Page:Harvard Law Review Volume 32.djvu/257

221 DUE PROCESS OF LAW — TO-DAY 221 inclines to one of two views, — either he regards the words as im- porting and imposing a rule so venerable, universal and potent, that governmental results not logically developed by that rule from precedent authority, usually judicial, are indefensible; or he views them only as cautionary, prescriptive of a procedural pattern, usually legislative, but leaving to the lawmaker varieties in fashion exuberant as those of a woman's headgear. The conservative and radical schools of thought exist at the bar as they must in respect of all ratiocination; but as soon as our profession became the interpreters, all American constitutional reasoning became and remains strongly tinged with the rigorous verbal logic of the lawyer who (to be happy) must connect with a precedent or two any and every result he reaches, and call the same law. The nature of due process, as derived from history before 1789, or meditation on the nature of things, is a subject soon exhausted; and for the two generations I am considering we have reasoned on this matter in a way I think peculiarly American. We know that our Federal Constitution is one of delegated powers, and (however erroneously) incline to treat those of the states in the same way; and when a plaintiff asserts that something is not due process, he succeeds (if he does) not ex rerum naturd but because that some- thing is not contained within some other express or implied power of the law-making authority. This way of treating the constitu- tional question is accepted by even conservative writers, of whom Mr. William D. Guthrie ^ is perhaps the most distinguished living example. Our present Chief Justice expressed the same thought when he said that the Fifth Amendment "qualified so far as applicable" all other constitutional provisions.^ In result the lawyer-like way of defending a challenged act is to establish its propriety under some other constitutional provision so plainly that it defies the due-process clause. Though the phrase pervades our every scheme of government, slight study of actual cases shows that the overwhelming majority of complaints arise in the attempted exercise of the powers of ^ The Fourteenth Amendment to the United States Constitution — Lec- TUEES before Dwight Alumni Association, 1898.
 * McCray v. United States, 195 U. S. 27, 61 (1904).