Chapter 3

Munn v. Illinois: The First Schism Between
Active State Liberalism and Natural Rights

Kevin Walker, M.A., ABD

Claremont Graduate University

The previous chapter explained how the classic meaning and exercise of state police power was not merely restrictive.  State authority over the lives of citizens was not intended only to regulate unruly business practices, making it bound to clash with capitalism and laissez-faire economics in the coming industrial age.[1] Police power was instead, by the classic definition, the means by which a state could ensure the protection of property, and the ability of citizens to pursue it – i.e., how it could protect both the end of government, as well as the means to that end, which is the central point of my thesis.  This included, of course, the ability of state governments to make the pursuit of wealth a benefit for the whole, whether that meant preventing dangerous or immoral business practices, or simply ensuring that no business interests came to benefit too much at the expense of others; and, based on that, it then included the variety of moral laws and protections of religious liberty that would follow.  But those were secondary aspects of what police powers were for: it was to protect existing property, and encourage the pursuit of more, among all citizens equally.

This was the point of Justice Samuel Miller’s opinion in the Slaughterhouse Cases (1873).  Miller hardly did the things for which he was later blamed, insisting on a “hands-off” approach for the Court when it came to reviewing state laws.  The fear of becoming a “perpetual censor” might have resonated with his fellow justices in the majority, but his reasoning indicated that there was indeed much more to do when it came to police power jurisprudence: each state had an intended purpose, and, should the occasion arise, it was indeed the mandate of the Fourteenth Amendment to compel states of fulfill that end, primarily through Congress, but also through the Supreme Court.  This might include ensuring that the state’s use of police power, when directed at industry, fulfilled its own intended purpose of protecting the rights of all citizens to keep and pursue property – which might indeed involve very un-even regulatory laws meant to set things right.  Perhaps there was a “virtual” monopoly, an unfair business practice, or ill-treatment of laborers, which might include excessively low wages or high hours, as it happened in later years.  But such a problem could only be remedied by a specific sort of state intervention: the reforming legislature had to protect the end of government – the right to keep and pursue property – but also the means to that end – the ability of state power to go against its own republican neutrality, for a time, in order to recover a just order in the long run.  It was the intent of the Fourteenth Amendment to empower the national government to ensure that such regulations really did fulfill the right purpose, and in the right way.

Yet the Supreme Court encountered difficulties in maintaining this view in the years following the Slaughterhouse precedent.  There was in fact a split between the ends and the means of a republic, as my thesis holds, in the case of Munn v. Illinois (1877).  The ruling established the power of state governments to go quite beyond their intended purpose, and become the mere levers of popular movements rather than serve the whole as truly republican institutions.

I. Republican Remedies Face New Problems: The Grain Elevator

A grain elevator would have been a marvelous thing to see for American farmers in the 1870s.  By this time, it had become an icon of the Midwest.  At the annual gathering of the American Institute, a congregation of science enthusiasts, Reverend F.A.P. Bernard identified the true fruits of modern science in his keynote address: “the industrial arts were born of it.” In the “concourse of industries,” the president “was proud to affirm that America held an honored place.” Among other things, “[t]he planning machine is American.  Navigation by sea is American.  The mower and reaper are American.” And, last but not least: “the grain elevator is American.”[2] It was the classic synthesis that Americans were particularly adept, the coming-together of modern technology with ancient agrarian life.  One imagines second, third, or fourth generation country-folk, so attuned to the dignity of working the land and transporting one’s own good to the market, now gazing in awe at this new contraption – not only for its ability, but now for its necessity.

There was indeed no other way to distribute grain without railroad lines and freighters in the Great Lakes; this called for vast quantities of grain stored in central locations, and available for rapid movement on to railroad cars and sea vessels. “In this way the largest traffic between the citizens of the country north and west of Chicago and the citizens of the country lying on the Atlantic coast north of Washington is in grain which passes through the elevators of Chicago,” Ira Munn’s Brief said in Munn v. Illinois (1876).  “[T]he trade in grain is carried on by the inhabitants of seven or eight of the great States of the West with four or five of the States lying on the sea-shore, and forms the largest part of inter-state commerce in these States.”[3] Clearly this was not the sort of Dynamo-like technology one would see at the World’s Fair; it was instead a machine that would soon work its way directly and permanently into the critical needs of national life.  It would, of course, be dwarfed in height by sky-scrapers in the twentieth century, and surpassed in principle by airplanes, microchips, and administrative management that followed to make the modern American mind.  But given its newness, the grain elevator was able to teach the true lesson about modern technology: the greater the technological power, the more exclusive the privilege among those who hold it.  In practice, in the 1870s, that exclusivity meant monopoly, and the outrageous fees that companies could impose on farmers.  The high prices of such machines no doubt compounded with greater safety precautions, in light of many horrific incidents: the floor of one elevator in Boston “gave way, burying a man under the grain, so as to cause death by suffocation,” the Christian Union reported in 1870.  The owner was acquitted of manslaughter, since the jury recognized that “everything was done which, under the circumstances, could be done to relieve the building.”[4] Market competition might have improved on the situation over time, providing lower prices for safer elevators; but those improvements were slow in developing, and the farmers and laborers were left to suffer.

The Illinois Constitution framed in 1870 reflected the condition of local politics of the time.  Urban interested dominated the state convention: the entirety of Article 13 granted specific protections of the elevators, also called “public warehouses.” It seemed to reflect the same classic definition of police power, particularly in Section 7, which stated that the state assembly would be empowered to pass legislation for the “protection of producers, shippers and receivers of grain and produce”; in practice, though, this opened the way for monopolies, thus revealing how difficult it would be to maintain the classic view of police power with the rise of modern industry.

In reaction to the former provision, though, came one of the most influential agrarian movements of its day: the Order of Husbandry, better known as the “Granges.” It was “not a mere concourse of people impelled by causal emotion,” the Massachusetts Plowman reported, but “an organized system, possessing vast influence and capable of concerted action.” This was hardly the sort of organization expected from farmers, who tended to be more isolated from each other than urban labor unions and other political interests.  “The political significance of such an organization can hardly be overestimated.  A body of such thorough organization is a formidable instrument in the hands of able men, and the Order comprises many such.” It could, no doubt, “affect permanent changes in legislation.”[5] In some states, the Granges simply purchased the elevators themselves.  But in Illinois, where the elevators were reserved for public use under the state constitution, they sought were forced to seek greater political control their state assembly.  Since the grain elevators in Illinois were protected by the state constitution, the Grange’s political leverage could only have one goal: price controls.  The butchers in the Slaughterhouse Cases had challenged the Louisiana state law under the Fourteenth Amendment as well; but the Supreme Court had sustained the law because of the critical health and safety concerned involved, and the way they did nothing to prevent butchers from pursuing their vocation.  The Illinois state law, however, had nothing to do with health and safety concerns; it was entirely about prices.

