12. Justice Harlan in Chicago, Burlington and Quincy Ry. Co. v. Chicago, 166 U. S. 226, 234 (1896), and Chicago, Rock Island & Pac. Ry. Co. v. Arkansas, 219 U. S. 453, 465 (1910). 13. Cf. Holden v. James, 11 Mass. 396, 405 (1814) and supra, p. 111. 14. Opinions of Justices Field in Barbier v. Connolly, 113 U. S. 27, 32 (1885), and Matthews in Yick Wo v. Hopkins, 118 U. S. 356, 369, 370 (1886). Said Justice Matthews: "When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power." Chief Justice Fuller confirmed the rights of the states to deal with criminals within their borders provided no person or class of persons was denied equal and impartial justice and provided state procedure did not subject "the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice." Leeper v. Texas, 139 U. S. 462, 468 (1890). 15. The term "arbitrary" is vague enough in its connotations to give the widest latitude for a judicial censorship. It may mean acts not governed by any fixed rules, or which are capricious, unfair, absolute, despotic, tyrannical, or irresponsible. It is obvious that personal and partisan inclinations will have great weight in determining whether legislative enactments come within one of these indefinite categories. 16. Upholding a New York law providing for capital punishment by electrocution, Chief Justice Fuller said that the Fourteenth Amendment required that the action of the states be "exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. Undoubtedly the amendment forbids any arbitrary deprivation of life, liberty, or property, and secures equal protection to all under like circumstances in the enjoyment of their rights." In re Kemmler, 136 U. S. 436, 448 (1889). See also Justice Moody in Twining v . New Jersey, 211 U. S. 78, 100 (1908). 17. Classification "must always rest upon some difference which bears a reasonable and just relation to the act in respect to which classification is proposed, and can never be made arbitrarily and without any such basis... but arbitrary selection can never be justified by calling it classification." Justice Harlan in Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 560 (1902), citing the opinion of Justice Brewer in Gulf, Colorado and Santa Fé Railway v. Ellis, 165 U. S. 150, 155, 159 (1896). Cf., also, Justice Day in Southern Ry. Co. v. Greene, 216 U. S. 400, 417 (1909). For state cases declaring arbitrary police regulations void, cf. Mott, op cit., p. 338. 18. Truax v. Corrigan, 257 U. S. 312, 332 (1924). Mr. Reeder suggests that the practice of declaring legislative acts void because unreasonable, may be regarded as more nearly related to the old idea of natural justice than to the due process of law provision Op. cit., p. 200. 19. Dissenting opinion in Lochner v. New York, 198 U. S. 45, 76 (1904). 20. Cooley, Constitutional Limitations (8th ed., 1927), pp. 356, 357. If no other grounds can be discovered to prohibit legislative action, the people have reserved the power to themselves. Whether an act is or is not arbitrary depends upon the conditions prevailing at the time. Justice Pound in People v . La Fetra, 230 N. Y. 429, 444 ff.; 130 N. E. 601 (1921); Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922); and Emergency Rent Cases — Block v. Hirsch, 256 U. S. 135 (1921) and Levy Leasing Co. v. Siegel, 258 U. S. 242 (1922). 21. See Reeder, op. cit., pp. 191, 192, for cases in which the Supreme Court has suggested that action would violate the due process of law provision, if unreasonable or arbitrary, and in which the court has intimated that it will pass on the necessity or desirability of legislative or administrative action. Referring to the claim that an order of the Interstate Commerce Commission based upon its findings of fact was conclusive, Justice Lamar said: "A finding without evidence is arbitrary and baseless.... Such authority, however beneficently exercised in one case could be injuriously exerted in another, is inconsistent with rational justice, and comes under the Constitution's condemnation of all arbitrary exercise of power." Int. Com. Comm. v. Louisville & Nashville R. R., 227 U. S. 88, 91 (1912). "The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination." Chief Justice Tatt in Sioux City Bridge v. Dakota County, 260 U. S. 441, 445 (1922), or state procedure in assessments for local improvements must not be "palpably arbitrary or a plain abuse." Justice Holmes in Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55, 58 (1915). Judgments obtained by fraud or without service are not erroneous and not voidable but "upon principles of natural justice, and under the due process clause of the Fourteenth Amendment are absolutely void." Justice Lamar in Simon v. Southern Ry. Co., 236 U. S. 115, 122 (1915). [Italics by the author.] 