Page:Harvard Law Review Volume 32.djvu/255

219 DUE PROCESS OF LAW — TO-DAY 219 the unchangeableness attributed to the laws of the Medes and Persians." ^ If definition is either impossible or impolitic, and history is a guide uncertain at the best, how is decision to be reached? And is it not obvious that when a promise of judicial inclusion or ex- clusion was held out, hope was encouraged that the especial sorrow of each particular litigant might be wiped away by the saving phrase? Complaints over the flood of Utigation following the Fourteenth Amendment have a humorous side. We have en- couraged what we criticize. Nearly all suits at law, constitutional litigation included, arise in the same wayfthe plaintiff firmly believes that he is enduring op- pression, due to active fraud or caUous denial of right, and there- fore he brings his suit to ascertain, as he might ironically put it, whether what he knows to be wrong is nevertheless according to law. As no lawyer admits identifying even the law as it ought to be, with his client's ideas of natural or poetic justice, it is as well in limine to consider what is the law whose due process is so impor- tant. I attempt no definition of that word, observing that Moses, Blackstone, and Mr. James Coohdge Carter have not permanently succeeded; but for present purposes law is anything effectual in depriving any person of Hfe, Hberty, or property, provided it emanates directly or indirectly from a national governmental agency, or from a state. Both the Fifth and Fourteenth Amend- ments deal in negations only, — the nation agrees not to deprive without due process, and not to let a state do so; but it does not promise, nor is it authorized directly, to legislate against depriva- tion by other citizens,^ and a state may be as unjust as possible in legislation or administration, and yet such oppression is law — of sorts.^ Further, the "due process" imposed is not primarily a requirement that right be done, but that appropriate machinery for doing right be provided. It is therefore almost impossible to imagine an action brought affirmatively to prove that due process has been provided; the prayer is always to declare that something definitely stated is ' Hurtado v. California, no U. S. 516 (1884).
 * The Civil Rights Cases, 109 U. S. 3, 13 (1883).
 * Memphis Gas Co. v. Shelby County, 109 U. S. 398 (1883).