Mason & Stephenson: Chapter VIII
Property Rights and the Development of Due Process
A few decades after the ratification of the Bill of Rights, a question arose as to whether or not the
rights stated in the B of R were protected from encroachments by the state governments
as well as the federal government. In Barron v. Baltimore (1833), the Marshall Court
faced the above question, and John Marshall’s opinion of the Court answered “No!” for a
unanimous Court.
Marshall again begins by noting that the case presents an important question, but not one
that is difficult to resolve. Marshall , after distinguishing federal constitution
making from state constitution making, then discusses the history and theory of
the federal constitution and the Bill of Rights and offers the Court’s conclusion:
The amendments comprising the Bill of Rights “contain no expression indicating
an intention to apply them to the state governments. This court cannot so apply
them” (KF&J 2nd Ed., p. 136 of volume 2).
This remained the law of the land with regard to the Bill of Rights throughout the Civil
War and immediately following it. But as a result of the Civil War, three new
constitutional amendments were passed which appeared to some to change things
in this regard. [READ 13th & 14th Amendments, M&S ]
The Slaughterhouse Cases (1873) (353)
83 U.S. 36
FACTS: See text.
QUESTION: Does the LA statute violate the 13th A. and each of the three clauses (D.P., E.P. &
P&I) of the 14th A.?
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ANSWERS: No & No (X3).
REASONING: Justice Miller wrote the O.C. for a 5-4 majority, and begins by noting that this is
the first time that the Court has been called upon to interpret these amendments (clauses).
In presenting the case, the plaintiffs argued on the basis of all three clauses in Section 1
of the 14th A. However, most of the plaintiff’s case was focused on the privileges
and immunities clause. The Court notes that the three amendments and all of
their provisions were obviously intended to provide protection for the Negro race,
which had been newly freed [READ 1:354].
Miller argues that P & I cl. applies only to those p & i’s granted by the U.S. and not those
granted by the states [READ 2:354]. [See also 3:355]
This raises the question of what p&i’s are granted by virtue of federal citizenship.
According to Miller, federal citizenship confers virtually no rights [356,
1st ].
As regards p&i’s granted by the states, the 14th A. makes no difference except
with regard to former slaves!
Miller then proceeds to the lesser argued clauses (as he notes) [READ 4: 356].
The DP cl. Is dismissed as having virtually no meaning at all (DP clause isn’t
new, there’s one in the 5th A. (just as there’s a P&I cl.). The Court says it
has never seen an interpretation of DP that would make it apply to this
case. [DP was an outgrowth of the Magna Charta (art. 39) in which King
John promises not to capture any of the Lords except by the “Law of the
Land,” meaning that the same law must apply to all equals. Law of the
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Land became over time DP, and up to this time (1873) DP had only meant
fair procedure.]
As regards the EP cl., the Court holds that it applies only to the newly freed
Negroes, in a section your eds. [READ 5:346].
See Notes from 2/20/75, p. 3*
Field’s dissent: He points out the inconsistency of the OC’s interpretation [READ
1:357].
He argues that under the 14th A. P&I means the rights of all citizens in a free
society [READ 3:357] [He esp. notes the importance of the right of free
labor in a section you don’t have.] [See also 2:357]
Note that Miller, Field, and Bradley all quote Justice Washington in support of their
cause. [See 2/20/75 notes, p. 3**]
MUNN V. ILLINOIS (1877) (358)
94 US 113
FACTS: Case begins w/ attempt of IL legislature to control the rates charged by grain elevators.
See text [Appellants raise 14th A. dp & ep claims as well as the commerce clause (state
interference w/ interstate commerce. USSC focuses only on DP claim
QUESTION: Does the state’s imposition of a maximum rate for grain elevators to charge
constitute a taking of property without due process of law violating the 14th A.?
ANSWER: No!
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REASONING: Ch. Justice Waite delivers the O.C. for a 7-2 majority.
Court rules that DP was not violated and is important because of the discussion of
“property affected with a public interest.”