A. Ira Y. Munn, Citizen of the United States

From Ira Munn’s point of view, this certainly appeared to be a use of public power for very narrow factional interests – as indeed it was.  Munn and his associate, George Scott, otherwise known as hard-working, self-made businessmen, who had suffered and survived the recent fires that devastated Chicago, and developed a newer and safer sort of grain elevator, were now charged under the Act to Regulate Public Warehouses of 1871.  The rate had in fact been settled for the past nine years; they were always “agreed upon and established by the different elevators or warehouses in the city of Chicago,” according to the Plaintiff’s amicus brief.  “[T]he rates have been annually published in one or more newspapers printed in said city, in the month of January in each year, as the established rates for the year then next ensuing such publication.”[6] They were certain that the sudden and recent nature of the law indicated a truly arbitrary and unfair attack on their business.  Indeed, later historians looked back and showed just how fair and stable the prices had been.  “The elevator price in Chicago was set by concerted action of the owners and was stable for years,” according to Edmund Kitch and Clara Ann Bowler in their archival research on the era.  The statue was not aimed at collusive pricing designed to gouge farmers, since “the statute explicitly provided a procedure for uniform price setting.”[7] This raised serious question about the fairness of the law, since it charged the warehousemen for the rates they had always held, and which the farmers had always agreed to until quite recently.

For this reason, Munn and his associates felt justified in ignoring the legislation, and continued to charge the same amount they had for the last ten years of business.  Those prices, which were long viewed as fair and had not changed over time, had only recently invoked the ire of local farmers.  Their capture of the state legislature was no doubt a shock.  Facing the sentence of a $10,000 fine and the possibility of losing his state license, Munn pled guilty and appealed his case to the Illinois Supreme Court, where he challenged the Act under the state’s own Bill of Rights, its contraction to Article IV – and, most importantly, under the Fourteenth Amendment of the U.S. Constitution.

B. Illinois, the Sovereign Community

Chief Justice Sidney Breese of the Illinois Supreme Court acknowledged the challenge under the Fourteenth Amendment in his opinion, yet he dismissed it in two short paragraphs.  He agreed to at least one

aspect of Justice Samuel Miller’s opinion in the Slaughterhouse Cases, i.e., that the Amendment was meant to “shield a certain class, who had been born and reared in slavery, from pernicious legislation, by which their newly acquired rights by their emancipation might be so crippled as to render them wholly worthless.”[8] It appeared to be a surface-level application of Justice Miller’s opinion in Slaughterhouse: the only meaning the Amendment could possibly have was its short-term, immediate, Reconstruction-era goal, and treating it as anything else was an abuse of judicial power.  Breese, however, paid no attention to the long-standing nature of the fee, and the sudden ire of the Grangers in support of the law.

Breese instead devoted greater attention to Munn’s appeal to the state constitution – which, like many state constitutions, was a grant of substantive rights, and a series of institutions designed to protect them.  He looked in particular to Article IV, which in Sec. 22 prohibited the state legislature from “[g]ranting to any corporation, association or individual any special or exclusive privilege, immunity or franchise what-ever.” This, of course, was in plain contradiction with Article 13, which, again, granted special protections specifically for grain elevators – a point that Chief Justice Morrison Waite would make much of when the case reached the Supreme Court.  But Judge Breese paid no attention to this, and proceeded to defend the legislation on the basis of what he saw as the public interest.  It was, of course, a public interest that had much to do with the critical role of farmers in local affairs; he considered an interest “general in its objects, operative throughout the State,” and having everything to do with an “existing business closely associated with the agricultural interests of the state.”[9]

The Illinois Bill of Rights began with the standard set of basics: that all men are born free and equal, with respect to certain God-given rights to “life, liberty, and the pursuit of happiness,” and that “[t]o secure these rights and the protection of property, governments are instituted among men, deriving their just powers from the consent of the governed” (Sec. 1); and that “[n]o person shall be deprived of life, liberty or property without due process of law” (Sec. 2).  The current Bill of Rights, though, was hardly as fixed and enduring in Justice Breese’s mind, since he had the curious fortune of occupying the bench for the last three constitutional conventions in Illinois, in 1818, 1848, and finally 1870.[10] Witnessing such a repeated resetting of all precedent might explain his conclusion in the Munn case: the state constitution was in fact a less significant thing compared to the state legislature.  Indeed, Justice Breese had little concept of what a constitution was for, compared to the power of a sovereign body, nor did he see any qualifications of legislative legitimacy aside from the rights appearing the letter of the law itself.

There was only one distinguishing feature of a state law that went too far: when it strips something “of those attributes by which alone it is distinguished as property,” Breese wrote.  A state legislature could regulate trade in property of all kinds, but they could not totally annihilate commerce in any species of property, and so condemn the property itself to extinction.”[11] But plainly those who owned and operated grain elevators were not deprived of their livelihood in the least by having to limit their rates to what the state legislature thought was a fair standard.  Despite the extent of the regulation, the existence of the right was still there.

It was, no doubt, a strange idea of fairness: there was practically no limit, it seemed, to what a state could regulate, so long as it did not destroy the property involved.  Gone were the days of Chief Justice John Marshall’s maxim, that “[a]n unlimited power to tax involves, necessarily, a power to destroy.” Breese, like Marshall, thought of it in terms of degrees, knowing that “there is a limit beyond which no institution and no property can bear taxation.”[12] But unlike Marshall, there was only one degree that mattered: so long as there was still even the slightest glimmer of substantive rights remaining, there could be no complaint against a regulation, at least until voters took it to the polls.  At best, such a system could at least guarantee that “private property may not receive remote and consequent injury.” All of this depended on the state constitution’s guarantee that the “owner shall not be deprived of his property without due process of law, etc.,” Breese wrote.  “If, in the exercise of any one of the admitted functions of government, a person’s property is rendered less valuable, can it be seriously claimed this provision in the Bill of Rights has been infringed?” Breese was clearly certain that substantive rights were protected well enough through procedural due process; it was apparently inconceivable that an exercise of local legislative power could harm its own members, nor could Munn even remotely claim that level of harm here.  The law was passed, following all necessary parliamentary procedure, through an elected Assembly and Senate, which was “the guardian of the public interest and welfare,” he concluded.  State legislative powers were, after all, what “[e]very sovereign power possesses, inherently,” meaning that its acts were “unrestricted legislative power, where the organic law imposes no restraints.”[13] Certainly such a power would seem to include the ability to break up monopolies, which held sole control over grain-storage technology, and threatened to harm the people with exorbitant fees.  It was, of course, the view of state authority that would ultimately prevail when the case made its way to the Supreme Court.

