imposed by the constitution in behalf of civil liberty: the prohibition of slavery and involuntary servitude in the thirteenth amendment, the question what amounts to a deprivation of life, liberty or property without due process of law, or the denial of the equal protection of the laws, under the fourteenth amendment, etc., etc., through the whole list. Moreover, we shall have a discussion of these constitutional questions running throughout the book; we shall not find the discussion of what amounts to due process of law in one chapter or section, the equal protection of the laws in another, etc.; but rather, a discussion, for example, of the power of the State to regulate railway rates in a given manner, all the constitutional questions involved being treated together. That this arrangement of the subject has some advantages is obvious, especially from the point of view of the student of government. At the same time the defects of the method are equally obvious: in the course of each discussion many constitutional provisions are involved and nowhere does one find a complete, connected statement of just what, for example, due process of law is, not with reference to one law but as a whole. Moreover, if we adopt Mr. Freund's wider definition, there is added to the already vast field a discussion of the commerce clause, not from the point of view of finding out what regulations of commerce are denied to the States, but from that of ascertaining what Congress can do for the promotion of the general welfare by virtue of its power under this clause. Logically, also, we should omit to discuss the question of whether there could be regulations of inter-state commerce by Congress which had for their objects not the promotion of the public welfare but, say, the maintenance of national existence. The same thing is true of any other power vested in the Congress of the United States; under Mr. Freund's definition it must be discussed in so far and only in so far as it may be exerted for the promotion of the public welfare. While not denying, therefore, the value of treatises on the police power as a whole, I am inclined to think that a series of treatises on the commerce clause, the thirteenth amendment, the fourteenth amendment, etc., will be of still greater utility for the student of constitutional law. Take a concrete case: a State enacts a law regulating the charges, say of grain elevators (as in the case of Munn vs. Illinois 1). Is the law constitutional? It is unless the power to act is denied to the State. The constitutional lawyer therefore runs over in his mind one by one, each one being a complete problem by itself, the various possibilities: is the exercise of this power vested exclusively in the United States government? If not, does it deprive any one of liberty or property without due process of law, or deny the equal protection of the laws, or do any other forbidden thing? If it does none of these things, then it is a valid police law. 1 (1876) 94 U.S. 113. Thus far the problem has been treated as one arising purely under the constitution of the United States. The constitutional lawyer's task is, however, not yet completed; he must reckon with the State constitution. The people of the State have not seen fit to delegate all the residuary powers of government left in their hands. by the national constitution to their representatives in the State government, but have, wisely or unwisely, deemed it necessary to impose additional constitutional limitations. To ascertain, then, the extent of the power which the State government may exert for the promotion of the welfare of the inhabitants of the State, we must still farther reduce our residuum of governmental power, which we have above called the police power, by subtracting this farther denial of power; what we have left is still unclassified, residuary power to govern the police power as it actually exists in any particular State. Here again the desired result is attained by determining the scope of what is to be subtracted: whatever is not denied, is granted. It remains now, in closing, to point out that this method of treating the problem does not necessarily, and should not, lead to any narrower view of the powers of the States to promote the general welfare or - what amounts to the same thing any undue widening of the scope of the constitutional limitations. Our courts should not forget — as apparently some of our State courts too often do that as a result of the distribution of governmental power in our system, our states are the residuary legatees of governmental authority; that they are the bodies vested with power and authority to meet the changing needs of society, as industry and commerce develop and new forms of business and industrial organization grow up, by appropriate changes in the law: perhaps by regulating in new ways activities of the individual which in the past have been subjected to some regulation, or even, as in Munn vs. Illinois, subjecting to regulation, in the interests of society, as activities which at an earlier period did not need such regulation. Nor, as the late Mr. Thayer so often and so strenuously insisted,1 should they forget that they are not the primary but only the secondary guardians of constitutional liberty. Only when an individual who thinks that his rights are being infringed chooses to call upon them for aid do they get an opportunity to pass upon the constitutionality of the statutes passed by the legislature, and it may be that this will not be done until many years after the passage of the law. From this results that fundamental principle of our constitutional law that a statute duly passed by the legislative branch of the government is not to be treated as null and void because unconstitutional unless the 1 Thayer, Origin and Scope of the American Doctrine of Constitutional Law, pp. 4-12. * As in the case of the United States Bank, the validity of the charter to which did not come before the Supreme Court for decision until after the first charter had expired and the second had been granted. McCulloch vs. Maryland (1819) 4 Wheat. 