22. For an analysis of cases affirming the doctrine of fundamental rights and of the incorporation of this doctrine in the due process of law clause, see Francis W. Bird, "The Evolution of Due Process of Law in the Decisions of the United States Supreme Court," Columbia Law Review, XIII (January, 1913), 37. 23. Corfield v. Coryell, 4 Wash. C. C. 371, 380-382 (1823), Fed. Cas. No. 3230. 24. Terrett v. Taylor, 9 Cranch, 43, 51 (1815); see reference to "republican principles" by Justice Chase in Calder v. Bull, 3 Dallas, 388 (1798). 25. Wilkinson v. Leland, 2 Pet. 627, 657 (1829); for extract from Story's opinion cf. supra, p 94. 26. Occasional references may, of course, be found to what Daniel Webster, in arguing the Dartmouth College Case, called "the great principles of republican liberty and of the social compact," or to the "eternal principles of justice which no government has a right to disregard." Justice Green in Bank of State v. Cooper, 2 Yerg. 599, 603 (1831). "There is a fundamental principle of right and justice, inherent in the nature and spirit of the social compact... that rises above and restrains and sets bounds to the power of legislation," said Chief Justice Buchanan in Regents v. Williams, 9 G. & J. 365, 408 (1838). Cooley thought certain "fundamental rights" when inserted in a constitution operated as a limitation on the legislature without any express provisions. Constitutional Limitations (1st ed., 1868), and People v. Hurlbut, 24 Mich. 44, 97-98 (1871). 27. "There are, undoubtedly, fundamental principles of morality and justice which no legislature is at liberty to disregard." License Tax Cases, 5 Wall. 462, 469 (1866). 28. Loan Association v. Topeka, 20 Wall. 655, 663 (1874); see also Justice Harlan in Madisonville T. Co. v. St. Bernard M. Co., 196 U. S. 239, 251, 252 (1904); and Justice Brown in Holden v. Hardy, 169 U. S. 366, 389 (1898), wherein "certain immutable principles of justice" are declared to "inhere in the very idea of a free government"; and Benson v. Mayer, 10 Barb. 223, 245 (1850), in which reference was made to "the great principles of Eternal Justice, which lie at the foundation of all free governments." To Justice Swayne they are the "conservative principles which lie at the foundation of all free government," St. Louis v. The Ferry Co., 11 Wall. 423, 429 (1870); and to the Wisconsin Supreme Court they are "a part of the inherent rights which governments under our conception are established to conserve," Nunnemacher v. State, 129 Wis. 190, 197-202 (1907). See also Justice Knowlton in Commonwealth v. Perry, 155 Mass. 117, 121 (1891), and Justice Deemer in State v. Barker, 116 Ia. 96, 105 (1902). 29. Cummings v. Missouri, 4 Wall. 277, 321 (1886). The Fourteenth Amendment, according to Justice Field, "was intended to give practical effect to the Declaration of 1776 of inalienable rights which are the gift of the Creator, which the law does not confer, but only recognizes." Slaughter-House Cases, 16 Wall. 36, 105 (1872). Agreeing with this opinion, Justice Harlan said that since the adoption of the Fourteenth Amendment, "the privileges and immunities specified in the first ten amendments as belonging to the people of the United States are equally protected by the constitution." Dissent in Maxwell v. Dow, 176 U. S. 581, 616 (1899). And again he said, "I go further and hold that the privileges of free speech and of free press, belonging to every citizen of the United States, constitute essential parts of every man's liberty, and are protected against violation by that clause of the Fourteenth Amendment forbidding any state to deprive any person of his liberty, without due process of law." Patterson v. Colorado, 205 U. S. 454, 456 (1906). Compare this view with the majority