POLITICAL EDUCATION, CONSERVATIVE ANALYSIS
POLITICS, SOCIETY, & THE SOVEREIGN STATE
Website of Dr. Almon Leroy Way, Jr.
WITH COMMENTARY & ANNOTATIONS
Section 1. Rights Guaranteed
Citizens of the United States
Privileges and Immunities
Due Process of Law
The Development of Substantive Due Process
``Persons'' Defined
Police Power Defined and Limited
``Liberty''
Liberty of Contract
Regulatory Labor Laws Generally
Laws Regulating Hours of Labor
Laws Regulating Labor in Mines
Laws Prohibiting Employment of Children in Hazardous Occupations
Laws Regulating Payment of Wages
Minimum Wage Laws
Workers' Compensation Laws
Collective Bargaining
Regulation of Business Enterprises: Rates, Charges, and Conditions of Service
``Business Affected With a Public Interest''
Nebbia v. New York
Judicial Review of Publicly Determined Rates and Charges
Development
Limitations on Judicial Review
The Ben Avon Case
History of the Valuation Question
Regulation of Public Utilities (Other Than Rates)
In General
Compulsory Expenditures: Grade Crossings, and the Like
Compellable Services
Safety Regulations Applicable to Railroads
Statutory Liabilities and Penalties Applicable to Railroads
Regulation of Corporations, Business, Professions, and Trades
Corporations
Business in General
Laws Prohibiting Trusts, Discrimination, Restraint of Trade
Laws Preventing Fraud in Sale of Goods and Securities
Banking, Wage Assignments and Garnishment
Insurance
Miscellaneous Businesses and Professions
Protection of State Resources
Oil and Gas
Protection of Property and Agricultural Crops
Water
Fish and Game
Ownership of Real Property: Limitations, Rights
Zoning and Similar Actions
Estates, Succession, Abandoned Property
Health, Safety, and Morals
Safety Regulations
Sanitation
Food, Drugs, Milk
Intoxicating Liquor
Regulation of Motor Vehicles and Carriers
Protecting Morality
Vested Rights, Remedial Rights, Political Candidacy
Control of Local Units of Government
Taxing Power
Generally
Public Purpose
Other Considerations Affecting Validity: Excessive Burden; Ratio of
Amount Of Benefit Received
Estate, Gift and Inheritance Taxes
Income Taxes
Franchise Taxes
Severance Taxes
Real Property Taxes
Jurisdiction to Tax
Sales/Use Taxes
Land
Tangible Personalty
Intangible Personalty
Transfer (Inheritance, Estate, Gift) Taxes
Corporate Privilege Taxes
Individual Income Taxes
Corporate Income Taxes: Foreign Corporations
Insurance Company Taxes
Procedure in Taxation
Generally
Notice and Hearing in Relation to Taxes
Notice and Hearing in Relation to Assessments
Collection of Taxes
Sufficiency and Manner of Giving Notice
Sufficiency of Remedy
Laches
Eminent Domain
Substantive Due Process and Noneconomic Liberty
Abortion
Privacy: Its Constitutional Dimensions
Family Relationships
Liberty Interests of Retarded and Mentally Ill: Commitment and Treatment
``Right to Die''
Procedural Due Process: Civil
Some General Criteria
Ancient Use and Uniformity
Equality
Due Process, Judicial Process, and Separation of Powers
Power of the States to Regulate Procedure
Generally
Commencement of Actions
Pleas in Abatement
Defenses
Amendments and Continuances
Costs, Damages, and Penalties
Statutes of Limitation
Evidence and Presumptions
Jury Trials
Appeals
Jurisdiction
Generally
In Personam Proceedings Against Individuals
Suability of Foreign Corporations
Actions in Rem: Proceedings Against Land
Actions in Rem: Attachment Proceedings
Actions in Rem: Estates, Trusts, Corporations
Notice: Service of Process
The Procedure Which Is Due Process
The Interests Protected: Entitlements and Positivist Recognition
Proceedings in Which Procedural Due Process Must Be Observed
When Is Process Due
The Requirements of Due Process
Procedural Due Process: Criminal
Generally
The Elements of Due Process
Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine
Other Aspects of Statutory Notice
Entrapment
Criminal Identification Process
Initiation of the Prosecution
Fair Trial
Guilty Pleas
Prosecutorial Misconduct
Proof, Burden of Proof, and Presumptions
Sentencing
The Problem of the Incompetent or Insane Defendant or Convict
Corrective Process: Appeals and Other Remedies
Rights of Prisoners
Probation and Parole
The Problem of the Juvenile Offender
The Problem of Civil Commitment
Equal Protection of the Laws
Scope and Application
State Action
``Persons''
``Within Its Jurisdiction''
Equal Protection: Judging Classifications by Law
Traditional Standard: Restrained Review
The New Standards: Active Review
Testing Facially Neutral Classifications Which Impact on Minorities
Traditional Equal Protection: Economic Regulation and Related Exercises of the Police Powers
Taxation
Classification for Purpose of Taxation
Foreign Corporations and Nonresidents
Income Taxes
Inheritance Taxes
Motor Vehicle Taxes
Property Taxes
Special Assessment
Police Power Regulation
Classification
Other Business and Employment Relations
Labor Relations
Monopolies and Unfair Trade Practices
Administrative Discretion
Social Welfare
Punishment of Crime
Equal Protection and Race
Overview
Education
Development and Application of ``Separate But Equal''
Brown v. Board of Education
Brown's Aftermath
Implementation of School Desegregation
Northern Schools: Interdistrict and Intradistrict Desegregation
Efforts to Curb Busing and Other Desegregatio Remedies
Termination of Court Supervision
Juries
Capital Punishment
Housing
Other Areas of Discrimination
Transportation
Public Facilities
Marriage
Judicial System
Public Designation
Public Accommodations
Elections
Permissible Remedial Utilization of Racial Classifications
The New Equal Protection
Classifications Meriting Close Scrutiny
Alienage and Nationality
Sex
Illegitimacy
Fundamental Interests: The Political Process
Voter Qualifications
Access to the Ballot
Apportionment and Districting
Weighing of Votes
The Right to Travel
Durational Residency Requirements
Marriage and Familial Relations
Poverty and Fundamental Interests: The Intersection of Due Process and Equal Protection