II. The Fourteenth Amendment Returns

The justices of the United States Supreme Court probably thought, or certainly hoped, that such disputes between state legislation and the Fourteenth Amendment were settled with Slaughterhouse.  The role of becoming a “perpetual censor” on all state legislation was a troubling prospect, which was no doubt mounting with each new claim against state legislative power among special interests and their attorneys who wished very much to invoke national judicial authority over local laws.  It was clear, though, that Justice Miller’s opinion did not exclude the Court’s involvement in local police power cases as so many supposed: there were still questions about the “beneficial use of property,” and there was still the need to declare the proper function of police power, which could proceed only “until some case involving those privileges may make it necessary to do so,” i.e., when the Court would need to intervene.[14]

It was hoped that the judiciary could stay out of Fourteenth Amendment dilemmas.  There was, after all, an Enforcement Clause, which empowered Congress to produce extensive Reconstruction legislation intended specifically for the protection of former slaves.  The Amendment was meant to direct attention to state governments.  The claim that “no state shall” could only mean to limit the sovereign power of local legislatures.  But many critics pointed out that the nature of Reconstruction legislation was aimed far more at individuals, contrary to the Amendment’s Equal Protection Clause.  Samuel T. Spear, for instance, writing for The Independent, pointed out that the Ku-Klux Act of 1871, better known as the Enforcement Act, “professes to be an act to enforce the Fourteenth Amendment.” The problem, though, was that “all the provisions of the act are unauthorized by the amendment,” i.e., that no person, now a citizen, will receive any of the discriminatory treatments that the Amendment forbids states from committing.  “Does the amendment authorize this legislation?” Spear asked.  “There is not a particle of authority for it.  It is simply usurpation.” It would, no doubt, lead to a congressional takeover, of the sort that Anti-Federalists feared a century before; it would “extend its jurisdiction over the whole field hitherto occupied by the states,” he wrote.  If the nation continued down such a path, the only possible check on the national government would be the government itself, since the states lost their ability to limit the national scope of power.  “A more dangerous political heresy never existed in this country, or one more fruitful of ultimate evil, unless it be seasonably corrected,” he concluded.  There was only one possible correction: “the judicial mind of the nation.”[15] Spear, of course, hoped that the Court would rule on the narrow focus of reconstruction legislation (i.e., laws intended exclusively for protecting former slaves), and declare void those acts that went against the Fourteenth Amendment’s general protections.  But it was inevitable that such generality, expressed in such vague clauses, would draw greater attention from the likes of John Campbell, the attorney for the butchers in Slaughterhouse.

For the Supreme Court, there was indeed no escaping the Fourteenth Amendment – though some of the justices certainly tried.

A. Justice Morrison Waite: The Means of Government Without the End

When he was appointed Chief Justice in 1874, an editorial in the Maine Farmer noted that Morrison Waite “has not that rational reputation which many of this predecessors enjoyed at the time of their appointment,” since he “had but little connection with politics.” But for all his lack of experience, Waite was still “devoted to his profession, [and] has enjoyed much esteem in his own State, for his integrity and sense of honor.”[16] What he did have, though, was legal expertise, making him one of the new professional lawyers who would be appointed to the bench in the Lochner Era.  “His knowledge of the law extends to all branches, including admiralty and constitutional law, in both of which specialties he had the reputation o being very strong,” the New York Times reported.  No other judge had, “at the time of his appointment, the same versatility and range of practice and legal experience.”[17]

It was certainly this outlook that moved him to take control over the Court in his two years as Chief Justice.  In that time, he not only followed but made explicit his adherence to Roger Taney’s understanding of state sovereignty; this meant passive judicial deference to state laws, blended with bold declarations that would “settle” the more troubling questions in national life.  It was at once an extreme deference to politics, and at the same time, a willingness to override political decisions with judicial rules when necessary.

Waite viewed government as a social compact: people joined it and became citizens, and in doing so, gave up their rights in order to preserve purely political rights through the system itself; the freedom of the individual was nothing more than the freedom of the whole.  “Citizens are the members of the political community to which they belong,” he wrote in U.S. v. Cruikshank (1875).  There, the Court refused to apply the provisions of the Enforcement Act that Mr. Spear lamented to the perpetrators of the Colfax Massacre in Louisiana.  “They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights.” Governments were simply the aggregate authority of those who had submitted, and the purest expression of that was, of course, the states.  Those states had in turn been the vehicles by which the Constitution was ratified, meaning that they were, and continued to be, the superior institutions. “The government thus established and defined is to some extent a government of the States in their political capacity.” True, it was also “a government of the people” according to Waite.  The powers over the states were “limited in number, but not in degree.” Beyond the enumerated functions of the national government, it not only lacked authority on certain questions – but “it has no existence,” he wrote.  “It was erected for special purposes, and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view. It can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction.”[18] Waite did not view the Constitution as any sort of empowerment of the national government; it was instead a specific list of limitations on what it could do.  Accordingly, the Fourteenth Amendment was little more than a broadening of that power – not a restatement of what both national and state governments are for.

Justice Waite maintained this principle in Minor v. Happersett (1875), where he wrote that the most basic guarantee of the Fourteenth Amendment – the Citizen Clause – is, once again, “suited to the description of one living under a republican government.” He admitted that this included women, who were seeking a judicial guarantee for the right of suffrage.  At the same time, though, the meaning of citizenship contained within itself no guarantee of the right to vote.  “Certainly, if the courts can consider any question settled, this is one,” Waite wrote, with distinctly Taney-style language.  “For nearly ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage.”[19] The Nineteenth Amendment, of course, would eventually override this ruling, and nationalize the woman’s right to vote.  But at the time, Justice Waite’s opinion damaged far more than the female population.  Plainly, for Waite, a “citizen” was a mere resident, or individual subject to the laws; it had nothing to do with the self-evident nature of political participation that had given the word its definition for eons.  Perhaps state governments had their reasons for denying women the right to vote; but that did not call for a nation-wide denial of what citizenship itself meant, or that it truly was a right that ought to be extended to all at some point in national development.  Once again, it would require an amendment, the Nineteenth in this case, to make explicit what should have been obvious, not only by the words of the Fourteenth Amendment, but in national consciousness in general.[20] But this was the natural consequence of Justice Waite’s adherence to Roger Taney’s doctrines in judicial review.

