Thus, in the Slaughter-House Cases,[61] in which the clause was timidly invoked by a group of butchers challenging on several grounds the validity of a Louisiana statute which conferred upon one corporation the exclusive privilege of butchering cattle in New Orleans, the Court declared that the prohibition against a deprivation of property "has been in the Constitution since the adoption of the Fifth Amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions of nearly all the States, as a restraint upon the power of the States. * * * We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision."[62] Four years later, in Munn v. Illinois,[63] the Court again refused to interpret the due process clause as invalidating State legislation regulating the rates charged for the transportation and warehousing of grain. Overruling contentions that such legislation effected an 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."[64]
Deploring such attempts, nullified consistently in the preceding cases, to convert the due process clause into a substantive restraint on the powers of the States, Justice Miller in Davidson v. New Orleans[65] obliquely counseled against a departure from the conventional application of the clause, albeit he acknowledged the difficulty of arriving at a precise, all inclusive, definition thereof. "It is not a little remarkable," he observed, "that while this provision has been in the 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 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, * * *"[66]
In thus persisting in its refusal to review, on other than procedural grounds, the constitutionality of State action, the Court was rejecting additional business; but a bare half-dozen years later, in again reaching a result in harmony with past precedents, the Justices gave fair warning of the imminence of a modification of their views. Thus, after noting that the due process clause, by reason of its operation upon "all the powers of government, legislative as well as executive and judicial," could not be appraised solely in terms of the "sanction of settled usage," Justice Mathews, speaking for the Court in Hurtado v. California,[67] declared that, "arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal 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."[68] Thus were the States put on notice that every species of State legislation, whether dealing with procedural or substantive rights, was subject to the scrutiny of the Court when the question of its essential justice is raised.
Police Power: Liberty: Property
What induced the Court to dismiss its fears of upsetting the balance in the distribution of powers under the Federal System and to enlarge its own supervisory powers over state legislation were the appeals more and more addressed to it for adequate protection of property rights against the remedial social legislation which the States were increasingly enacting in the wake of industrial expansion. At the same time the added emphasis on the due process clause which satisfaction of these requests entailed afforded the Court an opportunity to compensate for its earlier virtual nullification of the privileges and immunities clause of the amendment. So far as such modification of its position needed to be justified in legal terms, theories concerning the relation of government to private rights were available to demonstrate the impropriety of leaving to the state legislatures the same ample range of police power they had enjoyed prior to the Civil War. Preliminary, however, to this consummation the Slaughter-House Cases and Munn v. Illinois had to be overruled in part, at least, and the views of the dissenting Justices in those cases converted into majority doctrine.
About twenty years were required to complete this process, in the course of which the restricted view of the police power advanced by Justice Field in his dissent in Munn v. Illinois,[69] namely, that it is solely a power to prevent injury, was in effect ratified by the Court itself. This occurred in 1887, in Mugler v. Kansas,[70] where the power was defined as embracing no more than the power to promote public health, morals, and safety. During the same interval, ideas embodying the social compact and natural rights, which had been espoused by Justice Bradley in his dissent in the Slaughter-House Cases,[71] had been transformed tentatively into constitutionally enforceable limitations upon government,[72] with the consequence that the States, in exercising their police power, could foster only those purposes of health, morals, and safety which the Court had enumerated and could employ only such means as would not unreasonably interfere with the fundamental natural rights of liberty and property, which Justice Bradley had equated with freedom to pursue a lawful calling and to make contracts for that purpose.[73]
So having narrowed the scope of the State's police power in deference to the natural rights of liberty and property, the Court next proceeded to read into the latter currently accepted theories of laissez faire economics, reinforced by the doctrine of evolution as elaborated by Herbert Spencer, to the end that "liberty", in particular, became synonymous with governmental hands-off in the field of private economic relations. In Budd v. New York,[74] decided in 1892, Justice Brewer in a dictum declared: "The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government." And to implement this point of view the Court next undertook to water down the accepted maxim that a State statute must be presumed to be valid until clearly shown to be otherwise.[75] The first step was taken with the opposite intention. This occurred in Munn v. Illinois,[76] where the Court, in sustaining the legislation before it, declared: "For our purposes we must 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."[77] Ten years later, in Mugler v. Kansas[78] this procedure was improved upon, and a State-wide anti-liquor law was sustained on the basis of the proposition that deleterious social effects of the excessive use of alcoholic liquors were sufficiently notorious for the Court to be able to take notice of them; that is to say, for the Court to review and appraise the considerations which had induced the legislature to enact the statute in the first place.[79] However, in Powell v. Pennsylvania,[80] decided the following year, the Court, being confronted with a similar act involving oleomargarine, concerning which it was unable to claim a like measure of common knowledge, fell back upon the doctrine of presumed validity, and declaring that "it does not appear upon the face of the statute, or from any of the facts of which the Court must take judicial cognizance, that it infringes rights secured by the fundamental law, * * *"[81] sustained the measure.
In contrast to the presumed validity rule under which the Court ordinarily is not obliged to go beyond the record of evidence submitted by the litigants in determining the validity of a statute, the judicial notice principle, as developed in Mugler v. Kansas, carried the inference that unless the Court, independently of the record, is able to ascertain the existence of justifying facts accessible to it by the rules governing judicial notice, it will be obliged to invalidate a police power regulation as bearing no reasonable or adequate relation to the purposes to be subserved by the latter; namely, health, morals, or safety. For appraising State legislation affecting neither liberty nor property, the Court found the rule of presumed validity quite serviceable; but for invalidating legislation 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 latter was transferred the task of demonstrating that a statute interfering with the natural right of liberty or property was in fact "authorized" by the Constitution and not merely that the latter did not expressly prohibit enactment of the same.
Liberty of Contract—Labor Relations
Although occasionally acknowledging in abstract terms that freedom of contract is not absolute but is subject to restraint by the State in the exercise of its police powers, the Court, in conformity with the aforementioned theories of economics and evolution, was in fact committed to the principle that freedom of contract is the general rule and that legislative authority to abridge the same could be justified only by exceptional 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[82] and Lochner v. New York,[83] decisions which bear the same relation to each other as Powell v. Pennsylvania[84] and Mugler v. Kansas.[85]