opinion of Justice Sanford in Gitlow v. New York, 268 U. S. 652 (1925); cf. infra, p. 193. Speaking through one of the champions of individualism, the Supreme Court held on another occasion that the Fourteenth Amendment "simply furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society." Chief Justice Waite in United States v. Cruikshank, 92 U. S. 542, 554 (1875); see reference to "immutable principles of liberty and justice" in Hurtado v. California, 110 U. S. 516, 535 (1884), also Justice Day in Watson v. Maryland, 218 U. S. 173, 177 (1910). For comment as to the way in which the pursuit of the immutable principles of justice in connection with the concept of due process of law leads into the "fields of speculation cultivated by writers on the law of nature and the nebulous natural rights of man," see L. P. McGehee, Due Process of Law, pp. 38, 57 ff. 30. For a summary of citations that the fundamental rights of the citizen are inviolable, cf. Robert P. Reeder, "Constitutional and Extra-Constitutional Restraints," Univ. of Pa. Law Rev., LXI (May, 1913), 441, 452. The emerging concept of liberty of contract was soon to be grouped with the undefined fundamental rights. "No proposition is now more firmly settled," thought Justice Rapallo, "than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit." People v. Marx, 99 N. Y. 377, 386 (1885). "There are certain fundamental rights of every citizen which are recognized in the organic law of all our tree American states. A statute which violates any of these rights is unconstitutional and void even though the enactment of it is not expressly forbidden.... The right to acquire, possess, and protect property includes the right to make reasonable contracts, which shall be under the protection of law." Commonwealth v. Perry, 155 Mass. 117, 125 (1891). The federal courts can only interfere when fundamental rights guaranteed by the federal Constitution are violated, Justice McKenna in Ballard v. Hunter, 204 U. S. 241, 262 (1907); Justice Day in Rogers v. Peck, 199 U. S. 423, 434 (1905), and in Franklin v. South Carolina, 218 U. S. 161, 164, 165 (1910); "the limit of the full control which the state has in the proceedings of its courts both in civil and criminal cases, is subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the federal Constitution." Justice Peckham in West v. Louisiana, 104 U. S. 258, 263 (1904); see also Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 107 (1009). Legislative acts, according to Chief Justice Taft, are not due process which are not in accord with the fundamental principle of equality of application of the law. Truax v . Corrigan, 257 U. S. 312, 332 (1921). Judge Dillon thought the value of the due process clause of the Fourteenth Amendment consisted primarily "in the great fundamental principles of right and justice, which it embodies and makes part of the organic law of the nation." The Laws and Jurisprudence of England and America (1894), pp. 208-212. "The great fundamental rights," said Judge Dillon," guaranteed by [American] constitutions are life, liberty, contracts and property." Ibid., p 203. One can readily discover that judicial construction had an extraordinarily large share in giving this sort of a content to the meaning of the Fourteenth Amendment. 31. Monongahela B. Co. v. United States, 216 U. S. 177, 195 (1910). 32. Twining v. New Jersey, 211 U. S. 78, 106 (1908). "We cannot interfere [with a judgment of a state court] unless the judgment amounts to mere arbitrary or capricious exercise of power, or is in clear conflict with those fundamental principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights." Justice McReynolds in American Ry. Express Co. v. Kentucky, 273 U. S. 269, 273 (1927). 33. For an extensive list of citations that the Supreme Court has no right to inquire into the wisdom or justice of the acts of the federal or state governments, see Robert P. Reeder, "Constitutional and Extra-Constitutional Restraints," Univ. of Pa. Law Rev., LXI (May, 1913), 441, 446, 456. Regarding the statements of justices relating to inalienable rights, fundamental rights, and rights which grow out of the essential nature of free governments, Mr. Reeder thinks "it is sufficient to say that the premises upon which they are based have been abandoned by thoughtful men for over a century, [and] that those statements are against the vast weight of direct authority." For another summary of judicial opinions that courts may not pass on the justice or expediency of legislative acts, consult Cooley, Constitutional Limitations (8th ed.), I, 341 ff. 34. Cooley, Constitutional Limitations (8th ed.), chap. 21; also Freund, The Police Power: Public Policy and Constitutional Rights (Chicago, 1904), especially chap. 1. 