The Constitution of the United States of America: Analysis and Interpretation Part 175

(8) Law taxing in the hands of a resident citizen a debt owing from a resident of another State and secured by mortgage of land in the debtors' State.[42]

(9) Statutes regulating the manufacture and sale of intoxicating liquors.[43]

(10) Statute regulating the method of capital punishment.[44]

(11) Statute restricting the franchise to male citizens.[45]

(12) Statute requiring persons coming into a State to make a declaration of intention to become citizens and residents thereof before being permitted to register as voters.[46]

(13) Statute restricting dower, in case wife at time of husband's death is a nonresident, to lands of which he died seized.[47]

(14) Statute restricting right to jury trial in civil suits at common law.[48]

(15) Statute restricting drilling or parading in any city by any body of men without license of the Governor. "The right voluntarily to a.s.sociate together as a military company or organization, or to drill * * *, without, and independent of, an act of Congress or law of the State authorizing the same, is not an attribute of national citizenship."[49]

(16) Provision for prosecution upon information, and for a jury (except in capital cases) of eight persons.[50] Upon an extended review of the cases, the Court held that "the privileges and immunities of citizens of the United States do not necessarily include all the rights protected by the first eight amendments to the Federal Const.i.tution against the powers of the Federal Government"; and specifically, that the right to be tried for an offense only upon indictment, and by a jury of 12, rests with the State governments and is not protected by the Fourteenth Amendment. "Those are not distinctly privileges or immunities [of national citizenship] where everyone has the same as against the Federal Government, whether citizen or not." Similarly, freedom from testimonial compulsion, or self-incrimination, is not "an immunity that is protected by the Fourteenth Amendment against State invasion."[51]

(17) Statute penalizing the becoming or remaining a member of any oath-bound a.s.sociation (other than benevolent orders, etc.,) with knowledge that the a.s.sociation has failed to file its const.i.tution and membership lists. The privilege of remaining a member of such an a.s.sociation, "if it be a privilege arising out of citizenship at all,"

is an incident of State rather than United States citizenship.[52]

(18) Statute allowing a State to appeal in criminal cases for errors of law and to retry the accused.[53]

(19) Statute making the payment of poll taxes a prerequisite to the right to vote.[54]

(20) Statute whereby deposits in banks outside the State are taxed at 50 per $100 and deposits in banks within the State are taxed at 10 per $100. "* * * the right to carry out an incident to a trade, business or calling such as the deposit of money in banks is not a privilege of national citizenship."[55]

(21) The right to become a candidate for State office is a privilege of State citizenship, not national citizenship.[56]

(22) The Illinois Election Code which requires that a pet.i.tion to form and nominate candidates for a new political party be signed by at least 200 voters from each of at least 50 of the 102 counties in the State, notwithstanding that 52% of the voters reside in only one county and 87%, in the 49 most populous counties.[57]

Due Process of Law Clause

HISTORICAL DEVELOPMENT

Although many years after ratification the Court ventured the not very informative observation that the Fourteenth Amendment "operates to extend * * * the same protection against arbitrary State legislation, affecting life, liberty and property, as is offered by the Fifth Amendment,"[58] and that "ordinarily if an act of Congress is valid under the Fifth Amendment it would be hard to say that a State law in like terms was void under the Fourteenth,"[59] the significance of the due process clause as a restraint on State action appears to have been grossly underestimated by litigants no less than by the Court in the years immediately following its adoption. From the outset of our const.i.tutional history due process of law as it occurs in the Fifth Amendment had been recognized as a restraint upon government, but, with one conspicuous exception,[60] only in the narrower sense that a legislature must provide "due process for the enforcement of law"; and it was in accordance with this limited appraisal of the clause that the Court disposed of early cases arising thereunder.