Generally
Criminal Procedure
The Criminal Sentence
Voting
Access to Courts
Educational Opportunity
Abortion
Section 2. Apportionment of Representation
Sections 3 and 4. Disqualification and Public Debt
Section 5. Enforcement
Generally
State Action
Congressional Definition of Fourteenth Amendment Rights
Amendment XIV, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In the Dred Scott Case,\1\ Chief Justice Taney for the Court ruled that United States citizenship was enjoyed by two classes of individuals: (1) white persons born in the United States as descendents of ``persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States and [who] became also citizens of this new political body,'' the United States of America, and (2) those who, having been ``born outside the dominions of the United States,'' had migrated thereto and been naturalized therein. The States were competent, he continued, to confer state citizenship upon anyone in their midst, but they could not make the recipient of such status a citizen of the United States. The ``Negro,'' or ``African race,'' according to the Chief Justice, was ineligible to attain United States citizenship, either from a State or by virtue of birth in the United States, even as a free man descended from a Negro residing as a free man in one of the States at the date of ratification of the Constitution.\2\ Congress, first in Sec. 1 of the Civil Rights Act of 1866 \3\ and then in the first sentence of Sec. 1 of the Fourteenth Amendment,\4\ set aside the Dred Scott holding in a sentence ``declaratory of existing rights, and affirmative of existing law. . . .''\5\
\2\The controversy, political as well as constitutional, which this case stirred and still stirs, is exemplified and analyzed in the material collected in S. Kutler, The Dred Scott Decision: Law or Politics? (1967).
\3\``That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude . . . shall have the same right[s]. . . .'' Ch. 31, 14 Stat. 27.
\4\The proposed amendment as it passed the House contained no such provision, and it was decided in the Senate to include language like that finally adopted. Cong. Globe, 39th Cong., 1st Sess. 2560, 2768-69, 2869 (1866). The sponsor of the language said: ``This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is . . . a citizen of the United States.'' Id. at 2890. The legislative history is discussed at some length in Afroyim v. Rusk, 387 U.S. 253, 282-86 (1967) (Justice Harlan dissenting).
\5\United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898).
While clearly establishing a national rule on national citizenship and settling a controversy of long standing with regard to the derivation of national citizenship, the Fourteenth Amendment did not obliterate the distinction between national and state citizenship, but rather preserved it.\6\ The Court has accorded the first sentence of Sec. 1 a construction in accordance with the congressional intentions, holding that a child born in the United States of Chinese parents who themselves were ineligible to be naturalized is nevertheless a citizen of the United States entitled to all the rights and privileges of citizenship.\7\ Congress' intent in including the qualifying phrase ``and subject to the jurisdiction thereof,'' was apparently to exclude from the reach of the language children born of diplomatic representatives of a foreign state and children born of alien enemies in hostile occupation, both recognized exceptions to the common-law rule of acquired citizenship by birth,\8\ as well as children of members of Indian tribes subject to tribal laws.\9\ The lower courts have generally held that the citizenship of the parents determines the citizenship of children born on vessels in United States territorial waters or on the high seas.\10\
\7\United States v. Wong Kim Ark, 169 U.S. 649 (1898).
\8\Id. at 682.
\9\Id. at 680-82; Elk v. Wilkins, 112 U.S. 94, 99 (1884).
\10\United States v. Gordon, 25 Fed. Cas. 1364 (C.C.S.D.N.Y. 1861) (No. 15,231); In re Look Tin Sing, 21 F. 905 (C.C.Cal. 1884); Lam Mow v. Nagle, 24 F.2d 316 (9th Cir. 1928).
In Afroyim v. Rusk,\11\ a divided Court extended the force of this first sentence beyond prior holdings, ruling that it withdrew from the Government of the United States the power to expatriate United States citizens against their will for any reason. ``[T]he Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit. It is true that the chief interest of the people in giving permanence and security to citizenship in the Fourteenth Amendment was the desire to protect Negroes. . . . This undeniable purpose of the Fourteenth Amendment to make citizenship of Negroes permanent and secure would be frustrated by holding that the Government can rob a citizen of his citizenship without his consent by simply proceeding to act under an implied general power to regulate foreign affairs or some other power generally granted.''\12\ In a subsequent decision, however, the Court held that persons who were statutorily naturalized by being born abroad of at least one American parent could not claim the protection of the first sentence of Sec. 1 and that Congress could therefore impose a reasonable and non-arbitrary condition subsequent upon their continued retention of United States citizenship.\13\ Between these two decisions there is a tension which should call forth further litigation efforts to explore the meaning of the citizenship sentence of the Fourteenth Amendment.
\12\Afroyim v. Rusk, 387 U.S. 253, 262-63 (1967). Four dissenters, Justices Harlan, Clark, Stewart, and White, controverted the Court's reliance on the history and meaning of the Fourteenth Amendment and reasserted Justice Frankfurter's previous reasoning in Perez. Id. at 268.
\13\Rogers v. Bellei, 401 U.S. 815 (1971). This, too, was a five-to-four decision, Justices Blackmun, Harlan, Stewart, and White, and Chief Justice Burger in the majority, and Justices Black, Douglas, Brennan, and Marshall dissenting.