35. Dillon, Municipal Corporations (5th ed.), sec. 589. 36. Justice Earle, in re Jacobs, 98 N. Y. 98, no (1885). Due process of law, as a limitation on the police power of the federal government, was suggested by Chief Justice Taney in Dred Scott v. Stanford, 19 How. 393, 450 (1856) and referred to in several dissenting opinions but was consistently repudiated by the federal justices. Justice Field expressed the prevailing sentiment when he declared that the Fourteenth Amendment was not "designed to interfere with the power of the state, sometimes termed its police power." Barbier v. Connolly, 113 U. S. 27, 31 (1885). For reference to additional cases, see Mott, op. cit., pp. 334, 335. 37. Justice Peckham in People v. Gibson, 109 N. Y. 389, 400 ff. (1888). Cf. as to the definition of the term "liberty," citing chiefly Justice Field's opinions in the Supreme Court and Justice Andrews' opinion in Bertholf v. O'Reilly, 74 N. Y. 509 (1878); in re Jacobs, supra; and People v. Marx, 99 N. Y. 377 (1885). 38. Wynehamer v. State of New York, 13 N. Y. 378, 392 ff. (1856). 39. Chief Justice Waite in Stone v. Farmers' Loan and Trust Co., 116 U. S. 307, 331 (1886) and Justice Brewer in Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362, 397 (1893). 40. Lochner v. New York, 198 U. S. 45, 56 (1898). 41. Referring to the decision of the Supreme Court in Yick Wo v. Hopkins, 118 U. S. 356 (1885) in which a municipal ordinance was held void because its administration was regarded as arbitrary and discriminatory, Justice Brown said: "While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power." Plessy v. Ferguson, 163 U. S. 537, 550 (1895). See also Justice Peckham in Lake Shore and Michigan Southern Ry. Co. v. Smith, 173 U. S. 684, 689 (1899), and in W. M. & P. R. R. Co. v. Jacobsen, 179 U. S. 287, 297 (1900). The police power is subject to judicial review and property rights cannot be wrongfully destroyed by arbitrary enactments. Justice Day in Dobbins v. Los Angeles, 195 U. S. 223, 236 (1904). Cf. also Justice Harlan in Jacobsen v. Massachusetts, 197 U. S. 11, 31 (1904); cases cited to sustain this view are Mugler v. Kansas, 123 U. S. 623, 661 (1887); Minnesota v. Barber, 136 U. S. 313, 320 (1889); Atkin v. Kansas, 191 U. S. 207, 223 (1903). "The principle involved in these decisions," said Justice Hughes, "is that where the legislative action is arbitrary and has no reasonable relation to a purpose which it is competent for government to effect, the legislature transcends the limits of its power." Chicago, Burlington & Quincy Ry. Co. v. McGuire, 219 U. S. 549, 569 (1910). The general result is that specific provisions of constitutions are likely to be enforced literally but indefinite provisions such as due process of law and the equal protection of the laws will be applied so as to prohibit governmental acts which are considered as against natural justice. No proceeding may be declared invalid "unless in conflict with some special inhibitions of the Constitution, or against natural justice." Justice Brewer in Arndt v. Griggs, 134 U. S. 316, 321 (1890). "Under the Fourteenth Amendment, the legislature is bound to provide a method for the assessment and collection of taxes that shall not be inconsistent with natural justice." Justice Brown in Turpin v. Lemon, 187 U. S. 51, 60 (1902). 42. "A police measure must fairly tend to accomplish the purpose of its enactment, and must not go beyond the reasonable demands of the occasion." Cooley, Constitutional Limitations (8th ed.), II, 1231. 43. Thomas Reed Powell, "The Judiciality of Minimum Wage Legislation," Harvard Law Review, XXXVII (March, 1924), 545. 44. Ray A. Brown, "Due Process of Law, Police Power, and the Supreme Court," Harv. Law Rev., XL (May, 1927), 943, 966. 