Thus, in the Slaughter-House Cases,[61] in which the clause was timidly invoked by a group of butchers challenging on several grounds the validity of a Louisiana statute which conferred upon one corporation the exclusive privilege of butchering cattle in New Orleans, the Court declared that the prohibition against a deprivation of property "has been in the Const.i.tution since the adoption of the Fifth Amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the const.i.tutions of nearly all the States, as a restraint upon the power of the States. * * * We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision."[62] Four years later, in Munn _v._ Illinois,[63] the Court again refused to interpret the due process clause as invalidating State legislation regulating the rates charged for the transportation and warehousing of grain. Overruling contentions that such legislation effected an unconst.i.tutional deprivation of property by preventing the owner from earning a reasonable compensation for its use and by transferring to the public an interest in a private enterprise, Chief Justice Waite emphasized that "the great office of statutes is to remedy defects in the common law as they are developed, * * * We know that this power [of rate regulation]

may be abused; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts."[64]

Deploring such attempts, nullified consistently in the preceding cases, to convert the due process clause into a substantive restraint on the powers of the States, Justice Miller in Davidson _v._ New Orleans[65]

obliquely counseled against a departure from the conventional application of the clause, albeit he acknowledged the difficulty of arriving at a precise, all inclusive, definition thereof. "It is not a little remarkable," he observed, "that while this provision has been in the Const.i.tution of the United States, as a restraint upon the authority of the Federal Government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. But while it has been part of the Const.i.tution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the Fourteenth Amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded. If, therefore, it were possible to define what it is for a State to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercise of power thus forbidden to the State, and exclude those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental law. But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, * * *, in the ascertaining of the intent and application of such an important phrase in the Federal Const.i.tution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, * * *"[66]

In thus persisting in its refusal to review, on other than procedural grounds, the const.i.tutionality of State action, the Court was rejecting additional business; but a bare half-dozen years later, in again reaching a result in harmony with past precedents, the Justices gave fair warning of the imminence of a modification of their views. Thus, after noting that the due process clause, by reason of its operation upon "all the powers of government, legislative as well as executive and judicial," could not be appraised solely in terms of the "sanction of settled usage," Justice Mathews, speaking for the Court in Hurtado _v._ California,[67] declared that, "arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal mult.i.tude. And the limitations imposed by our const.i.tutional law upon the action of the governments, both State and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political inst.i.tutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government."[68] Thus were the States put on notice that every species of State legislation, whether dealing with procedural or substantive rights, was subject to the scrutiny of the Court when the question of its essential justice is raised.

Police Power: Liberty: Property

What induced the Court to dismiss its fears of upsetting the balance in the distribution of powers under the Federal System and to enlarge its own supervisory powers over state legislation were the appeals more and more addressed to it for adequate protection of property rights against the remedial social legislation which the States were increasingly enacting in the wake of industrial expansion. At the same time the added emphasis on the due process clause which satisfaction of these requests entailed afforded the Court an opportunity to compensate for its earlier virtual nullification of the privileges and immunities clause of the amendment. So far as such modification of its position needed to be justified in legal terms, theories concerning the relation of government to private rights were available to demonstrate the impropriety of leaving to the state legislatures the same ample range of police power they had enjoyed prior to the Civil War. Preliminary, however, to this consummation the Slaughter-House Cases and Munn _v._ Illinois had to be overruled in part, at least, and the views of the dissenting Justices in those cases converted into majority doctrine.

About twenty years were required to complete this process, in the course of which the restricted view of the police power advanced by Justice Field in his dissent in Munn _v._ Illinois,[69] namely, that it is solely a power to prevent injury, was in effect ratified by the Court itself. This occurred in 1887, in Mugler _v._ Kansas,[70] where the power was defined as embracing no more than the power to promote public health, morals, and safety. During the same interval, ideas embodying the social compact and natural rights, which had been espoused by Justice Bradley in his dissent in the Slaughter-House Cases,[71] had been transformed tentatively into const.i.tutionally enforceable limitations upon government,[72] with the consequence that the States, in exercising their police power, could foster only those purposes of health, morals, and safety which the Court had enumerated and could employ only such means as would not unreasonably interfere with the fundamental natural rights of liberty and property, which Justice Bradley had equated with freedom to pursue a lawful calling and to make contracts for that purpose.[73]

So having narrowed the scope of the State's police power in deference to the natural rights of liberty and property, the Court next proceeded to read into the latter currently accepted theories of _laissez faire_ economics, reinforced by the doctrine of evolution as elaborated by Herbert Spencer, to the end that "liberty", in particular, became synonymous with governmental hands-off in the field of private economic relations. In Budd _v._ New York,[74] decided in 1892, Justice Brewer in a dictum declared: "The paternal theory of government is to me odious.