Waite cites Lord CJ Hale [READ 1:359] (see notes of 2/27/75). CJ Waite appears to
take the legislatures word for this property being “(affected with a public
interest”—he gives no standard for determining that, but the leg. acted on it.
[READ 2:359] famous quote from Waite
Field’s Dissent: Imp., it will become law of the land later-Using colorful language Field indicates the frivolousness of the Const. of 1870 [READ
4:360; READ also 3:360].
Field also questions the soundness of the law [READ 6:360; then READ 7:361].
Cf Iredell’s view in Calder v. Bull.
LOCHNER V. NEW YORK (1905) (364)
198 US 45
FACTS: See text
QUESTION: Does the state’s imposition of a maximum number of hours that a baker may work
per week (60) and per day (10) violate the baker’s and his employer’s liberty of contract rights
under the 14th A?
ANSWER: Yes!
REASONING: Justice Peckham delivers the O.C. for a 5-4 majority.
Court rules the act is unconst. Because it interferes with freedom of K., which can only
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be breached for compelling reason under the “police power” [READ 1:365].
[See also 2:365]
Court states several times that the legislation was not passed under the police
powers [READ 6:366]. It’s common understanding!
Court says it can’t close its eyes to such violations by legislatures [READ 3:366].
Holmes dissent: Case is most famous for this dissent. He says Court is deciding this case based
on its economic point of view, which is not a part of the Constitution and certainly not
part of the 14th A. [READ 1:366; 2:366-367 & 3:367].
Harlan’s dissent is less imp. here – he says that the police power is the basis for the legis. action,
which ought not to be second guessed [READ 1:366 & 2:366]. [Here we see the great
dissenter – Harlan I – giving way to the new great dissenter – Holmes!]
[After the Lochner opinion the USSC pretty much maintained this line of reasoning, except in a
handful of cases such as Muller v. Oregon(1908) [in which the “Brandeis Brief” was
successfully used to uphold a state law limiting the working hours or women to 10 hrs.
per day], Bunting v. Oregon (1917) [in which the Court upheld a state law which
required overtime provisions for men working more than ten hour days (another Brandeis
Brief case].
[However, in Adkins v. Children’s Hospital (1923) the USSC held (affirming a lower court) that
a congressional act requiring payment of at least a minimum wage for women and minors
was unconstitutional on Lochner grounds). The Court ignored the Oregon precedents
claiming there is a difference between mandating minimum wages and limiting
maximum hours, as it extended their reach to congressional act as well as state acts]
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NEBBIA V. NEW YORK (1933) (367)
291 U.S. 502
FACTS: See text.
QUESTION: Does the state’s imposition of a minimum price for the retail sale of milk violate
the rights of grocers under DP cl. of the 14th A?
ANSWER: No!
REASONING: J Roberts delivers the O.C. for a 5-4 majority.
Roberts and the Court grapple the Munn doctrine of “business affected with a public
interest” READ 1:368]. The majority seem to broaden the meaning of affected
with a public interest” here [READ 2:368]. This caused some to see a welcoming sign
for New Deal legislation (that was not to come soon).
McReynolds dissent (joined by Sutherland, Butler & Van Devanter) says that the Court must
deal with the wisdom of legislation! [READ 369*]
WEST COAST HOTEL V. PARISH (1937) (369)
300 US 379
FACTS: See text
QUESTION: Does the state’s imposition of a minimum wage rate for women and minors violate
liberty of contract rights under the 14th A?
ANSWER: No!
REASONING: CJ Hughes delivers the O.C. for a 5-4 majority.
Hughes adopts the language used by Holmes in his dissent in Adkins, and uses it to
reverse Adkins [READ 1:369-370]; [See also 370* for the reversal language]
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[This decision actually is one of the first shots fired in the judicial revolution of
1937/switch in time.]
Sutherland’s dissent is responding to points made another case (The Butler case) [READ 1:370271 & 2:371].
This (West Coast Hotel) position of the Court has remained relatively constant since 1937.
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