Citizens of the United States within the meaning of this Amendment must be natural and not artificial persons; a corporate body is not a citizen of the United States.\14\
Unique among constitutional provisions, the privileges and immunities clause of the Fourteenth Amendment enjoys the distinction of having been rendered a ``practical nullity'' by a single decision of the Supreme Court issued within five years after its ratification. In the Slaughter-House Cases,\15\ a bare majority of the Court frustrated the aims of the most aggressive sponsors of this clause, to whom was attributed an intention to centralize ``in the hands of the Federal Government large powers hitherto exercised by the States'' with a view to enabling business to develop unimpeded by state interference. This expansive alteration of the federal system was to have been achieved by converting the rights of the citizens of each State as of the date of the adoption of the Fourteenth Amendment into privileges and immunities of United States citizenship and thereafter perpetuating this newly defined status quo through judicial condemnation of any state law challenged as ``abridging'' any one of the latter privileges. To have fostered such intentions, the Court declared, would have been ``to transfer the security and protection of all the civil rights . . . to the Federal Government, . . . to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States,'' and to ``constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. . . . [The effect of] so great a departure from the structure and spirit of our institutions . . . is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character. . . . We are convinced that no such results were intended by the Congress . . . , nor by the legislatures . . . which ratified'' this amendment, and that the sole ``pervading purpose'' of this and the other War Amendments was ``the freedom of the slave race.''
Conformably to these conclusions, the Court advised the New Orleans butchers that the Louisiana statute, conferring on a single corporation a monopoly of the business of slaughtering cattle, abrogated no rights possessed by them as United States citizens; insofar as that law interfered with their claimed privilege of pursuing the lawful calling of butchering animals, the privilege thus terminated was merely one of ``those which belonged to the citizens of the States as such.'' Privileges and immunities of state citizenship had been ``left to the state governments for security and protection'' and had not been placed by this clause ``under the special care of the Federal Government.'' The only privileges which the Fourteenth Amendment protected against state encroachment were declared to be those ``which owe their existence to the Federal Government, its National character, its Constitution, or its laws.''\16\ These privileges, however, had been available to United States citizens and protected from state interference by operation of federal supremacy even prior to the adoption of the Fourteenth Amendment. The Slaughter-House Cases, therefore, reduced the privileges and immunities clause to a superfluous reiteration of a prohibition already operative against the states.
Although the Court has expressed a reluctance to attempt a definitive enumeration of those privileges and immunities of United States citizens which are protected against state encroachment, it nevertheless felt obliged in the Slaughter-House Cases ``to suggest some which owe their existence to the Federal Government, its National character, its Constitution, or its laws.''\17\ Among those which it then identified were the right of access to the seat of Government and to the seaports, subtreasuries, land officers, and courts of justice in the several States, the right to demand protection of the Federal Government on the high seas or abroad, the right of assembly, the privilege of habeas corpus, the right to use the navigable waters of the United States, and rights secured by treaty. In Twining v. New Jersey,\18\ the Court recognized ``among the rights and privileges'' of national citizenship the right to pass freely from State to State,\19\ the right to petition Congress for a redress of grievances,\20\ the right to vote for national officers,\21\ the right to enter public lands,\22\ the right to be protected against violence while in the lawful custody of a United States marshal,\23\ and the right to inform the United States authorities of violation of its laws.\24\ Earlier, in a decision not mentioned in Twining, the Court had also acknowledged that the carrying on of interstate commerce is ``a right which every citizen of the United States is entitled to exercise.''\25\
\18\211 U.S. 78, 97 (1908).
\19\Citing Crandall v. Nevada, 73 U.S. (65 Wall.) 35 (1868). It was observed in United States v. Wheeler, 254 U.S. 281, 299 (1920), that the statute at issue in Crandall was actually held to burden directly the performance by the United States of its governmental functions. Cf. Passenger Cases, 48 U.S. (7 How.) 282, 491-92 (1849) (Chief Justice Taney dissenting). Four concurring Justices in Edwards v. California, 314 U.S. 160, 177, 181 (1941), would have grounded a right of interstate travel on the privileges and immunities clause. More recently, the Court declined to ascribe a source but was content to assert the right to be protected. United States v. Guest, 383 U.S. 745, 758 (1966); Shapiro v. Thompson, 394 U.S. 618, 629-31 (1969). Three Justices ascribed the source to this clause in Oregon v. Mitchell, 400 U.S. 112, 285-87 (1970) (Justices Stewart and Blackmun and Chief Justice Burger, concurring in part and dissenting in part).
\20\Citing United States v. Cruikshank, 92 U.S. 542 (1876).
\21\Citing Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley v. Sinkler, 179 U.S. 58 (1900). Note Justice Douglas' reliance on this clause in Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (concurring in part and dissenting in part).
\22\Citing United States v. Waddell, 112 U.S. 76 (1884).
\23\Citing Logan v. United States, 144 U.S. 263 (1892).
\24\Citing In re Quarles and Butler, 158 U.S. 532 (1895).
\25\Crutcher v. Kentucky, 141 U.S. 47, 57 (1891).
In modern times, the Court has continued the minor role accorded to the clause, only occasionally manifesting a disposition to enlarge the restraint which it imposes upon state action. Colgate v. Harvey,\26\ which was overruled five years later,\27\ represented the first attempt by the Court since adoption of the Fourteenth Amendment to convert the privileges and immunities clause into a source of protection of other than those ``interests growing out of the relationship between the citizen and the national government.'' Here, the Court declared that the right of a citizen resident in one State to contract in another, to transact any lawful business, or to make a loan of money, in any State other than that in which the citizen resides was a privilege of national citizenship which was abridged by a state income tax law excluding from taxable income interest received on money loaned within the State. In Hague v. CIO,\28\ two and perhaps three justices thought that freedom to use municipal streets and parks for the dissemination of information concerning provisions of a federal statute and to assemble peacefully therein for discussion of the advantages and opportunities offered by such act was a privilege and immunity of a United States citizen, and in Edwards v. California\29\ four Justices were prepared to rely on the clause.\30\ In Oyama v. California,\31\ in a single sentence the Court agreed with the contention of a native-born youth that a state Alien Land Law, applied to work a forfeiture of property purchased in his name with funds advanced by his parent, a Japanese alien ineligible for citizenship and precluded from owning land, deprived him ``of his privileges as an American citizen.'' The right to acquire and retain property had previously not been set forth in any of the enumerations as one of the privileges protected against state abridgment, although a federal statute enacted prior to the proposal and ratification of the Fourteenth Amendment did confer on all citizens the same rights to purchase and hold real property as white citizens enjoyed.\32\
\27\Madden v. Kentucky, 309 U.S. 83, 93 (1940).
