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tain actions of any kind in the Courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and im munities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added, the elective franchise as regulated and established by the laws or Constitution of the State in which it is to be exercised. These and many others which might be mentioned are strictly speaking privileges and immunities, and the enjoyment of them by the citizens of each State in every other State was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union."
The words "privileges and immunities," and "life, liberty, and property," come down to us from the time of Magna Charta. For a discussion of the meaning of the word "liberty," see an article entitled "Meaning of the Term 'Liberty' in Federal and State Constitutions," by Charles E. Shattuck, 4 HARVARD LAW REVIEW, 365.
It is sufficient for the present purpose to say that the words used in the Fourteenth Amendment, whether considered historically or simply with reference to their popular signification, are broad enough to allow the United States Supreme Court (when so disposed) to give protection to all the fundamental rights of the citizens of the several States.
It will not be possible to consider all the cases which have arisen under these Amendments. A large number of them are to be found in Thayer's Cases on Constitutional Law, Part II.
It is noticeable that the Supreme Court of the United States at an early day recognized the fact, that unless the broad language of these Amendments, and especially that of the Fourteenth Amendment, could in some way be shorn of its full significance, the fundamental groundwork of the National Government must be considered at once as essentially altered.1
This appears in the language of the court (Mr. Justice Miller delivering the opinion) in the Slaughter-House Cases, 16 Wall. 36, above cited:
1 See HARVARD Law Review, Vol. II. p. 363, Article by E. Irving Smith, entitled "Legal Aspect of the Southern Question."
"In the early history of the organization of the government, its statesmen seem to have divided on the line which should separate the powers of the National Government from those of the State governments, and though this line has never been very well defined in public opinion such a division has continued from that day to this.
"The adoption of the first eleven Amendments to the Constitution so soon after the original instrument was accepted shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late Civil War. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State and contiguous States for a determined resistance to the General Government.
"Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National Government.
"But however pervading this sentiment, and however it may have contributed to the adoption of the Amendments we have been considering, we do not see in those Amendments any purpose to destroy the main features or the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the States with powers for domestic and local government, including the regulation of civil rights—the rights of person and of property tial to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the nation."
Thus grudgingly did the majority of the court in 1873 recognize a possible extension of the National powers.
In order to minimize this extension, a majority of the court in this case construed the words "privileges and immunities" in the Fourteenth Amendment to include only such privileges and immunities as pertain to the citizens in their relations to the National Government; e. g. such as the right of free access to the seaports and to the seat of government, the United States Courts, and the sub-treasuries, etc., as distinguished from the whole body of privileges and immunities which pertain to citizens in their domestic or every-day relations.
But this view did not escape severe criticism. In the case of Butchers' Union Co. v. Crescent City Co.,1 decided ten years after
1 III U. S. 746.
the Slaughter-House Cases, Mr. Justice Field, in delivering a concurring opinion, took occasion to say:
"The first section of the Amendment is stripped of all its protective force if its application be limited to the privileges and immunities of citizens of the United States as distinguished from citizens of the States, and thus its prohibition be extended only to the abridgment or impairment of such rights as the right to come to the seat of government, . . . which are specified in the opinion in the Slaughter-House cases as the special rights of such citizens."
Mr. Justice Bradley in the same case says:
"I hold that the liberty of pursuit — the right to follow any of the ordinary callings of life is one of the privileges of a citizen of the United
Again the majority of the Supreme Court of the United States have sought to belittle the effect of the Fourteenth Amendment by magnifying the Police Powers so called of the States, and placing the same in a considerable degree above the Constitutional provisions contained in that Amendment. We have a striking instance of this in Powell v. Pennsylvania,1 one of the Oleomargarine Cases. But even in this case the Court recognized a limit to the power of the State. Mr. Justice Harlan says:
"Nevertheless, if the incompatibility of the Constitution and the statute is clear or palpable, the courts must give effect to the former. And such would be the duty of the court if the State legislature, under the pretence of guarding the public health, the public morals, or the public safety, should invade the rights of life, liberty, or property, or other rights secured by the supreme law of the land."