In short, Justice Waite’s understanding of state governments appears, on its face, to be very much like that of Miller.  Indeed, he wrote that the “principle of republicanism” is that government’s duty to “protect all its citizens in the enjoyment of this principle, if within its power,” and that this duty “was originally assumed by the States; and it still remains there.” Accordingly, the “only obligation resting upon the United States is to see that the States do not deny the right.” Yet, unlike Miller, that duty was no longer a general principle, understood by all, and based on the meaning of a republic.  It was instead a far more democratic view of republicanism: the states still embodied the true definition.  The powers of the national government granted by the Fourteenth Amendment, as well as ensuing Reconstruction legislation, were mere anomalies of positive law; as such, Justice Waite and the Supreme Court were merely forced to interpret them in the most modest fashion.  The powers of Congress were “limited to the enforcement of this guaranty,” i.e., the right to peacefully assemble.[21] It was not the nature of the government, but the limits placed upon it that mattered.  States, on the other hand, which were more essentially republics, had powerful levers made to serve the democratic will – even as they lacked any clear goal.  These, it seems, were the assumptions that Justice Waite held when he wrote the Munn opinion.

B. The Munn v. Illinois Decision

It is striking how this opinion, though only the second instance of a Fourteenth Amendment question arising for the Court, was approached with such a routine attitude.  “We do not conceal from ourselves the great responsibility which this duty devolves upon us,” Justice Miller had written, elaborating on the thoughtful caution in their approach to the question, and an awareness that the issue was hardly settled[22]; Waite, however, did not give the same preface, nor did he even acknowledge the importance of the question itself.  Instead, he wrote the opinion as if the question was quite settled.  It was not settled by the Slaughterhouse Cases, though: Waite did not cite the Slaughterhouse opinion, nor did he even mention Justice Miller.  It seems he sough to solidify the limited scope of the Fourteenth Amendment on a completely different basis – to essentially patch up Miller’s holes through which an exception might sneak in and require the Court to strike down a state regulatory law.  He would thus ensure that state authority was final, and that the protections of the Amendment would stay out of local economic affairs.  There could be neither an appeal to substantive rights, nor an adjustment of state governments so as to bring them back to their intended purpose as republics.  For Waite, it seems, neither of these things existed, at least from the law’s point of view.[23]

This was quite intentional on his part: he looked, after all, to the common law, and the organic view of government, which he believed was part of the American mind at the time of the Founding, and was still present when the Fourteenth Amendment was drafted.  It involved, of course, “a limitation upon the powers of the States,” one that was “old as a principle of civilized government”; certain limitations appeared in Magna Charta, and had been a central feature of the state constitutions and the national Constitution when it appeared.  But it was based on an understanding of the social contract as a whole, which excluded any claim to rights that were outside of or preceding the formation of government.  “When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain,” he wrote.[24] The social compact, though, had not occurred at the national level; the meaning of United States citizenship only mattered for Americans involved in classic diversity cases or affairs overseas.  The rights of the state citizen were therefore conditional, and quite subordinate to the whims of popular legislation.  This plainly led to a broad understanding of the public interest; there were a variety of instances where the pursuit and keeping of private property might injure it.

In Justice Waite’s mind, it was clear that preventing such public injuries was the only possible meaning of state police power.  There could be no alignment between the two, as the classic definition held[25]; there were instead different things in kind, and bound to conflict.  Given this understanding of the social contract, it was clear that the state ought to prevail over everything else.  “Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good,” Waite wrote.  “In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold.” This was such a standard practice, and already so common in state legislation, that it “has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property.”[26] Justice Waite therefore held a distinctly organic understanding of government, much like Justice Breese.  This was hardly an attempt to avoid the sort of difficulties that might come from holding the Fourteenth Amendment over state legislation, which appeared in the Slaughterhouse Cases; it was instead a wholly different view of government – one that was not founded on the right to keep and pursue property, but one that simply tolerated its existence, and let all other affairs be dominated by the idea of “the public interest.”

Justice Waite looked entirely to the common law background of economic rights, and derived from it the rule that some forms of property and contract were in fact “affected with the public interest.” When this happens, according to such common law jurists as Lord Chief Justice Hale, it ceased to be “private,” and could receive no such protection.  “When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control.”[27] Waite then offered a long slew of examples covering over five pages, of common law regulations of property and contract, all of them showing that the public interest far surpassed that right.  It was, of course, a right that received abundant protections; but never did Waite view it as an aspect of police power, and the proper function of the state.  It did not seem that there was any difference in America when it came to the standard definitions of fundamental terms in his mind.  It would be easy to point out James Wilson’s words, “that the principles of the constitutions and governments and laws of the United States, and the republicks, of which they, are formed, are materially different from the principles of the constitution and government and laws of England” – or, for that matter, that “the principles of our constitutions and governments and laws are materially better than the principles of the constitution and government and laws of England.”[28] But what Justice Waite is truly missing is the place of police power in the proper function of state governments, or any government – a point that the Americans realized in a far greater way than the British ever had.  It was the political truth that the “public interest” was not in conflict with private property, but embodied it within the definition of the purpose of a republic itself.