316. court feel a clear and strong conviction that it violates one of the provisions of the constitution in behalf of the liberty of the individual.1 When, therefore, a statute is challenged as unconstitutional, the burden of proof is upon the shoulders of the one who makes the challenge; the State need not prove its power to act; the individual must satisfy the court of the denial of power to the State. It is especially desirable that in dealing with that vague phrase, "due process of law," the courts should bear in mind these fundamental principles. Originating in England, as the phrase did, it was used there to place limitations not upon the legislative but upon the executive branch of the government, and therefore had a very definite meaning, viz., that in dealing with the individual the executive department should proceed only in accordance with the principles of the common law or of statutes duly enacted by the parliament. Due process of law there was, and is today, whatever parliament enacts. Carried over into our system as a limitation upon the legislative branch of the government, the phrase at once becomes vague and uncertain. As we all know, as interpreted by the Supreme Court it amounts in substance to saying that the government must not act unreasonably; that its laws shall not be arbitrary or in violation of the fundamental principles of liberty and justice. In applying this test the Supreme Court of the United States has, I think, on the whole come very near to following the principle suggested by Mr. Justice Holmes, now of the Supreme Court itself, but at that time writing as a dissenting member of the Supreme Court of Massachusetts. In discussing the validity of a law regulating relations between employer and employee, which the majority of the court were holding to be unconstitutional, he said: If I assume... that, speaking as a political economist, I should agree in condemning the law, still I should not be willing to think myself authorized to overturn legislation on that ground, unless I thought that an honest difference of opinion was impossible, or pretty nearly so. It is in such cases as Munn vs. Illinois,3 Davidson vs. New Orleans, Hurtado vs. California, Holden vs. Hardy, and many others which might be cited, that this attitude of the court clearly appears. Occasional lapses, such as, for example, that in Norwood vs. Baker, are sooner or later, if not expressly, at least in effect, overruled. As Mr. 1 As Mr. Thayer points out, when the question is one of the allotment of power by the national constitution between the national government and the states, and the enactment in question is one by a state legislature, a different principle may well govern and perhaps has governed the court in settling the constitutional question. Thayer, op. cit., 12-30; Thayer, Cases on Constitutional Law, pp. 156-157. 2 Hurtado vs. California (1884) 110 U.S. 516; Holden vs. Hardy (1898) 169 U.S. 366. 3 (1876) 94 U.S. 113. 4 (1877) 96 U.S. 97. (1884) 110 U.S. 516. 7 (1898) 172 U.S. 269. (1898) 169 U.S 366. 8 (1898) French vs. Barber Asphalt Paving Co. (1901) 181 U.S. 324. Justice Brown said in Holden vs. Hardy: "The constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment, should not be so construed as to deprive the States of the power so to amend their laws as to make them conform to the wishes of their citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land. . . . We concur in the following observations of the Supreme Court of Utah in this connection: . . . Though reasonable doubts may exist as to the power of the legislature to pass a law, or as to whether the law is calculated or adapted to promote the health, safety or comfort of the people, or to secure good order, or promote the general welfare, we must resolve them in favor of the right of that department of the government."" THE POLICE POWER, A PRODUCT OF THE RULE OF REASON BY THE HON. GEORGE W. WICKERSHAM, FORMER UNITED STATES ATTORNEY-GENERAL (From the Harvard Law Review, February, 1914) A well-known writer on the police power calls it "The law of overruling necessity," and he adds: The law of necessity has been stated to be an exception to all human ordinances and constitutions, yet has been frequently decided to be subject to the law of reason, and subject to the control of the courts. It would be more accurate to say that the entire doctrine of the police power of the states is the creation of the courts, evolved from the necessity of harmonizing provisions of written constitutions of states and nation with the imperative needs of civilized society. It is the result of the application of the "rule of reason" in the construction of written constitutions. For the absence of exact definitions of such words as "to deprive," "liberty," "property," "due process of law," "equal protection of the laws," "privileges and immunities," and the like, in constitutions,2 left room for but one conclusion, to paraphrase the language of the Chief Justice in the Standard Oil Case, which is, that it was expressly designed not to unduly limit or extend the application of the constitution by precise definition, but, while fixing a standard, that is, by declaring the ulterior boundaries 1 Prentice, W. P., The Police Power, p. 6 * See Francis J. Swayze on the Fourteenth Amendment, 26 Harv. L. Rev. 1. which could not be transgressed with impunity, to leave it to be determined by the light of reason, guided by the principles of law, and the duty to apply and enforce the public policy embodied in the constitution in every given case, whether any particular act of a legislative body was, within the contemplation of the constitution, permitted or forbidden. That is to say, the rule of construction, to be applied to constitutions as well as to statutes, must be the spirit and intent of the people or their representatives, and therefore the prohibition of a constitution must be held to extend to acts "even if not within the literal terms" of the constitution, "if they are within its spirit, because done with an intent to bring about the harmful results which it was the purpose of the" constitution to prohibit. And on the other hand, that such prohibition must not be held to extend to acts which, while within the literal terms of a constitutional prohibition, could not have been intended by the people to be prohibited to legislative competence, because of the obvious injury to public interests which would result from such prohibition. The inhabitants of the thirteen original states of our federal union, with common accord, embodied their conceptions of proper governmental organization in written constitutions, carefully devised to insure the expression and limitations of the powers of government, and the distribution of those powers among three distinct, although coördinated, branches. "The theory of our government, state and nation, is opposed to the deposit of unlimited power anywhere." 2 In almost every one of these constitutions there was embodied a bill of rights an enumeration of the rights which the people intended to secure to every individual of the community, for his protection in his life, his liberty, his right to labor in his own way, and the protection of the property which should be the fruit of his labor. These provisions, more or less detailed in the constitutions of the different states, were designed to restrict and control the activities of the legislative and executive branches of the government, and thus to secure the blessings of civil liberty to the people of those states and their posterity. "Civil liberty," said Judge Sharswood, "the great end of all human society and government, is that state in which each individual has the power to pursue his own happiness according to his own views of his interest, and the dictates of his conscience, unrestrained except by equal, just and impartial laws." 3 The fact that the Constitution of the United States, as originally framed, contained no bill of rights, was the subject of serious com 1 United States vs. American Tobacco Co., 221 U.S. 106, 177. 2 Loan Association vs. Topeka, 20 Wall. (U.S.) 655. 31 Sharswood's Blackstone, 127, note 8. |