Page:Harvard Law Review Volume 4.djvu/402

386 386 HARVARD LAW REVIEW, The court did not, apparently, consider it even arguable that the restraint upon following their lawful calling was a deprivation of " liberty." Moreover, the decision does not rest, so far as this clause is concerned, upon the ground that the act was a fair exer- cise of the police power, and so was due process of law. It pro- ceeds on the ground that the fourteenth amendment has no application whatever to such a right as that contended for, namely, the right of every man to pursue a lawful occupation. So that the actual decision in the case is against, rather than in favor of, the broad construction of the term " liberty." So also in Bradwell v. The State, i6 Wallace, 130, it was decided that a law of Illinois denying the females the right to practise law in that State violated no provision of the Federal Constitution, the plaintiff contending that it violated the fourteenth amendment. Here also the court seems to have decided, by implication, that the right to practise a lawful calling is not Included in the life, liberty, and property clause. It expressly decided that it is not a privilege or immunity of a citizen of the United States. In Walker v, Sauvinet, 92 U. S. 90, the question was whether the right of trial by jury was secured by the fourteenth amendment. It was held that it was not, but there is no direct consideration of the term in question. In Munn v. Illinois, 94 U. S. 142, we find a direct state- ment on the point, although not in the opinion of the court. The question was as to whether a State legislature may fix the maximum of charges for the storage of grain in warehouses situated in large cities, without violating the fourteenth amend- ment. The court held that this could be done, that where prop- erty Is devoted to a public use, the States may, in the exercise of the police power, to a certain extent control it, and that the four- teenth amendment cannot be supposed to interfere with the police power. Mr. Justice Field, in a dissenting opinion, contended that the act did violate the fourteenth amendment, and among other things said : — By the term "liberty," as used in the provision, something more is meant than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose, and to act in such a manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of happiness; that is, to pur- sue such callings and avocations as may be most suitable to develop his capacities and give to them their highest enjoyment.