45. Brown, op. cit., p. 956. President Goodnow quotes Professor Seager's conclusion that "the question of the constitutionality of a restrictive labor law is inseparably connected with the question of the wisdom of such a law." And then he adds: "What the courts actually do in cases in which they declare a law of this sort unconstitutional, is to substitute their ideas of wisdom for those of the legislature, although they continually say that this is not the case." Social Reform and the Constitution (New York, 1911), p. 247, and Henry R. Seager, "The Attitude of American Courts toward Restrictive Labor Legislation," Political Science Quarterly, XIX (December 1904), 589. 46. James L. Nesbitt, "Due Process of Law and Opinion," Col. Law Rev., XXVI (January, 1926), 22, 27. The categorical view of due process of law, Mr. Nesbitt thinks, is best illustrated in the majority opinion in the Minimum Wage Case, Adkins v. Children's Hospital, 261 U. S. 525 (1923). When the Supreme Court, under the due process clause, performs "the function of umpiring the contest between competing social forces" Mr. Nesbitt finds that three attitudes are in evidence: first, an abstract standard to determine the line between reasonable regulation and arbitrary restraint, e. g., Justice Sutherland's opinion in the Minimum Wage Case; second, a personal standard of the court, such as that of Chief Justice Taft and Justice Sanford in the same case; and third, a standard of what others have declared reasonable; see Justice Holmes in dissent, Lochner v. New York, 198 U. S. 45, 76 (1898). 47. Legislatures may use only such means as are reasonably designed to deal with existing conditions, Herlihy v. Donahue, 52 Mont. 601, 610, 161 Pac. 164 (1916); also Mott, op. cit., p. 539. On the way in which the "silence of the original Constitution utters restraints," see T. R. Powell, "Due Process Tests of State Taxation," Univ. of Pa. Law Rev., LXXIV (March, 1926), 423, 573. 48. Mott, op. cit., p. 539. 49. Charles Wallace Collins, The Fourteenth Amendment and the States (Boston, 1912), p. 183. See also summary of Judge Hough in Harv. Law Rev., XXXII (January, 1919), 229, where it is noted that from 1868 to the 1910 term of the Supreme Court there were more than four hundred cases interpreting due process of law alone and less than one hundred before 1883. From 1890 to 1900 there were one hundred and ninety-seven appeals under the recent cases relating to corporations, with public service companies predominating. 50. See Collins, op. cit., p. 183. 51. The Supreme Court, says Professor Commons, has legislated by definition: "It changed the meaning of due process of law and thus amended the federal and every state constitution. It changed the meaning of property and liberty as used in the Fourteenth Amendment and thus took over from the states the final determination of what was due process of law in the regulation of property and business." Legal Foundations of Capitalism, p. 355. The change in the court's interpretation of the term "due process of law," Mr. Willis thinks, was brought about "through the efforts of corporations; through a change in the personnel of the bench, and through the personal activity of Justice Field, who always championed this doctrine and who strangely, in writing an opinion for the Supreme Court, cited his own opinion while a circuit judge as the opinion of the Supreme Court." Minneapolis Ry. Co. v. Beckwith, 129 U. S. 26 (1898); "Due Process of Law under the United States Constitution," Univ. of Pa. Law Rev., LXXIV, 337; and County of San Mateo v. Southern Pacific Ry. Co., 13 Fed. 722 (1882). 52. Willis, Univ. of Pa. Law Rev., LXXIV, 338. Mr. Willis claims that by attacking all forms of state legislation before the Supreme Court corporations are attempting to undermine our dual form of government. Ibid., p. 342. The Fourteenth Amendment, in the judgment of Mr. Coffins, was to be a charter of liberty for human rights, but it operates today to protect primarily the rights of property. It has become the Magna Carta of organized capital. It "gives to the federal government undefined and illimitable control over every phase of state activity. It throws into the hands of the Supreme Court of the United States more power over the states than does all the rest of the Constitution combined." Collins, op. cit., pp. 146 ff. 53. "Due Process of Law — Today," Harv. Law Rev., XXXII, 218, 233. For similar judgments regarding the decline of significance of this phrase, consult Charles Warren, "The Progressiveness of the United States Supreme Court," Col. Law Rev., XIII (April, 1913), 294, and Robert E. Cushman, "The Social and Economic Interpretation of the Fourteenth Amendment," Michigan Law Review, XX (May, 1922), 737, 757 ff. 54. Ray A. Brown, op. cit., pp. 943 ff. 55. Ibid., pp. 944, 945. 