Still, Justice Waite could not perceive the grain elevators as anything but the public interest; nor was it possible that a degree of corruption had occurred in the process of legislation.  For Waite, it was legislation in which the “whole public has a direct and positive interest.” Yet what the Court, as well as the Illinois state legislature, meant by “whole” came at great expense for the likes of Mr. Munn and others like him.  It was a constructed “whole interest,” one that did not depend on what was actually of benefit for all citizens, but for only a portion.  In ruling this way, Justice Waite made it clear that he was quite attuned to the times: the law was in fact the “application of a long-known and well-established principle in social science, and this statute simply extends the law so as to meet this new development of commercial progress.” We should recall that Justice Miller never once referred to “progress,” or the need for local legislation to stay attuned to the times; while the law in question was upheld, in light of the serious health and safety concerns in New Orleans, Miller never suggested that republican government must alter its inner principles in order to adapt.  But Waite plainly saw state sovereignty differently, and it was clear that “popular sovereignty” of the previous generation had now evolved into the legitimate use of public power to ensure that society could “progress.” In light of these principles, he wrote, “there is no attempt to compel these [elevator] owners to grant the public an interest in their property, but to declare their obligations, if they use it in this particular manner.”[29]

Indeed, the basis of political legitimacy had shifted: where it had once been natural, it was now a historical thing.  Common law judges might have viewed their craft as an embodiment of natural law, bringing to light through practice the timeless and eternal precepts of justice, as even Blackstone claimed.  But now, the flexibility of that law was of greater emphasis – not so much because of its ability to adapt to the times, but the ability of legislators to make “the whole” adapt as well.  For this reason “[a] person has no property, no vested interest, in any rule of the common law,” Justice Waite concluded, emphasizing that property “is only one of the forms of municipal law, and is no more sacred than any other.” The right of property, after all, was not natural, but was “created by the common law,” meaning it “cannot be taken away without due process.” But that was the only true protection.  Beyond the required procedures, “law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations.” Waite was not in the least uncomfortable with the “whims” of the legislature; as the sovereign elected body in a state, it could do no wrong, because the rights in question spring from the same assertion of political power that created that institution.  “We know that this is a power which may be abused; but that is no argument against its existence,” he wrote.  With these words, Justice Waite introduced a particularly novel understanding of the purpose of government: that even the gravest abuses of power were still legitimate – that corruption was equal to goodness, so long as it abided by the due process of law.  Here, he gave his most famous quip: “For protection against abuses by legislatures the people must resort to the polls, not to the courts.”[30] This was, of course, a purely democratic understanding of state governments; even constitutions were subject to popular vote, as far as Waite was concerned.  It did not seem to occur to him that the polls themselves might invite the sort of class legislation that could undermine the whole point of a republican government.[31]

There were, of course, plenty of instances that such class legislation was legitimate, as my thesis holds.  Perhaps it was necessary to correct the sort of monopolies that could spring up spontaneously in society – or, in this case, perhaps the owners of grain elevators were charging exorbitant rates, meaning that the legislation in question was in fact justified.  But Justice Waite did not see any such distinction: class legislation was always justified, not as the means by which a state government might recover its own ends, but so it might bring the sort of progress that elected officials thought essential for social development and the role of the state in the lives of citizens.

C. Justice Stephen Field: The End of Government Without the Means

There was substantial public dissent against the Munn ruling, far more than Slaughterhouse had received.  The New York Times, fast becoming the Supreme Court’s watchdog, reported that there was “little consolation” from the “legal assurance that the principle thus sanctioned by the court is in conformity with the common rule, which required that the rates charged shall bear a reasonable proportion to the services rendered.  Who shall determine the reasonableness of the charge, is the question which underlies the distrust awakened by the decision.”[32] This point was no doubt inspired by Justice Stephen Field’s dissent in Munn.  There, he declared in the first paragraph the fundamental problem: “The principle upon which the opinion of the majority proceeds is, in my judgment, subversive of the rights of private property, heretofore believed to be protected by constitutional guaranties against legislative interference, and is in conflict with the authorities cited in its support.” He recounted the same points that Mr. Munn and his associates mentioned in their own brief: the warehouse and elevator had been constructed by their own efforts, at their own expense; the rates were long settled between the businessmen and the farmers; and the state Constitution gave specific protections for those elevators, which the rate-setting law plainly defied.  Munn had done much to comply with the earlier state laws when he sought a state license.  Unlike Justice Waite, Field pointed out how the question presented was “one of the greatest importance.” It was important, though, because of something much greater than the Fourteenth Amendment: “whether it is within the competency of a State to fix the compensation which an individual may receive for the use of his own property in his private business, and for his services in connection with it.”[33]

Field argued that these things had made the grain elevators a private business, and no amount of interaction with the public interest could change that.  Hence, while Justices Breese and Waite claimed that regulation is no violation of a basic right so long as the right itself persists, Field extended it in the opposite direction: private property was meant to be protected even if it came at the greatest expense to the public good.  There any regulation that a state could impose without causing a “partial destruction of the value of the property, if it fall below the amount which the owner would obtain by contract, and, practically, as a complete destruction, if it be less than the cost of retaining its possession.”[34]

While Justice Waite broadened the precedent in favor of a radically new version of state police power in Munn, in much the same way, Justice Field broadened the concept of substantive rights.  “There is no magic in the language, though used by a constitutional convention, which can change a private business into a public one, or alter the character of the building in which the business is transacted,” he wrote.  “One might as well attempt to change the nature of colors, by giving them a new designation.”[35] Private meant private, and public meant public.  The purpose of the public sphere, and the public power of the government in particular, was to protect that end.  It was not that the public had no interest in protecting others from that pursuit, according to Field.  It was simply the fact that such a protection could not be allowed to infringe on that fundamental right – and, of course, it was the duty of the Court to say so, and to strike down conflicting laws accordingly.

For Field, there seemed to be no limit at all to what the Court should do to protect the pursuit of property – that this “equality of right” meant that “all pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally upon all others of he same age, sex, and condition.” The Fourteenth Amendment had simply unleashed the judiciary’s authority to protect substantive rights, which had always been there.  But Field said this because he saw the right to keep and pursue property in a purely nationalized way.  At best, state governments existed to ensure safety and health, and, of course, to pass an unlimited array of moral legislation.  But when it came to property and business per se, the states could have no place – not in restricting or even encouraging the pursuit of property.  It was “the fundamental idea upon which our institutions rest,” he wrote, and anything less would mean “our government will be a republic only in name.”[36] Plainly, the states were not “republics.” Perhaps they had been at one time; but there was no doubt that modern states were little more than mobs, while their constitutions and local legislation were only shields that hid great injustices, if not pulled aside by the national government – the Supreme Court in particular.