The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government." And to implement this point of view the Court next undertook to water down the accepted maxim that a State statute must be presumed to be valid until clearly shown to be otherwise.[75] The first step was taken with the opposite intention. This occurred in Munn _v._ Illinois,[76] where the Court, in sustaining the legislation before it, declared: "For our purposes we must a.s.sume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was pa.s.sed."[77] Ten years later, in Mugler _v._ Kansas[78] this procedure was improved upon, and a State-wide anti-liquor law was sustained on the basis of the proposition that deleterious social effects of the excessive use of alcoholic liquors were sufficiently notorious for the Court to be able to take notice of them; that is to say, for the Court to review and appraise the considerations which had induced the legislature to enact the statute in the first place.[79] However, in Powell _v._ Pennsylvania,[80] decided the following year, the Court, being confronted with a similar act involving oleomargarine, concerning which it was unable to claim a like measure of common knowledge, fell back upon the doctrine of presumed validity, and declaring that "it does not appear upon the face of the statute, or from any of the facts of which the Court must take judicial cognizance, that it infringes rights secured by the fundamental law, * * *"[81] sustained the measure.

In contrast to the presumed validity rule under which the Court ordinarily is not obliged to go beyond the record of evidence submitted by the litigants in determining the validity of a statute, the judicial notice principle, as developed in Mugler _v._ Kansas, carried the inference that unless the Court, independently of the record, is able to ascertain the existence of justifying facts accessible to it by the rules governing judicial notice, it will be obliged to invalidate a police power regulation as bearing no reasonable or adequate relation to the purposes to be subserved by the latter; namely, health, morals, or safety. For appraising State legislation affecting neither liberty nor property, the Court found the rule of presumed validity quite serviceable; but for invalidating legislation const.i.tuting governmental interference in the field of economic relations, and, more particularly, labor-management relations, the Court found the principle of judicial notice more advantageous. This advantage was enhanced by the disposition of the Court, in litigation embracing the latter type of legislation, to shift the burden of proof from the litigant charging unconst.i.tutionality to the State seeking enforcement. To the latter was transferred the task of demonstrating that a statute interfering with the natural right of liberty or property was in fact "authorized" by the Const.i.tution and not merely that the latter did not expressly prohibit enactment of the same.

Liberty of Contract--Labor Relations

Although occasionally acknowledging in abstract terms that freedom of contract is not absolute but is subject to restraint by the State in the exercise of its police powers, the Court, in conformity with the aforementioned theories of economics and evolution, was in fact committed to the principle that freedom of contract is the general rule and that legislative authority to abridge the same could be justified only by exceptional circ.u.mstances. To maintain such abridgments at a minimum, the Court intermittently employed the rule of judicial notice in a manner best exemplified by a comparison of the early cases of Holden _v._ Hardy[82] and Lochner _v._ New York,[83] decisions which bear the same relation to each other as Powell _v._ Pennsylvania[84] and Mugler _v._ Kansas.[85]

In Holden _v._ Hardy, decided in 1898, the Court, in reliance upon the principle of presumed validity, allowed the burden of proof to remain with those attacking the validity of a statute and upheld a Utah act limiting the period of labor in mines to eight hours per day. Taking cognizance of the fact that labor below the surface of the earth was attended by risk to person and to health and for these reasons had long been the subject of State intervention, the Court registered its willingness to sustain a limitation on freedom of contract which a State legislature had adjudged "necessary for the preservation of health of employees," and for which there were "reasonable grounds for believing that * * * [it was] supported by the facts."[86]

Seven years later, however, a radically altered court was predisposed in favor of the doctrine of judicial notice, through application of which it arrived at the conclusion, in Lochner _v._ New York, that a law restricting employment in bakeries to ten hours per day and 60 hours per week was an unconst.i.tutional interference with the right of adult laborers, _sui juris_, to contract with respect to their means of livelihood. Denying that in so holding that the Court was in effect subst.i.tuting its own judgment for that of the legislature, Justice Peckham, nevertheless, maintained that whether the act was within the police power of the State was a "question that must be answered by the Court"; and then, in disregard of the acc.u.mulated medical evidence proffered in support of the act, uttered the following observation: "In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some trades, and is also vastly more healthy than still others. To the common understanding the trade of a baker has never been regarded as an unhealthy one. * * * It might be safely affirmed that almost all occupations more or less affect the health. * * * But are we all, on that account, at the mercy of the legislative majorities?"[87]

