Page:Harvard Law Review Volume 32.djvu/267

231 DUE PROCESS OF LAW — TO-DAY 231 real question, — has the legislature made the mere existence of rights secured by the Constitution the occasion of depriving their owner of them, — even under the forms that belong to due process of law? This was the inquiry as phrased in the Wynehamer case; it asks why, for what reason did the legislature do this thing? And when in answering, the courts take cognizance even of what they believe to be known semper, ubique et ah omnibus the result is often a verdict, a finding of fact and not of law, except as it is the law of that case. This is the kernel (if there be one) of my thoughts, for I now leave procedure as intellectually still founded on Pennoyer v. Nef,^^ also eminent domain and taxation, as depending only on the query, is there a real taking or tax of something infra-juris- dictional, in a method procedurally due? There remains poUce power, i. e., the concrete expression of sovereignty, — what is its modern relation to due process, under either amendment, or any state constitution? The venerable ex-President of this University is the author of two bulky volumes concerning reUgious and scientific conflict, — they should be called White's History of Dissent. I wish a lawyer would measure the development of law by dissents, — which are worth more study than is usually accorded them. In a court not subject to sudden change, able and continued dissent delimits and accentuates decision; it reveals far more than does the majority opinion the intellectual differences of the council table; and the present status of police power is to me more clearly revealed by the dissents of Justice Holmes than by the syllabi of digests. Sixteen years ago he entered a court already committed to that re- view of state action, which necessarily followed a successful appeal against local railway regulation ; but as yet not much troubled with intimate statutory repressions or encouragements along a line now extending and recently extended from the peaks of wages and hours of labor ,^® through a jungle of blue sky,^^ employment agency,^* ^ Cf. Saunders v. Shaw, 244 U. S. 317 (1917), for a very modern application. ^ Wilson V. New, 243 U. S. 332 (1917). " Hall V. Geiger-Jqnes Co., 242 U. S. 539 (1917). '* Brazee v. Michigan, 241 U. S. 340 (1916); Adams v. Tanner, 244 U. S. 590 (1917)-