\28\307 U.S. 496, 510-18 (1939) (Justices Roberts and Black; Chief Justice Hughes may or may not have concurred on this point. Id. at 532). Justices Stone and Reed preferred to base the decision on the due process clause. Id. at 518.
\29\314 U.S. 160, 177-83 (1941).
\30\See also Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (Justice Douglas); id. at 285-87 (Justices Stewart and Blackmun and Chief Justice Burger).
\31\332 U.S. 633, 640 (1948).
\32\Civil Rights Act of 1866, ch. 31, 14 Stat. 27, now 42 U.S.C. Sec. 1982, as amended.
In other respects, however, claims based on this clause have been rejected.\33\
The Development of Substantive Due Process
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,''\34\ 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,''\35\ 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 constitutional history due process of law as it occurs in the Fifth Amendment had been recognized as a restraint upon government, but, with the conspicuous exception of the Dred Scott decision,\36\ only in the narrower sense that a legislature must provide ``due process for the enforcement of law.''
\35\Carroll v. Greenwich Ins. Co., 199 U.S. 401, 410 (1905). See also French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).
\36\Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857), is the exception.
Thus, in the Slaughter-House Cases,\37\ in which the clause was invoked by a group of butchers challenging 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 Constitution since the adoption of the Fifth Amendment, as a restraint upon the Federal power. It is also to be found in some forms of expression in the constitution 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.'' Four years later, in Munn v. Illinois,\38\ 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. Rejecting contentions that such legislation effected an unconstitutional 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.''
\38\94 U.S. 113, 134 (1877).
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,\39\ 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 Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised 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 Constitution, 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 of 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 Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require. . . .''
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. 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,\40\ declared that ``[a]rbitrary 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 multitude. And the limitations imposed by our constitutional 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 institutions. 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.'' 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 was raised.
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 was the increasing number of cases seeking protection of property rights against the remedial social legislation States were enacting in the wake of industrial expansion. At the same time, the added emphasis on the due process clause 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 to this consummation, however, the Slaughter-House Cases and Munn v. Illinois had to be overruled at least in part, 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,\41\ namely, that it is solely a power to prevent injury, was in effect ratified by the Court itself. This occurred in Mugler v. Kansas,\42\ 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,\43\ had been transformed tentatively into constitutionally enforceable limitations upon government.\44\ The consequence was that the States in exercising their police powers 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 fundamentally 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.\45\
\42\123 U.S. 623, 661 (1887).
\43\83 U.S. (16 Wall.) 36, 113-14, 116, 122 (1873).
\44\Loan Association v. Topeka, 87 U.S. (20 Wall.) 655, 662 (1875). ``There are . . . rights in every free government beyond the control of the State. . . . There are limitations on [governmental power] which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist. . . .''
\45\``Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all. . . . This right to choose one's calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man's property right. . . . A law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law.'' Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 116, 122 (1873) (Justice Bradley dissenting).
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 concepts currently accepted theories of laissez faire economics, reinforced by the doctrine of Social Darwinism 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,\46\ Justice Brewer in 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.\47\ The first step was taken with opposite intention. This occurred in Munn v. Illinois,\48\ where the Court, in sustaining the legislation before it, declared: ``For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed.'' Ten years later, in Mugler v. Kansas,\49\ 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 consideration which had induced the legislature to enact the statute in the first place.\50\ However, in Powell v. Pennsylvania,\51\ decided the following year, the Court, 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 sustained the measure, 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.''
\47\See Fletcher v. Peck, 10. U.S. (6 Cr.) 87, 128 (1810).
\48\94 U.S. 113, 123, 182 (1877).
\49\123 U.S. 623 (1887).
\50\Id. at 662. ``We cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact . . . that . . . pauperism, and crime . . . are, in some degree, at least, traceable to this evil.''
\51\127 U.S. 678, 685 (1888).
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 constituting 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 unconstitutionality to the State seeking enforcement. To the State was transferred the task of demonstrating that a statute interfering with the natural right of liberty or property was in fact ``authorized'' by the Constitution, and not merely that the latter did not expressly prohibit enactment of the same.
In 1934 the Court in Nebbia v. New York\52\ discarded this approach to economic legislation, and has not since returned to it. The modern approach was evidenced in a 1955 decision reversing a lower court's judgment invalidating a state statutory scheme regulating the sale of eyeglasses to the advantage of ophthalmologists and optometrists in private professional practice and adversely to opticians and to those employed by or using space in business establishments. ``The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. . . . We emphasize again what Chief Justice Waite said in Munn v. Illinois, 94 U.S. 113, 134, `For protection against abuses by legislatures the people must resort to the polls, not to the courts.'''\53\ Yet the Court went on to assess the reasons which might have justified the legislature in prescribing the regulation at issue, leaving open the possibility that some regulation might be found unreasonable.\54\ More recent decisions, however, have limited inquiry to whether the legislation is arbitrary or irrational, and have not addressed ``reasonableness.''\55\
\53\Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955).
\54\Id. at 487, 491.
\55\The Court has pronounced a strict ``hands-off'' standard of judicial review, whether of congressional or state legislative efforts to structure and accommodate the burdens and benefits of economic life. Such legislation is to be ``accorded the traditional presumption of constitutionality generally accorded economic regulations'' and is to be ``upheld absent proof of arbitrariness or irrationality on the part of Congress.'' That the accommodation among interests which the legislative branch has struck ``may have profound and far-reaching consequences . . . provides all the more reason for this Court to defer to the congressional judgment unless it is demonstrably arbitrary or irrational.'' Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 83-84 (1978). See also Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14-20 (1976); Hodel v. Indiana, 452 U.S. 314, 333 (1981); New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 106-08 (1978); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-25 (1978); Brotherhood of Locomotive Firemen v. Chicago, R.I. & P. R.R., 393 U.S. 129, 143 (1968); Ferguson v. Skrupa, 372 U.S. 726, 730, 733 (1963).