56. Adkins v. Children's Hospital, 261 U. S. 525 (1923). The committees of both Houses of Congress unanimously recommended the legislation, House Rep. No. 571 and Senate Rep. No. 562, 65th Congress, 2d Session. The House of Representatives passed the bill without opposition, and only twelve votes were recorded against it in the Senate, vol. LVI, Cong. Rec., Pt. 9, pp. 8875 ff.; Pt. 10, pp. 10278 ff.; Pt. 12, pp. 604 ff. In the consideration of this case some extracts are used from an editorial note by the writer in Texas Law Review, II (December, 1923), 99. 57. 198 U. S. 45 (1904), It is a well-known fact that in the attempts of the federal courts to define due process of law there has been much wavering and uncertainty, and dissenting opinions have been prevalent. The court seldom reverses itself in the interpretation of due process — it explains, distinguishes, or modifies. The effect is often a reversal in whole or in part. The uncertainties and misapprehensions are apparent in the general impression of the bench and bar that the majority opinion in the Lochner Case had been overruled, and that the court had adopted the minority views of Justice Holmes and the reiteration of the majority views in that case by Justice Sutherland, rendering the opinion in Adkins v. Children's Hospital. See Fletcher Dobyns, "Justice Holmes and the Fourteenth Amendment," Illinois Law Review, XIII (June, 1918), 71, 92, and Cardozo, The Nature of the Judicial Process (New Haven, 1922), p. 79. 58. 261 U. S. 554, 555. Referring to Justice Sutherland's views on the freedom of contract in the Minimum Wage Case, Powell remarks, "It represents his personal views of desirable governmental policy. Those views are shared by many others, but they are not written into the Constitution of the United States except as judges from time to time have inscribed them there." "The Judiciality of Minimum Wage Legislation," Harv. Law Rev., XXXVII (March, 1924), 545, 555, 556. 59. 261 U. S. 559. 60. Ibid., 562. 61. See Holden v. Hardy, 169 U. S. 336 (1897), limiting employment of workmen in mines to eight hours per day; Patterson v. The Eudora, 190 U. S. 169 (1903), prohibiting masters from paying seamen in advance; Muller v. Oregon, 208 U. S. 412 (1908), limiting hours of labor of women employed in laundries to ten hours per day; Riley v. Massachusetts, 232 U. S. 671 (1914), limiting employment of women in manufacturing establishments to ten hours per day, or not more than fifty-six hours per week; Erie Railway Co. v. Williams, 233 U. S. 685 (1914), prohibiting employers from paying employees less often than semi-monthly; Bosley v. McLaughlin, 236 U. S. 385 (1915), limiting employment of women for more than eight hours per day, or more than forty-eight hours per week in certain designated employments; Bunting v. Oregon, 243 U. S. 426 (1917), forbidding employment of anyone in mill or factory for more than ten hours per day. 62. 261 U. S. 567, 568. 63. On the effect of the personal influences in the decisions of the Supreme Court on labor cases, see Powell, "The Constitutional Issue in Minimum Wage Legislation," Minnesota Law Review, vol. II (December, 1917). The reasoning of the court in the Adkins Case led to a judgment against the validity of the Arizona Minimum Wage Act and to a condemnation of other meliorative acts. See ex parte Smith 223 Pac. 971 (1924). 64. Collected Legal Papers, p. 184. 65. "Though neither the doctrine of individualism nor of laissez faire is contained in the language of the constitution, they permeate many judicial opinions interpreting the constitution." Powell, "The Constitutional Issue in Minimum Wage Legislation," Minn. Law Rev., II, 11. For a different interpretation see Brown, ibid., I (June, 1917), 471. 