Of two dissenting opinions filed in the case, one, prepared by Justice Harlan, stressed the abundance of medical testimony tending to show that the life expectancy of bakers was below average, that their capacity to resist diseases was low, and that they were peculiarly p.r.o.ne to suffer irritations of the eyes, lungs, and bronchial pa.s.sages; and concluded that the very existence of such evidence left the reasonableness of the measure under review open to discussion and that the the latter fact, of itself, put the statute within legislative discretion.

"'Responsibility,' according to Justice Harlan, 'therefore, rests upon the legislators, not upon the courts. No evils arising from such legislation could be more far reaching than those that might come to our system of government if the judiciary, abandoning the sphere a.s.signed to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people's representatives. * * * The public interest imperatively demand--that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably beyond all question in violation of the fundamental law of the Const.i.tution.'"[88]

The second dissenting opinion written by Justice Holmes has received the greater measure of attention, however, for the views expressed therein were a forecast of the line of reasoning to be followed by the Court some decades later. According to Justice Holmes: "This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this Court that State const.i.tutions and State laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. * * * The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. * * * But a Const.i.tution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of _laissez faire_. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Const.i.tution * * * I think that the word 'liberty,' in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law."[89]

In part, Justice Holmes's criticism of his colleagues was unfair, for his "rational and fair man" could not function in a vacuum, and, in appraising the const.i.tutionality of State legislation, could no more avoid being guided by his preferences or "economic predilections" than were the Justices const.i.tuting the majority. Insofar as he was resigned to accept the broader conception of due process of law in preference to the historical concept thereof as pertaining to the enforcement rather than the making of law and did not affirmatively advocate a return to the maxim that the possibility of abuse is no argument against possession of a power, Justice Holmes, whether consciously or not, was thus prepared to observe, along with his opponents in the majority, the very practices which were deemed to have rendered inevitable the a.s.sumption by the Court of a "perpetual censorship" over State legislation. The basic distinction, therefore, between the positions taken by Justice Peckham for the majority and Justice Holmes, for what was then the minority, was the espousal of the conflicting doctrines of judicial notice by the former and of presumed validity by the latter.

Although the Holmes dissent bore fruit in time in the form of the Bunting _v._ Oregon[90] and Muller _v._ Oregon[91] decisions overruling the Lochner Case, the doctrinal approach employed in the earlier of these by Justice Brewer continued to prevail until the depression in the 1930's. In view of the shift in the burden of proof which application of the principle of judicial notice entailed, counsel defending the const.i.tutionality of social legislation developed the practice of submitting voluminous factual briefs replete with medical or other scientific data intended to establish beyond question a substantial relationship between the challenged statute and public health, safety, or morals. Whenever the Court was disposed to uphold measures pertaining to industrial relations, such as laws limiting hours[92] of work, it generally intimated that the facts thus submitted by way of justification had been authenticated sufficiently for it to take judicial cognizance thereof; but whenever it chose to invalidate comparable legislation, such as enactments establishing minimum wages for women and children,[93] it brushed aside such supporting data, proclaimed its inability to perceive any reasonable connection between the statute and the legitimate objectives of health or safety, and condemned the former as an arbitrary interference with freedom of contract.