``Persons'' Defined. -- Notwithstanding the historical controversy that has been waged concerning whether the framers of the Fourteenth Amendment intended the word ``person'' to mean only natural persons, or whether the word was substituted for the word ``citizen'' with a view to protecting corporations from oppressive state legislation,\56\ the Supreme Court, as early as the Granger Cases,\57\ 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,\58\ and although prior decisions had held that the ``liberty'' guaranteed by the Fourteenth Amendment is the liberty of natural, not artificial, persons,\59\ nevertheless a newspaper corporation was sustained, in 1936, in its objection that a state law deprived it of liberty of press.\60\ As to the natural persons protected by the due process clause, these include all human beings regardless of race, color, or citizenship.\61\
\57\Munn v. Illinois, 94 U.S. 113 (1877). In a case arising under the Fifth Amendment, decided almost at the same time, the Court explicitly declared the United States ``equally with the States . . . are prohibited from depriving persons or corporations of property without due process of law.'' Sinking Fund Cases, 99 U.S. 700, 718-19 (1879).
\58\Smyth v. Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Co. v. Paramount Exch., 262 U.S. 544, 550 (1923); Liggett Co. v. Baldridge, 278 U.S. 105 (1928).
\59\Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906); Western Turf Ass'n v. Greenberg, 204 U.S. 359, 363 (1907); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). Earlier, in Northern Securities Co. v. United States, 193 U.S. 197, 362 (1904), a case interpreting the federal antitrust law, Justice Brewer, in a concurring opinion, had declared that ``a corporation . . . is not endowed with the inalienable rights of a natural person.''
\60\Grosjean v. American Press Co., 297 U.S. 233, 244 (1936) (``a corporation is a `person' within the meaning of the equal protection and due process of law clauses''). In First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), faced with the validity of state restraints upon expression by corporations, the Court did not determine that corporations have First Amendment liberty rights--and other constitutional rights--but decided instead that expression was protected, irrespective of the speaker, because of the interests of the listeners. See id. at 778 n.14 (reserving question). But see id. at 809, 822 (Justices White and Rehnquist dissenting) (corporations as creatures of the state have the rights state gives them).
\61\Yick Wo v. Hopkins, 118 U.S. 356 (1886); Terrace v. Thompson, 263 U.S. 197, 216 (1923). See Hellenic Lines v. Rhodetis, 398 U.S. 306, 309 (1970).
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.\62\ Similarly, municipal 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.\63\ 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.\64\
\63\City of Pawhuska v. Pawhuska Oil Co., 250 U.S. 394 (1919); City of Trenton v. New Jersey, 262 U.S. 182 (1923); Williams v. Mayor of Baltimore, 289 U.S. 36 (1933). But see Madison School Dist. v. WERC, 429 U.S. 167, 175 n.7 (1976) (reserving question whether municipal corporation as an employer has a First Amendment right assertable against State).
\64\Coleman v. Miller, 307 U.S. 433, 441, 442, 443, 445 (1939);
Boynton v. Hutchinson Gas Co., 291 U.S. 656 (1934); South Carolina Hwy.
Dept. v. Barnwell Bros., 303 U.S. 177 (1938).
The converse is not true, however, and the interest of a state
official in vindicating the Constitution gives him no legal standing to
attack the constitutionality of a state statute in order to avoid
compliance with it. Smith v. Indiana, 191 U.S. 138 (1903); Braxton
County Court v. West Virginia, 208 U.S. 192 (1908); Marshall v. Dye, 231
U.S. 250 (1913); Stewart v. Kansas City, 239 U.S. 14 (1915). See also
Coleman v. Miller, 307 U.S. 433, 437-46 (1939).
Police Power Defined and Limited. -- 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, and 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.\65\
Because the police power is the least limitable of the exercises of government, such limitations as are applicable are not readily definable. These limitations can be determined, therefore, only through appropriate regard to the subject matter of the exercise of that power.\66\ ``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.''\67\ 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.\68\
\67\Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548, 558 (1914).
\68\Liggett Co. v. Baldridge, 278 U.S. 105, 111-12 (1928); Treigle v. Acme Homestead Ass'n, 297 U.S. 189, 197 (1936).
A general rule often invoked 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.\69\ 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.\70\ 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.''\71\ Moreover, it is elementary that enforcement of uncompensated obedience to a regulation passed in the legitimate exertion of the police power is not a taking without due process of law.\72\ 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.\73\
\70\Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911).
\71\Erie R.R. v. Williams, 233 U.S. 685, 700 (1914).
\72\New Orleans Public Service v. New Orleans, 281 U.S. 682, 687 (1930).
\73\Abie State Bank v. Bryan, 282 U.S. 765, 776 (1931).
``Liberty''. -- The ``liberty'' guaranteed by the due process clause has been variously defined by the Court, as will be seen hereinafter. In general, in the early years, it meant almost exclusively ``liberty of contract,'' but with the demise of liberty of contract came a general broadening of ``liberty'' to include personal, political and social rights and privileges.\74\ Nonetheless, the Court is generally chary of expanding the concept absent statutorily recognized rights.\75\
\75\See the substantial confinement of the concept in Meachum v. Fano, 427 U.S. 215 (1976); and Montanye v. Haymes, 427 U.S. 236 (1976), in which the Court applied to its determination of what is a liberty interest the ``entitlement'' doctrine developed in property cases, in which the interest is made to depend upon state recognition of the interest through positive law, an approach contrary to previous due process-liberty analysis. Cf. Morrissey v. Brewer, 408 U.S. 471, 482 (1972). For more recent cases, see DeShaney v. Winnebago County Social Servs. Dep't, 489 U.S. 189 (1989) (no Due Process violation for failure of state to protect an abused child from his parent, even though abuse had been detected by social service agency); Collins v. City of Harker Heights, 112 S. Ct. 1061 (1992) (failure of city to warn its employees about workplace hazards does not violate due process; the due process clause does not impose a duty on the city to provide employees with a safe working environment).
