Page:Harvard Law Review Volume 32.djvu/261

225 DUE PROCESS OF LAW — TO-DAY 225 for Fourteenth Amendment litigation. Louisiana interfered with the vested rights of New Orleans butchers by restricting slaughtering to one area controlled by one company and subject to sanitary regulation, but everyone could there kill cattle on payment of fees. From a lay standpoint, the facts prove my thesis, — could any- thing be more reasonable in a sub-tropical town, and would anyone now dream of complaining? As a lawyer, however, it seems to me noteworthy that the strict and loose, conservative and liberal schools of interpretation not only instantly appeared at bar, but in the court, and along party lines, in a way not usually recognized. The justices were counted RepubUcan, except Field, but both he and Bradley had Demo- cratic minds in governmental matters; they distrusted govern- ment, the less of it the better; as successful lawyers they loved the rigor of the game, and hated anything that could not justify existence according to inherited rules. MiUer, J., for the court, laid down two propositions here relevant: (i) The poUce power is something incapable of definition, necessary to sovereignty, not to be bargained away, and subject to which every man holds property. This was acknowledged borrowing from Shaw, C. J.,^® and added nothing to Taney's epigram that it was no more than the power inherent in a sovereign, i. e., sovereignty;^^ and (2) the Fourteenth Amendment could not be invoked as to privileges and immunities due one as a state citizen, invasion of the rights of a citizen of the United States must appear, but exactly what such rights were could not be stated comprehensively or in advance; to hold other- wise would behttle and degrade the states, a thing unthinkable. The dissent of Field and Bradley declared the nation charged by the amendment with the power and duty of protecting whatever privileges and immunities belonged of right to the citizens of any free government, a doctrine logically compelHng the Supreme Court of the nation first, to draft a code of freemen's rights, and then enforce it uniformly in all the states. I believe that the view of human rights glorified in common-law courts, — the Democratic view, inclined its holders to a bold con- stitutional doctrine, and Mr. Guthrie, also politically Democratic, " Commonwealth v. Alger, 7 Cush. (Mass.) 53, 84 (1851). " License Cases, 5 How. (U. S.) 504, 583 (1847).