During the great Depression, however, the _laissez faire_ tenet of self-help was supplanted by the belief that it is peculiarly the duty of government to help those who are unable to help themselves; and to sustain remedial legislation enacted in conformity with the latter philosophy, the Court had to revise extensively its previously formulated concepts of "liberty" under the due process clause. Not only did the Court take judicial notice of the demands for relief arising from the depression when it overturned prior holdings and sustained minimum wage legislation,[94] but in upholding State legislation designed to protect workers in their efforts to organize and bargain collectively, the Court virtually had to exclude from consideration the employer's contention that such legislation interfered with his liberty of contract in contravention of the due process clause and to exalt as a fundamental right the correlative liberty of employees, which right the State legislatures were declared to be competent to protect against interference from private sources. To enable these legislatures to balance the equities, that is, to achieve equality in bargaining power between employer and employees, the Court thus sanctioned a diminution of liberty in the sense of the employer's freedom of contract and a corresponding increase in the measure of liberty enjoyable by the workers. To the extent that it acknowledged that liberty of the individual may be infringed by the coercive conduct of other individuals no less than by the arbitrary action of public officials, the Court in effect transformed the due process clause into a source of encouragement to State legislatures to intervene affirmatively by way of mitigating the effects of such coercion. By such modification of its views, liberty, in the const.i.tutional sense of freedom resulting from restraint upon government, was replaced by the civil liberty which an individual enjoys by virtue of the restraints which government, in his behalf, imposes upon his neighbors.

DEFINITIONS

"Persons" Defined

Notwithstanding the historical controversy that has been waged as to whether the framers of the Fourteenth Amendment intended the word, "person," to mean only natural persons, or whether the word, "person,"

was subst.i.tuted for the word, "citizen," with a view to protecting corporations from oppressive state legislation,[95] the Supreme Court, as early as the Granger cases,[96] decided in 1877, upheld on the merits various state laws without raising any question as to the status of railway corporation-plaintiffs to advance due process contentions. There is no doubt that a corporation may not be deprived of its property without due process of law;[97] and although prior decisions have held that the "liberty" guaranteed by the Fourteenth Amendment is the liberty of natural, not artificial, persons,[98] nevertheless a newspaper corporation was sustained, in 1936, in its objection that a state law deprived it of liberty of press.[99] As to the natural persons protected by the due process clause, these include all human beings regardless of race, color, or citizenship.[100]

Ordinarily, the mere interest of an official as such, in contrast to an actual injury sustained by a natural or artificial person through invasion of personal or property rights, has not been deemed adequate to enable him to invoke the protection of the Fourteenth Amendment against State action.[101] Similarly, munic.i.p.al corporations are viewed as having no standing "to invoke the provisions of the Fourteenth Amendment in opposition to the will of their creator," the State.[102] However, State officers are acknowledged to have an interest, despite their not having sustained any "private damage," in resisting an "endeavor to prevent the enforcement of laws in relation to which they have official duties," and, accordingly, may apply to federal courts for the "review of decisions of State courts declaring State statutes which [they] seek to enforce to be repugnant to the" Fourteenth Amendment.[103]

Due Process and the Police Power

Definition.--The police power of a State today embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public safety, health, morals, and is not confined to the suppression of what is offensive, disorderly, or unsanitary, but extends to what is for the greatest welfare of the State.[104]

Limitations on the Police Power.--Because the police power of a State is the least limitable of the exercises of government, such limitations as are applicable thereto are not readily definable. Being neither susceptible of circ.u.mstantial precision, nor discoverable by any formula, these limitations can be determined only through appropriate regard to the subject matter of the exercise of that power.[105] "It is settled [however] that neither the 'contract' clause nor the 'due process' clause had the effect of overriding the power of the State to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property [or other vested] rights are held subject to its fair exercise."[106] Insofar as the police power is utilized by a State, the means employed to effect its exercise can be neither arbitrary nor oppressive, but must bear a real and substantial relation to an end which is public, specifically, the public health, public safety, or public morals, or some other phase of the general welfare.[107]

The general rule is that if a police power regulation goes too far, it will be recognized as a taking of property for which compensation must be paid.[108] Yet where mutual advantage is a sufficient compensation, an ulterior public advantage may justify a comparatively insignificant taking of private property for what in its immediate purpose seems to be a private use.[109] On the other hand, mere "cost and inconvenience (different words, probably, for the same thing) would have to be very great before they could become an element in the consideration of the right of a State to exert its reserved power or its police power."[110]

Moreover, it is elementary that enforcement of uncompensated obedience to a regulation pa.s.sed in the legitimate exertion of the police power is not a taking without due process of law.[111] Similarly, initial compliance with a regulation which is valid when adopted occasions no forfeiture of the right to protest when that regulation subsequently loses its validity by becoming confiscatory in its operation.[112]