Page:Harvard Law Review Volume 4.djvu/407

391 MEANING OF THE TERM ''LIBERTY:' 391 tion of all other property, so it is the most sacred and inviolable." " The vocation of an employer, as well as that of his employee, is his property." The writer has been unable to find any more satisfactory con- sideration of the subject than that represented by the above cases. As before remarked, the result of those cases is doubtful, their value small. They neither establish, nor much help to establish, the precise meaning of the term, and if they represent the existing law, the question is still an open one. All that can be said is that there is a tendency to give to the clause as a whole a wide scope, and to the term " liberty " a meaning at least sufficiently broad to include what are sometimes classified as " civil " rights, meaning thereby not all the rights of a citizen, not those of life and property, and not those great liberties which are commonly provided for in special clauses in our bills of rights, but simply freedom from restraint in the ordinary pursuits and avoca- tions of the citizen. In the few cases in which there is anything like a clear and definite decision, the question before the court was whether the term included the right to pursue any lawful occupation in a lawful manner, — and it was decided that it did, that every person has the liberty to ** exercise his faculties in all lawful ways." Whether, if the point should squarely come up, the courts would so interpret the term " liberty " as to render it prohibitive of any legislative invasion of the right of marriage, of education in the public schools, of resorting to any place of public amusement, and of receiving proper accommodation at the hands of innholders or common carriers, is not clear. The re- marks of some of the judges would seem to indicate that result, and such rights are apparently often classified with the right to pursue any occupation, or to "exercise one's faculties," as " civil " rights. The cases in which there has been any discussion of such rights have arisen since the late war, and the question has always been as to the validity of statutes making certain discrimi- nations in these matters between white and colored persons. These cases have always been decided with reference to that pro- vision in the fourteenth amendment securing the " equal protection of the laws," and of course they naturally call for an interpretation of that clause rather than the one here in question.^ As regards the tendency to give the clause a broad interpretation, 1 Pomeroy on Constitutional Law, p. 256 r-^.