The language of Professor Thayer on this point is very pertinent: "As regards the Fourteenth Amendment it had for its main purpose that of cutting down the local legislative power of the States, their 'police power,' and conferring on the General Government the right to restrain them in exercising it."2
Slow as the United States Supreme Court has been to interfere in behalf of the citizens of the States when oppressed by State legislation, the power to interfere must be now considered as well established. See Chicago, &c. Railway Co. v. Minnesota, where
1 127 U. S. 678 (1887).
2 Thayer's Cases on Constitutional Law, Part II. p. 742, note.
a State statute which deprived the plaintiff of its property without due process of law was held unconstitutional as being in conflict. with the Fourteenth Amendment.1
There is one point worth noticing in most of the cases which have come before the United States Supreme Court under these Amendments to the Constitution, and that is that from the very outset until the present time the decisions have been very often by a majority of the court only, and there has constantly been a considerable number of the Justices in favor of giving to these Amendments more of the effect which they seem properly entitled to have. With a further increase throughout the country of what we may call the National sentiment, and a few more changes in the membership of the court, we may at no very distant day expect to see the National Government with a strong arm protecting all the people from oppression by the States.2
Hollis R. Bailey.3
1 Constitutional History as seen in American Law, pp. 231-233 (1889). Lecture of
Charles A. Kent.
2 See Strauder v. West Virginia, 100 U. S. 303 (1879); Yick Wo v. Hopkins, 118 U. S. 356 (1886); In re Lee Sing et al., 43 Fed. Rep. 359 (1890); Scott v. McNeal, 154 U. S. 34 (1894); Portland v. Bangor, 65 Me. 126 (1876); The State ex rel. Garrabad v. Dering, 84 Wisc. 585 (1893); in all which State laws were held unconstitutional as being in violation of the Fourteenth Amendment. See also The State v. Loomis, 115 Mo. 307 (1893); Leep v. Railway Co., 58 Ark. 408 (1894); Bradley v. Fallbrook Irrigation Dist., 68 Fed. Rep. 948 (1895); In re Minor, 69 Fed. Rep. 233 (1895); People v. Warren, 34 N. Y. S. 942 (1895); In re Quarles and Butler, 158 U. S. 532 (1895).
8 Since the manuscript of the foregoing article was sent to the Editors, the writer has read with interest the article of William H. Dunbar, Esq., published in the Quarterly Journal of Economics, Vol. IX. No. 3, (April, 1895,) dealing with the same subject, and entitled "State Regulation of Prices and Wages."
FEDERAL RESTRAINTS UPON STATE REGULATION OF RAILROAD RATES OF
FARE AND FREIGHT.
NOTHING in the industrial history of the United States
within the present century, phenomenal in many respects as that history has been, surpasses in extent or rapidity the growth of the railroads. When the Constitution of 1789 was adopted, there was no such thing known in the country as a railroad corporation; and, indeed, four decades more were yet to pass before the invention of the steam locomotive. In 1830 there were in the United States 23 miles of track; in 1840, 2,818; in 1850, 9,021; in 1860, 30,626; in 1870, 52,922; in 1880, 93,296; in 1890, 166,690; while in 1894 there were 179,279. In this last year, the number of locomotives employed was 36,293; the number of passenger cars, 27,909; the number of baggage, mail, and express cars, 7,937; and the number of freight cars, 1,191,884; making in all (locomotives and cars included) 1,264,023 pieces of rolling stock. The capital represented by this vast investment amounted to $11,124,930,551, or the sum, on the average, of $62,053 per mile, made up as follows: share capital, $5,075,629,070; bonded debt, $5,665,734,249; and other unfunded debt, $383,567,232.
Litigation over matters relating to railroads, therefore, has not only naturally involved immense sums of money, and the interests of many thousands of investors, but also given rise, oftentimes, to most important questions of constitutional law. Among such questions are those of Federal and State legislative control, and the exact extent of each, and the vested rights of corporations. Many efforts, at different times, have been made by the several States to subject the railroads within their borders to a strict governmental supervision, and to regulate the rates of fare and freight to be charged thereon, while at times the legislation has proceeded so far, that, if constitutional, it would have absolutely wrecked the railroads which it affected. It has been therefore necessary, both for the