All of these things should be considered in light of Justice Field’s words, which would set the tone for the ongoing judicial dilemma of the Lochner Era: “If this be sound law, if there be no protection, either in the principles upon which our republican government is founded, or in the prohibitions of the Constitution against such invasion of private rights, all property and all business in the State are held at the mercy of a majority of its legislature.” His assessment was quite correct; his solution, though, was questionable.  The seriousness of legislative interference in business would only intensify as it became involved in labor, hours, and wages, and as the legislation was increasingly informed by the sort of progressivism that had no ambiguities about its hostility to the entire American system.  Field knew that there were necessary expectations of government that established its legitimacy, no matter how well its legislative branch abides by the process of law making.  But he did not see the full scope of what a republican government was for.  He plainly limited the definition of a republic to the sort of government that did little more than protect the rights it had deemed fundamental, because they were stated as substantive freedoms in the law.  Field gave an elaborate description of those substantive rights, going quite beyond what Justice Miller had done in Slaughterhouse.  Where the Amendment’s protections of “life” and “liberty,” “are of any value, [they] should be applied to the protection of private property,” he wrote.[37] They could have no meaning beyond that absolute requirement.

There was, of course, a broad range of police power concerns, which the Constitution itself specified.  States were required to give “just compensation” for whatever property it took for public purposes; it had the power to tax (assuming that all “bills for raising revenue originated in the assembly); and, of course, it had the power to regulate the keeping and pursuit of property – but not because of its impact on the public, but “so far as it may be necessary for the protection of the rights of others, and to secure to them the equal use and enjoyment of their property.” Again, much like “life” and “liberty,” all police power concerns about “health” and “safety” were reducible to concerns about property according to Field.  “The doctrine that each one must so use his own as not to injure his neighbor,” he wrote, “is the rule by which every member or society must possess and enjoy his property; and all legislation essential to secure this common and equal enjoyment is a legitimate exercise of State authority.” Here, Field showed his fundamental departure from Justice Miller, as well as the whole meaning of police power as it existed in both the common law and the American Founding.  “Except in cases where property may be destroyed to arrest a conflagration or the ravages of pestilence, or be taken under the pressure of an immediate and overwhelming necessity to prevent a public calamity, the power of the State over the property of the citizen does not extend beyond such limits.”[38] Clearly, he did not perceive the need to help farmers as an “overwhelming necessity” – nor could he have imagined the plight of laborers in the coming industrial era as a “public calamity.” The fundamental right to keep and pursue property, so long as it was absolutely protected, would create its own means.

In fact, the business interest was one with the public interest in his mind.  “There is no business or enterprise involving expenditures to any extent which is not of public consequence and which does not affect the community at large, he wrote in his Stone v. Wisconsin (1876) dissent, handed down the same year, and on the same principle, as Munn v. Illinois.  “There is no industry or employment, no trade or manufacture, and no avocation which does not in a greater or less extent affect the community at large and in which the public ahs not an interest in the sense used by the Court.”[39]

D. Justice Stephen Field and the Lochner Era

While Justice Waite saw an unlimited political power within state governments, Justice Field saw only the end of government – and nothing to support it other than the judiciary.  The right to keep and pursue property was a thing to be protected at all costs, in the confidence that it would actually create the solutions to its own problems – or, if it failed to do that, it should be protected anyway, because that was the meaning of freedom.  Perhaps protecting such a right would allow “virtual” monopolies to form, and overtake otherwise fair trade by raising exorbitant rates, or, as it happened later, reduce wages and increase hours on workers beyond basic standards of fairness.  It might be a source of tremendous injustices, as liberty was allowed to overtake equality.  But Field was confident that a clear protection of those fundamental rights would eventually lead to the best solutions, and that apparently even those who suffered under such conditions could also rest in the joy that their rights were protected as well.

For Justice Field, it was plain that republican governments themselves had no special role in protecting those rights.  That Field would find so inconceivable what earlier Americans thought self-evident – e.g., that the “preservation of property… is a primary object of the social compact,” and on this basis, every state constitution “was made a fundamental law” – indicates just how different his liberalism was from that of the Founders and their Constitution.[40] Liberty of contract, or even the most radical laissez-faire principles, it seemed, were no longer rooted in the nature of man or the purpose of government.  This was obvious enough in his language: all business was now “placed at the mercy of the legislature of every state.”[41] There was no correcting those governments and recovering the purpose of state police powers, because they were not truly corrupted.  There was only a critical review of their activities – which placed tremendous authority in the hands of the Court.

In the American Law Review’s special issue on the centenary of the Supreme Court, Field wrote that “as inequalities in their conditions of men become more and more marked and disturbing,” it was the role of the judiciary to do what it had always done: keep those popular impulses from crushing fundamental rights, before they “encroach upon the rights or crush out the business of individuals of small means.” This was sure to happen “as population in some quarters presses upon the means of subsistence, and angry menaces against order find vent in loud denunciations.” Field’s assessment of class animosity may have been quite correct, and it would only become worse in the next few years.  But to assume, as he did, that there were no “republican remedies,” as Madison understood it, nor even regulatory solutions that might step on fundamental rights for a time, was indeed to re-define government in radical new ways.  For this reason, “it becomes more and more the imperative duty of the court to enforce with a firm hand every guarantee to the constitution,” he wrote.  “Every decision weakening their restraining power is a blow to the peace of society and to its progress and improvement.”[42] The judiciary was indeed the whole reason for the rule of law, and therefore the jewel of the republic.  Upon his retirement in 1897, which came after a stunning 37-year career, Field’s farewell address to his fellow justices was reprinted in the New York Times.  There, he restated the same idea, identifying the “great glory” of the American people as one thing that was central to the success of a free government: it “always and everywhere has yielded a willing obedience to them,” i.e., not the laws, as those who stand by the classic definition of a republic would suppose – but to the Court’s rulings.  This fact, and this only, showed the “stability of popular institutions, and demonstrates that the people of these United States are capable of self-government.”[43]

It was what Howard Jay Graham would later identify as “judicial trusteeship,” which was “manifested both doctrinally and psychologically in Field’s work,” and which no doubt kept him on the Court for so long – longer than any other justice, and, by all accounts, longer than his own health could handle.  All the while, he held great anxiety about the conditions of American politics, and seemed painfully aware of the necessity for men like himself to stand as guardians of fundamental rights, which could easily be usurped by legislative processes and become the victims of bad legislation – if not violence.  He had a dark outlook, and a sense of “confused frustration that at times seemed to heighten anxiety and reveal a partial awareness that even the staunchest resistance to paternalistic trends might prove fruitless and self-defeating.”[44] It was, no doubt, an aspect of the age: the nineteenth century was all about the loss of confidence in fundamental principles – even the most basic precepts of human dignity.  All of the most sacred ideas that defined a civilization, or even a nation devoted to liberty, were suddenly in tremendous doubt.  Progressivism would later offer a historical basis for natural right; but until that time – and even after that time – there was only one thing to do: insist on fundamental principles, and show their supremacy with raw assertions of power.  Field found himself with precisely that duty on the Supreme Court – and in this he was “obviously an anxious and troubled man, committed to policies whose ineffectiveness he sensed, yet to which he clung all the more tightly,” Graham wrote.[45]