66. Burns Baking Company v. Bryan, 264 U. S. 505, 513 (1923). 67. Ibid., 519, 520. 68. 264 U. S. 533, 534. 69. "One who assails the classification [made by a state legislature] must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary." Justice Sanford in Whitney v. California, 274 U. S. 357 (1927) citing Lindsley v. Natural Carbonic Gas Co., 220 U. S. 62, 78, 79 (1910). 70. Mott, op. cit., pp. 562 ff. 71. Tyson and Bro. United Theater Ticket Offices v. Banton; 273 U. S. 418 (1927). Referring to the failure of the justices to give due weight to the evidence before the legislature in the case of Lochner v. New York, 198 U. S. 45 (1905), Sir Frederick Pollock believes that "the legal weakness of this reasoning, if we may say so, is that no credit seems to be given to the state legislature for knowing its own business and it is treated like an inferior court which has to find affirmative proof of its competence. How can the Supreme Court at Washington have conclusive judicial knowledge of the conditions affecting bakeries in New York? If it has not such knowledge as matter of fact, can it be matter of law that no conditions can be reasonably supposed to exist which would make such an enactment, not necessarily wise or expedient (for no one attributes to any court, state or federal, a general jurisdiction to review legislation on the merits) but constitutional?" "The New York Labour Law and the Fourteenth Amendment," Law Quarterly Review, XXI (July, 1905), 212. 72. Tyson and Bro. United Theater Ticket Offices 11. Banton, 273 U. S. 418 (1927). As authority for this view, Wolff Co. v. Industrial Court, 262 U. S. 522, 536 (1922) was cited. 73. 273 U. S., 433, 434. 74. Fairmont Creamery Co. v. Minnesota, 274 U. S. 1 (1927). 75. Barron v. Baltimore, 7 Pet 243 (1833). See comment of Chief Justice Waite in 1876 that "it is now too late to question the correctness of this construction," and citation of cases, Harv. Law Rev., XXXIX (February, 1926), 436. 76. Prudential Insurance Co. v. Cheek, 259 U. S. 530, 538, 543 (1922); Patterson v. Colorado, 205 U. S. 454 (1907). For the claim that it was the intention of the framers of the Fourteenth Amendment that the rights and privileges of the first eight amendments should be the "secure possession of every citizen" of the United States, beyond the power of any state to abridge," see Guthrie, Lectures on the Fourteenth Article of Amendment to the Constitution of the United States, p. 61. 77. New York v. Gitlow, 268 U. S. 652, 666 (1925). Justice Sanford said that the court did not regard the statement quoted above from the Prudential Insurance Cases as "determinative," but he does not refer to the other cases in which similar opinions were rendered. 78. See Minor v. Happersett, 21 Wall. 162 (1874), 1; United States v. Cruikshank, 92 U. S. 542 (1875); in re Kemmler, 136 U. S. 436 (1890); Twining v. New Jersey, 211 U. S. 78 (1908). 79. Whitney v. California, 274 U. S. 357 (1927). 80. United States v. Trenton Potteries Co., 273 U. S. 392 (1927). For applications of the concept of reasonableness in passing on the validity of combinations in restraint of trade, consult U. S. v. Trans-Missouri Freight Association, 166 U. S. 290 (1896); Northern Securities Co. v. United States, 193 U. S. 197 (1903); Standard Oil Co. v. United States, 221 U. S. 1 (1910); United States v. American Tobacco Co., 211 U. S. 106 (1910). "It is submitted that up to the present time very little can be learned as to the meaning of due process of law from the decisions of the Supreme Court as to what in its judgment is reasonable and what unreasonable. They neither give us a rule of law nor a definition." Willis, Univ. of Pa. Law Rev., LXXIV, 338, 339. See comment how the Supreme Court, in finding a new meaning for due process of law, made some new constitutional law. P. 339. 81. For comments on one phase of this revolution, see F. Dumont Smith, "Decisive Battles of Constitutional Law," American Bar Association Journal, X, 505, and The Constitution: Its Story and Battles, chap. 15. ----- Aloha, He'Ping, Om, Shalom, Salaam. Em Hotep, Peace Be, All My Relations. Omnia Bona Bonis, Adieu, Adios, Aloha. Amen. Roads End
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