Regulatory Labor Laws Generally. -- Liberty of contract, a concept originally advanced by Justices Bradley and Field in the Slaughter-House Cases,\76\ was elevated to the status of accepted doctrine in Allgeyer v. Louisiana.\77\ Applied repeatedly in subsequent cases as a restraint on federal and state power, freedom of contract was also alluded to as a property right, as is evident in the language of the Court in Coppage v. Kansas.\78\ ``Included in the right of personal liberty and the right of private property--partaking of the nature of each--is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense.''
\77\165 U.S. 578, 589 (1897). ``The liberty mentioned in that [Fourteenth] Amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.''
\78\236 U.S. 1, 14 (1915).
By a process of reasoning that was almost completely discarded during the Depression, the Court was nevertheless able, prior thereto, to sustain state ameliorative legislation by acknowledging that freedom of contract was ``a qualified and not an absolute right. . . . Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interest of the community. . . . In dealing with the relation of the employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression.''\79\
While continuing to acknowledge in abstract terms that freedom of contract is not absolute, the Court in fact was committed to the principle that freedom of contract is the general rule and that legislative authority to abridge it could be justified only by exceptional circumstances. 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\80\ and Lochner v. New York,\81\ decisions which bear the same relation to each other as Powell v. Pennsylvania\82\ and Mugler v. Kansas.\83\
\81\198 U.S. 45 (1905).
\82\127 U.S. 678 (1888).
\83\123 U.S. 623 (1887).
In Holden v. Hardy,\84\ 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.''
Seven years later, however, a radically altered Court was predisposed in favor of the doctrine of judicial notice, and applied that doctrine to conclude in Lochner v. New York\85\ that a law restricting employment in bakeries to ten hours per day and 60 hours per week was an unconstitutional interference with the right of adult laborers, sui juris, to contract for their means of livelihood. Denying that in so holding the Court was in effect substituting 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 accumulated 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?''\86\
\86\Id. at 58-59.
Two dissenting opinions were filed in the case. Justice Harlan, pointing to 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 prone to suffer irritations of the eyes, lungs, and bronchial passages, concluded that the very existence of such evidence left the reasonableness of the measure open to discussion and that the latter fact of itself put the statute within legislative discretion. ``The responsibility therefor 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 assigned 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. . . . [T]he public interests 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 Constitution.''\87\
The second dissenting opinion, written by Justice Holmes, has received the greater measure of attention because the views expressed therein were a forecast of the line of reasoning to be followed by the Court some decades later. ``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 constitutions 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 constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relations 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 Constitution. . . . 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.''\88\
In part, Justice Holmes' criticism of his colleagues was unfair, for his ``rational and fair man'' could not function in a vacuum, and, in appraising the constitutionality of state legislation, could no more avoid being guided by his preferences or ``economic predilections'' than were the Justices constituting the majority. Insofar as he accepted 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 assumption 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\89\ and Muller v. Oregon\90\ decisions modifying Lochner, 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 constitutionality 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 of work,\91\ it generally intimated that the facts thus submitted by way of justification had been authenticated sufficiently for it to take judicial cognizance thereof. On the other hand, whenever it chose to invalidate comparable legislation, such as enactments establishing minimum wage for women and children,\92\ 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 statute as an arbitrary interference with freedom of contract.
\90\208 U.S. 412 (1908).
\91\Id.
\92\Adkins v. Children's Hospital, 261 U.S. 525 (1923); Stettler v. O'Hara, 243 U.S. 629 (1917); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).
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. 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,\93\ but, in upholding state legislation designed to protect workers in their efforts to organize and bargain collectively, the Court had to reconsider the scope of an employer's liberty of contract and recognize a correlative liberty of employees that state legislatures could protect.
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 to mitigate the effects of such coercion. By such modification of its views, liberty, in the constitutional 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.
Laws Regulating Hours of Labor. -- Even during the Lochner era, the due process clause was construed as permitting enactment by the States of maximum hours laws applicable to women workers\94\ and to workers in specified lines of work thought to be physically demanding or otherwise worthy of special protection.\95\ Because of the almost plenary powers of the State and its municipal subdivisions to determine the conditions for work on public projects, statutes limiting the hours of labor on public works were also upheld at a relatively early date.\96\
\95\See, e.g., Holden v. Hardy, 169 U.S. 366 (1898) (statute limiting the hours of labor in mines and smelters to eight hours per day); Bunting v. Oregon, 243 U.S. 426 (1917) (statute limiting to ten hours per day, with the possibility of 3 hours per day of overtime at time-and-a-half pay, work in any mill, factory, or manufacturing establishment).
\96\Atkin v. Kansas, 191 U.S. 207 (1903).
Laws Regulating Labor in Mines. -- The regulation of mines being patently within the police power, States during this period were also upheld in the enactment of laws providing for appointment of mining inspectors and requiring payment of their fees by mine owners,\97\ compelling employment of only licensed mine managers and mine examiners, and imposing upon mine owners liability for the willful failure of their manager and examiner to furnish a reasonably safe place for workmen.\98\ Other similar regulations which have been sustained have included laws requiring that underground passageways meet or exceed a minimum width,\99\ that boundary pillars be installed between adjoining coal properties as a protection against flood in case of abandonment,\100\ and that washhouses be provided for employees.\101\
\98\Wilmington Mining Co. v. Fulton, 205 U.S. 60 (1907).
\99\Barrett v. Indiana, 229 U.S. 26 (1913).
\100\Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914).
\101\Booth v. Indiana, 237 U.S. 391 (1915).