At the same time, strange as it sounds, he was really no different from Justice Waite, or those who wrote later opinions from which he dissented: they emphasized the power of the state legislatures, maintaining the confidence in democratic processes that would later come to define the progressive era.  Field, however, emphasized the power of the judiciary, and its role as the guardian of rights that the nation had traditionally held sacred.  But why, exactly, did he do this?  It was strange to hear such praise of the judiciary coming from a justice who so frequently dissented when it came to the most pressing questions.  Had his jurisprudence prevailed most of the time, this statement would make sense; but since it had not – since the Court had repeatedly sided with the regulatory laws that he believed were such a threat to the most basic liberty – justice Field made it clear that the principles behind his own dissents were in fact no more preferable than their opposites.  Though Field asserted with all his might that there was a fundamental right to property, it appears that the ruling itself was far more important than his own principle.  The Court, he wrote, “possesses the power of declaring law, and in that is found the safeguard which keeps the whole mighty fabric of Government from rushing to destruction,” he wrote.  With this, he reminded his fellow justices that “this negative power, the power of resistance, is the only safety of a popular Government, and it is an additional assurance which the power is in such hands as yours.”[46]

Still, it was only a matter of time before Field’s view would prevail, not only in favor of laissez-faire principles, but as the only way the Court might find its place in national life in the coming century.  The difficulty, of course, was how it carried this groundless nature with it.  The rights that Field was so certain about depended entirely on the judiciary for their place in public life, and the sort of hostility that it would receive for going against what was thought to be the true public interest.

IV. The Remnants of Classic Police Power

Justice Waite would continue to apply this reading (or no-reading) of the Fourteenth Amendment in a flurry of cases, some of them stated in only a few paragraphs, dealing with state regulations of railroads.  They were, no doubt, the decisions he anticipated when he wrote the Munn opinion, and he sought to apply it fully in what would otherwise be very difficult decisions.  In Chicago, Burlington, & Quincy v. Iowa (1877) that railroads were “given extraordinary powers, in order that they may the better serve the public in that capacity.” For this reason, they were “engaged in a public employment affecting the public interest, and, under the decision in Munn v. Illinois… subject to legislative control as to their rates of fare and freight, unless protected by their charters.” The railroad was exactly like the grain elevators, and though it passed between the borders of several states, “[i]ts business is carried on there, and its regulation is a matter of domestic concern,” he wrote.  “It is employed in State as well as in inter-state commerce, and, until Congress acts, the State must be permitted to adopt such rules and regulations as may be necessary for the promotion of the general welfare of the people within its own jurisdiction, even though in so doing those without may be indirectly affected.”[47] The railroad companies were therefore left to adapt themselves to the “patchwork” of state regulations, and could expect no protection from the federal government for even a fair protection of their interests.  The rule, which was also decided in Munn, determined that “[w]here property has been clothed with a public interest, the legislature may fix a limit to that which shall in law be reasonable for its use.” From here, though, he revealed just how far he was willing to let the power of state legislatures go – to the point where it overcame even the Constitution itself, and the Court’s role in interpreting it. “This limit binds the courts as well as the people, he wrote.  “If it has been improperly fixed, the legislature, not the courts, must be appealed to for the change.”[48]

A. Justice William K. McAllister’s Defense of Natural Right

Justice William K. McAllister was as obscure as a judge as his ideas were in the judiciary at the time.  He was elected to the state judiciary in 1870, when the state held its convention, and then resigned after only five years.  His dissent, though, was the strongest approach to police power jurisprudence, and would have offered tremendous guidance, not only for the outcome of Munn and subsequent cases, but for the whole course of the Lochner Era.  He began his dissent on “elementary grounds.” In language that was quite remote from the rest of his fellow justices, he wrote that the “natural rights” of individuals are no more the creations of legislative power as they are of judicial power.  They are instead “antecedent to and exist independently of the constitution.” People joined civil societies and formed constitutions – and indeed, they created state police power – in order to protect those rights, which they held simply by being human.  “Therefore the extent of constitutional protection can only be determined by a correct definition of the rights it was intended to secure.”[49]

For McAllister, the common law was insightful and helpful only so long as it stayed rooted in its own first principles.  To have those principles at hand, though, was the great advantage of the American republics.  He looked primarily to the constitution of the state, and the super-political principles that it referred to: after listing the basic rights, it guarantees that “’to secure these rights and the protection of property, governments are instituted among men,’ etc.” In words that surpass Justice Field’s attempt at a philosophic dogma of property, McAllister wrote: “It must be admitted that the sense of property is deeply implanted in human nature – is inherent in man.” At the same time, though, McAllister went quite beneath Field’s view, and acknowledged the pragmatic side of natural right, which informed the structure of republican government and its institutions, and, of course, the reason why government existed to protect property.  “[I]f we are to infer a purpose from results,” he wrote, “this sense must have been bestowed for the purpose of rousing men from sloth, and stimulating them to activity, and has, in fact, had far greater influence in founding civil government upon correct principles than any other motive or perception of the human mind.”[50] Government, according to McAllister, had a distinct nature, and the purpose of law was to make it realize that end.  This did not mean that there were abstract principles of right that rose far beyond all other considerations of public necessity; at the same time, it did not mean that public necessities trumped all need for protecting property, recognized as its end.  It was, as my thesis holds, both of these things.

McAllister revived the principle of republican government that James Madison had explained in Federalist #10 – that the true mark of a republic was its ability to contain factions, or at least ensure that legislation was not completely in favor of one class over another.  “Our government is one of the people, and its functions subject to disturbance by popular excitements, by which one class of men with certain particular interests or prejudices, either political or otherwise, may come into power, displace all against whom those prejudices run, and oppress them with unfriendly legislation.” There was a difference between legislation that was an exercise of one class over another, and the sort that sought to remedy a certain injustice that had occurred spontaneously in society.  The former proceeds on the assumption that justice is a matter of compensating for past wrongs; it is often driven by the righteousness of the cause, as populist farmers frequently did in this era.  The latter, though, seeks to recover a lost form of justice that applies equally to all – a process that might very well require legislation that is class based for a time.  Once that standard of fairness is recovered – once the means achieve their ends – then the task is complete.  It is, of course, a fine line between these two views; but Justice McAllister was clear that forgetting it would only bring peril.  The regulation in question may very well have been justified; but to allow it for the reason Justices Breese and Waite did – that state legislative power is the supreme expression of the social contract – is to invite great confusion.

With this in mind, McAllister proposed the ideal thought experiment: “Suppose the displaced class to be those engaged in agriculture,” he wrote.  Suppose laws are passed “to cripple the interests of those engaged in it.” Suppose rates are adjusted entirely in favor of urban manufacturing interests; all regulation is aimed at agriculture, particularly the price of grain.  “Now, in none of these instances, would property itself be taken or the title to it disturbed” – and by the existing rule, there could be no recourse for the farmers.  Here he asked the critical question: “can there be any doubt that, by the principles of the Bill of Rights, all such legislation would be unconstitutional and void? It was for the prevention of such things that constitutions are adopted.”[51]

McAllister once again sought a great authority on this question – at once the greatest challenger to Justice Taney’s doctrine carried on by Morrison Waite, and the man who gave far greater assurance to the right of private property than Justice Field ever did.  It was, of course, Chief Justice John Marshall.  He had established how certain degrees of state regulation really could destroy not only the fundamental right of property, as Field would have it, but the government itself.  Perhaps property was not threatened under the existing state law in Illinois; but “if the legislature can fix the rate of compensation, then make it criminal to prosecute the business unless they shall obtain a license to carry it on, and give the bond required to submit to the rate so fixed, then the power is limited only by the pleasure of the State, and it may fix the rate of compensation so low that the business can not possibly be continued under it, and is therefore suppressed – destroyed.”[52] He quoted from Justice Marshall’s opinion in Brown v. Maryland (1827), a case dealing with the authority of a state government to place a fee on imported goods, obviously in the interest of its own citizens.  The law fell plainly within the Constitutional prohibition in Article I, Section 10, that “No State shall, without the Consent of the Congress, lay any imposes or Duties on Imports or Exports.” In ruling on the question, though, Justice Marshall explained the precise reason behind that prohibition, and why it was essential to the republican form of government expected in the states: “It is obvious that the same power which imposes a light duty can impose a very heavy one, one which amounts to a prohibition.” Contrary to Justice Waite’s opinion, he pointed out that “[q]uestions of power do not depend on the degree to which it may be exercised.” Degrees of power did not establish what kind of thing was exercising that power; it placed an elected assembly of a republic on equal footing with a tyrant.  The state of Maryland, of course, made its case much as the Illinois State Assembly did in Munn: it argued that the power simply did not go that far, and that there was no infringement on substantive rights.  “We are told that such wild and irrational abuse of power is not to be apprehended, and is not to be taken into view when discussing its existence,” Marshall wrote.  But it was clear that “[a]ll power may be abused, and if the fear of its abuse is to constitute an argument against its existence, it might be urged against the existence of that which is universally acknowledged, and which is indispensable to the general safety.”[53]

Justice Stephen Field gave no attention at all to McAllister in his Munn dissent.  It was most likely because he did not share the same view of natural right: his was absolute, having everything to do with the rights themselves, and nothing at all to do with the sort of government that was designed to protect them.  It placed the Supreme Court and its defense of fundamental rights at the center of the regime, rather than the Constitution, the republican state governments, and the institutions they created.  This does much to explain the nature of the Lochner Era, and the meaning of the New Deal revolution that brought it to an end: insofar as Field’s view prevailed in that period, it was destined to collapse.

Conclusion

Justice Samuel Miller silently joined the majority in Munn v. Illinois.  It would appear that he abandoned his initial position presented in the Slaughterhouse Cases.  But in truth, he had not changed his mind at all, at least according to his majority opinion in Davidson v. City of New Orleans (1877), handed down that same year.  The case involved yet another challenge to a piece of state legislation under the Fourteenth Amendment; it sought the sort of exception that Miller believed existed, but which Justice Waite had removed.  “The prohibition against depriving the citizen or subject of his life, liberty, or property without due process of law, is not new in the constitutional history of the English race,” he wrote. “It is not new in the constitutional history of this country, and it was not new in the Constitution of the United States when it became a part of the fourteenth amendment, in the year 1866.” It had been part of the “law of the land” long before the American Constitution declared that title for itself in Article IV.  The due process guarantee in English common law was not directed at the British constitution (which did not exist in written form), nor at Parliament.  It was simply understood as the sort of thing a republican government did, by definition.  This was the way state constitutions understood themselves at the time of the Founding.  Those guarantees were “embodied in the constitutions of the several States, and in one shape or another have been the subject of judicial construction.”[54]

But Miller saw a new trend in recent years: for all their republican institutions – their checks and balance sand frequent elections and guarantees of substantive rights – the states were not only falling short of their own principles, but were increasingly willing to reject them for the sake of very partial and short-sighted concepts of justice and the public good.  There were sensible remedies to legitimate problems; but then there were unlimited regulations that would never remove state power from the private sphere.  At the same time, there was a whole new basis of complaints against state regulations.  Before, the remedy was based on a public movement, a weighing of alternatives, and finally a vote – always guided by an appeal to the basic precepts of justice and neutral government understood by all.  But now, it involved far greater attention to the federal government, and the Supreme Court’s interpretation of the Constitution.  “It is not a little remarkable, 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,” Miller wrote, referring to the Bill of Rights, “this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion.” But now, while the Fourteenth Amendment had only existed for a few years, he observed that “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.” The hope had been that the Amendment, and maybe handful of cases, would be a sufficient reminder of what a republican government is, and that Congress could enforce that view accordingly.  But by this time, it was thought that the national government would no longer be a temporary, adjusting, remedying thing, but a permanent and fixed presence in local affairs.  This, he thought, could only be the result of “some strange misconception of the scope of this provision as found in the fourteenth amendment.” That misconception would increase, and come to reshape political life and American self-understanding for decades to come.  Stranger still, based on “the character of many of the cases before us,” the Court seemed to find itself the institution that would no longer interpret positive law, but enforce 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,” he wrote.  “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.”[55] It was, of course, not the kind of thing that the Supreme Court could promulgate because it was something already known to mankind – or at least such a thing was presupposed of republican citizens.