Law Prohibiting Employment of Children in Hazardous Occupations. -- To make effective its prohibition against the employment of persons under 16 years of age in dangerous occupations, a State has been held to be competent to require employers at their peril to ascertain whether their employees are in fact below that age.\102\
Laws Regulating Payment of Wages. -- No unconstitutional deprivation of liberty of contract was deemed to have been occasioned by a statute requiring redemption in cash of store orders or other evidences of indebtedness issued by employers in payment of wages.\103\ Nor was any constitutional defect discernible in laws requiring railroads to pay their employees semimonthly\104\ and to pay them on the day of discharge, without abatement or reduction, any funds due them.\105\ Similarly, freedom of contract was held not to be infringed by an act requiring that miners, whose compensation was fixed on the basis of weight, be paid according to coal in the mine car rather than at a certain price per ton for coal screened after it has been brought to the surface, and conditioning such payment on the presence of no greater percentage of dirt or impurities than that ascertained as unavoidable by the State Industrial Commission.\106\
\104\Erie R.R. v. Williams, 233 U.S. 685 (1914).
\105\St. Louis, I. Mt. & S.P. Ry. v. Paul, 173 U.S. 404 (1899).
\106\Rail Coal Co. v. Ohio Industrial Comm'n, 236 U.S. 338 (1915). See also McLean v. Arkansas, 211 U.S. 539 (1909).
Minimum Wage Laws. -- The theory that a law prescribing minimum wages for women and children violates due process by impairing freedom of contract was finally discarded in 1937.\107\ The modern theory of the Court, particularly when labor is the beneficiary of legislation, was stated by Justice Douglas for a majority of the Court, in the following terms: ``Our recent decisions make plain that we do not sit as a superlegislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare. The legislative power has limits. . . . But the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare; they may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws are avoided.''\108\ Proceeding from this basis the Court sustained a Missouri statute giving employees the right to absent themselves four hours on election day, between the opening and closing of the polls, without deduction of wages for their absence.
\108\Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952).
It was admitted that this was a minimum wage law, but, said Justice Douglas, ``the protection of the right of suffrage under our scheme of things is basic and fundamental,'' and hence within the police power. ``Of course,'' the Justice added, ``many forms of regulation reduce the net return of the enterprise. . . . Most regulations of business necessarily impose financial burdens on the enterprise for which no compensation is paid. Those are part of the costs of our civilization. Extreme cases are conjured up where an employer is required to pay wages for a period that has no relation to the legitimate end. Those cases can await decision as and when they arise. The present law has no such infirmity. It is designed to eliminate any penalty for exercising the right of suffrage and to remove a practical obstacle to getting out the vote. The public welfare is a broad and inclusive concept. The moral, social, economic, and physical well-being of the community is one part of it; the political well-being, another. The police power which is adequate to fix the financial burden for one is adequate for the other. The judgment of the legislature that time out for voting should cost the employee nothing may be a debatable one. It is indeed conceded by the opposition to be such. But if our recent cases mean anything, they leave debatable issues as respects business, economic, and social affairs to legislative decision. We could strike down this law only if we returned to the philosophy of the Lochner, Coppage, and Adkins cases.''\109\
Workers' Compensation Laws. -- ``This court repeatedly has upheld the authority of the States to establish by legislation departures from the fellow-servant rule and other common-law rules affecting the employer's liability for personal injuries to the employee.''\110\ ``These decisions have established the propositions that the rules of law concerning the employer's responsibility for personal injury or death of an employee arising in the course of employment are not beyond alteration by legislation in the public interest; that no person has a vested right entitling him to have these any more than other rules of law remain unchanged for his benefit; and that, if we exclude arbitrary and unreasonable changes, liability may be imposed upon the employer without fault, and the rules respecting his responsibility to one employee for the negligence of another and respecting contributory negligence and assumption of risk are subject to legislative change.''\111\ Accordingly, a state statute which provided an exclusive system to govern the liabilities of employers and the rights of employees and their dependents to compensation for disabling injuries and death caused by accident in certain hazardous occupations,\112\ was held not to work a denial of due process in rendering the employer liable irrespective of the doctrines of negligence, contributory negligence, assumption of risk, and negligence of fellow-servants, nor in depriving the employee or his dependents of the higher damages which, in some cases, might be rendered under these doctrines.\113\ Likewise, an act which allowed an injured employee an election of remedies permitting restricted recovery under a compensation law although guilty of contributory negligence, and full compensatory damages under the Employers' Liability Act, did not deprive an employer of his property without due process of law.\114\
\111\Arizona Employers' Liability Cases, 250 U.S. 400, 419-20 (1919).
\112\In determining what occupations may be brought under the designation of ``hazardous,'' the legislature may carry the idea to the ``vanishing point.'' Ward & Gow v. Krinsky, 259 U.S. 503, 520 (1922).
\113\New York Central R.R. v. White, 243 U.S. 188 (1917); Mountain Timber Co. v. Washington, 243 U.S. 219 (1917).
\114\Arizona Employers' Liability Cases, 250 U.S. 400 (1919).
The imposition upon coal mine operators, and ultimately coal consumers, of the liability of compensating former employees who terminated work in the industry before passage of the law for black lung disabilities contracted in the course of their work was sustained by the Court as a rational measure to spread the costs of the employees' disabilities to those who have profited from the fruits of their labor.\115\ Legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations, but it must take account of the realities previously existing, i.e., that the danger may not have been known or appreciated, or that actions might have been taken in reliance upon the current state of the law; therefore, legislation imposing liability on the basis of deterrence or of blameworthiness might not have passed muster.
Contracts limiting liability for injuries, consummated in advance of the injury received, may be prohibited by the legislature, which may further stipulate that subsequent acceptance of benefits under such contracts shall not constitute satisfaction of a claim for injuries thereafter sustained.\116\ Also, as applied to a nonresident alien employee hired within the State but injured outside, an act forbidding any contracts exempting employers from liability for injuries outside the State has been construed as not denying due process to the employer.\117\ The fact that a State, after having allowed employers to cover their liability with a private insurer, subsequently withdrew that privilege and required them to contribute to a state insurance fund was held to effect no unconstitutional deprivation as applied to an employer who had obtained protection from an insurance company before this change went into effect.\118\ As long as the right to come under a workmen's compensation statute is optional with an employer, the latter, having chosen to accept benefits thereof, is estopped from attempting to escape its burdens by challenging the constitutionality of a provision thereof which makes the finding of fact of an industrial commission conclusive if supported by any evidence regardless of its preponderance.\119\
\117\Alaska Packers Ass'n v. Industrial Accident Comm'n, 294 U.S. 532 (1935).
\118\Thornton v. Duffy, 254 U.S. 361 (1920).
\119\Booth Fisheries v. Industrial Comm'n, 271 U.S. 208 (1926).
When, by the terms of a workers' compensation statute, the wrongdoer, in case of wrongful death, is obliged to indemnify the employer or the insurance carrier of the employer of the decedent, in the amount which the latter were required under the act to contribute into special compensation funds, no unconstitutional deprivation of the wrongdoer's property was discernible.\120\ By the same course of reasoning neither the employer nor the carrier was held to have been denied due process by another provision in an act requiring payments by them, in case an injured employee dies without dependents, into special funds to be used for vocational rehabilitation or disability compensation of injured workers of other establishments.\121\ Compensation also need not be based exclusively on loss of earning power, and an award authorized by statute for injuries resulting in disfigurement of the face or head, independent of compensation for inability to work, has been conceded to be neither an arbitrary nor oppressive exercise of the police power.\122\
\121\Sheehan Co. v. Shuler, 265 U.S. 371 (1924); New York State Rys. v. Shuler, 265 U.S. 379 (1924).
\122\New York Cent. R.R. v. Bianc, 250 U.S. 596 (1919). Attorneys are not deprived of property or their liberty of contract by restriction imposed by the State on the fees which they may charge in cases arising under the workmen's compensation law. Yeiser v. Dysart, 267 U.S. 540 (1925).
Collective Bargaining. -- During the 1930s, liberty, as translated into what one Justice labeled the Allgeyer-Lochner-Adair-Coppage doctrine,\123\ lost its potency as an obstacle to legislation calculated to enhance the bargaining capacity of workers as against that already possessed by their employers. Prior to the manifestation, in Senn v. Tile Layers Union,\124\ of a greater willingness to defer to legislative judgment as to the wisdom and need of such enactments, the Court had, on occasion, sustained measures affecting the employment relationship, e.g., a statute requiring every corporation to furnish, upon request by any employee being discharged or leaving its service, a letter, signed by the superintendent or manager, setting forth the nature and duration of the employee's service and the true cause for leaving.\125\ Added provisions that such letters should be on plain paper selected by the employee, signed in ink and sealed, and free from superfluous figures and words, were also sustained as not amounting to any unconstitutional deprivation of liberty and property.\126\ On the ground that the right to strike is not absolute, the Court in a similar manner upheld a statute under which a labor union official was punished for having ordered a strike for the purpose of coercing an employer to pay a wage claim of a former employee.\127\
\124\301 U.S. 486 (1937).
\125\Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922). In conjunction with its approval of this statute, the Court also sanctioned judicial enforcement of a local policy rule which rendered illegal an agreement of several insurance companies having a local monopoly of a line of insurance, to the effect that no company would employ within two years anyone who had been discharged from, or left, the service of any of the others.
\126\Chicago, R.I. & P. Ry. v. Perry, 259 U.S. 548 (1922).
\127\Dorchy v. Kansas, 272 U.S. 306 (1926).
The significance of Senn v. Tile Layers Union\128\ as an indicator of the range of the alteration of the Court's views concerning the constitutionality of state labor legislation, derives in part from the fact that the statute upheld therein was not appreciably different from that voided in Truax v. Corrigan.\129\ Both statutes withheld the remedy of injunction. Because, however, the invalidated act did not contain the more liberal and also more precise definition of a labor dispute set forth in the sustained enactment and, above all, did not affirmatively purport to sanction peaceful picketing only, the Court was enabled to maintain that Truax v. Corrigan, insofar as ``the statute there in question was . . . applied to legalize conduct which was not simply peaceful picketing,'' was distinguishable. The statute upheld in Senn authorized the giving of publicity to labor disputes, declared peaceful picketing and patrolling lawful, and prohibited the granting of injunctions against such conduct; the statute was applied to deny an injunction to a tiling contractor being picketed by a union because he refused to sign a closed shop agreement containing a provision requiring him to abstain from working in his own business as a tile layer or helper. Inasmuch as the enhancement of job opportunities for members of the union was a legitimate objective, the State was held competent to authorize the fostering of that end by peaceful picketing, and the fact that the sustaining of the union in its efforts at peaceful persuasion might have the effect of preventing Senn from continuing in business as an independent entrepreneur was declared to present an issue of public policy exclusively for legislative determination.\130\
\129\257 U.S. 312 (1921).
\130\Cases disposing of the contention that restraints on picketing amount to a denial of freedom of speech and constitute therefore a deprivation of liberty without due process of law have been set forth under the First Amendment. See pp. 1102, 1121, supra.
Years later, the policy of many state legislatures had evolved in the direction of attempting to control the abuse of the enormous economic power that previously enacted protective measures had enabled labor unions to amass, and here too the Court found restrictions constitutional. Thus the Court upheld application of a state prohibition on racial discrimination by unions, rejecting claims that the measure interfered unlawfully with the union's right to choose its members and abridged its property rights, and liberty of contract. Inasmuch as the union ``[held] itself out to represent the general business needs of employees'' and functioned ``under the protection of the State,'' the union was deemed to have forfeited the right to claim exemption from legislation protecting workers against discriminatory exclusion.\131\