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In assuming the position here taken as to non-property character of a public office and in dismissing the writ of error on that ground, it would seem that the court was scarcely in harmony with its preceding decisions, in several of which, as we have already seen, by assuming jurisdiction, and by examining the character of the processes by which the contests for office had been settled to see if they provided due process of law, it had assumed that as between two contestants for an office, the right to an office and its emoluments was a property right within the meaning of the Fourteenth Amendment.27

27 Thus Justice Brewer, in his dissenting opinion, says: "I agree fully with those decisions which are referred to [in the majority opinion], and which hold that as between the State and the office holder there is no contract right either to the term of office or to the amount of salary, and that the legislature may, if not restrained by constitutional provisions, abolish the office or reduce the salary. But when the office is not disturbed, when the salary is not changed, and when, under the Constitution of the State, neither can be by the legislature, and the question is simply whether one shall be deprived of that office and its salary, and both given to another, a different question is presented, and in such a case to hold that the incumbent has no property in the office, with its accompanying salary, does not commend itself to my judgment." Justice Brewer goes on to argue, however, that the judgment of the Court of Appeals of Kentucky should have been affirmed for the reason that due process of law had been observed. "But," he concludes, "because, as I understand the law, this court has jurisdiction to review a judgment of the highest court of a State ousting one from his office and giving it to another, and a right to inquire whether that judgment is right or wrong in respect to any federal question such as due process of law, I think the writ of error should not be dismissed, but that the judgment of the Court of Appeals of Kentucky should be affirmed." Justice Brown concurred in the opinion rendered by Justice Brewer.

A dissenting opinion was also rendered in this case by Justice Harlan. In this he argues not only that the writ of error should not have been dismissed, but that the court should adjudge that the decree in the state court had taken from Taylor and Marshall rights protected by the Fourteenth Amendment. In agreement with Justices Brewer and Brown he argues that as between two claimants a public office is property, and had been so held by the Supreme Court in previous cases. But he goes even further than this, and brings the right of office within the meaning of the term "liberty" as used in the Fourteenth Amendment. "What more directly involves the liberty of the citizen," he says, "than to be able to enter upon the discharge of the duties of an office to which he has been lawfully elected by his fellow citizens? What more certainly infringes upon his

liberty than for the legislature of the State, by merely arbitrary action, in violation of the rules and forms required by due process of law, to take from him the right to discharge the public duties imposed upon him by his fellow citizens in accordance with the law? . . . I grant that it is competent for a State to provide for the determination of contested election cases by the legislature. All that I now seek to maintain is the proposition that when a state legislature deals with a matter within its jurisdiction, and which involves the life, liberty or property of the citizen, it cannot ignore the requirement of due process of law. . Looking into the record before us, I find such action taken by the body claiming to be organized as the lawful legislature of Kentucky as was discreditable in the last degree and unworthy of the free people whom it professed to represent." After a statement of the facts which in his opinion justified this characterization of the action of the legislature, Justice Harlan concludes: "Those who composed that body seemed to have shut their eyes against the proof for fear that it would compel them to respect the popular will as expressed at the polls. Indignant, as naturally they were and should have been, at the assassination of their leader, they proceeded in defiance of all forms of law and in contempt of the principles upon which free government rest, to avenge that terrible crime, namely, the destruction by arbitrary methods of the right of the people to choose their chief magistrate. The former crime, if the offender be discovered, can be punished as directed by law. The latter should not be rewarded by a declaration of the inability of the judiciary to protect public and private rights, and thereby the rights of voters, against the wilful, arbitrary action of a legislative tribunal which, we must assume from the record, deliberately acted upon a contested election case involving the rights of the people and of their chosen representative in the office of governor without looking into the evidence upon which alone any lawful determination of the case could be made. The assassination of an individual demands the severest punishment which it is competent for human laws in a free land to prescribe. But the overturning of the public will, as expressed at the ballot box, without evidence or against evidence, in order to accomplish partisan ends, is a crime against free government, and deserves the execration of all lovers of liberty. . . . I cannot believe that the judiciary is helpless in the presence of such a crime. The person elected as well as the people who elected him, have rights that the courts may protect. To say that in such an emergency the judiciary cannot interfere is to subordinate the right to mere power, and to recognize the legislature of a State as above the supreme law of the land. . . . The doctrine of legislative absolutism is foreign to free government as it exists in this country. The cornerstone of our republican institutions is the principle that the powers of government shall, in all vital particulars, be distributed among three separate co-ordinate departments, legislative, executive, and judicial. And liberty regulated by law cannot be permanently secured against the assaults of power or the tyranny of a majority, if the judiciary must be silent when rights existing independently of human sanction, or acquired under the law, are at the mercy of legislative action taken in violation of due process of law."

CHAPTER XI.

FEDERAL SUPERVISION OF STATE ACTIVITIES; THE FOURTEENTH AMENDMENT.

§ 85. The Fourteenth Amendment.

In the chapters which have gone before, the manner in which the Federal Government is secured from interference on the part of the States has been considered. We turn now to a topic which, while closely related to this subject, is yet distinct from it. This topic is the extent of the legal power of the Federal Government to examine state laws and supervise their execution with a view to seeing that they do not infringe in any way upon the rights secured to individuals by the federal Constitution. In other words, the question now to be considered is not the maintenance of the supremacy of the Federal Government, but the protection of individuals in the enjoyment of the rights and immunities guaranteed to them by the federal Constitution.

Prior to the adoption of the Fourteenth Amendment in 1868 the laws of the individual States, so long as they related to subjects over which the States had the right of legislation, were not subject to examination in federal courts with a view to ascertaining whether they deprived anyone of life, liberty, or property without due process of law, or denied to anyone equal legal protection. The first nine amendments to the federal Constitution which enumerated the fundamental rights of individuals that might not be violated were, from the beginning, construed to limit not the States but only the Federal Government. Until, therefore, the Fourteenth Amendment was adopted there was, so far as the federal Constitution and laws were concerned, nothing to prevent the several States from enacting laws which denied to their own citizens the equal protection of the laws or deprived them of life, liberty, and property, without due process of law. The only limitations laid upon the States by the Constitution were that they should enact no bills of attainder, or ex post facto

laws, or laws impairing the obligation of contracts. As a matter of fact, indeed, all of the States had by their own Constitutions taken from their legislatures the power to enact laws upon certain specified topics, and forbidden them to violate certain declared principles of justice and right. But the adoption of these constitutional limitations was purely voluntary upon their part.

In 1868, however, as one of the results of the Civil War, the Fourteenth Amendment was adopted, which, after declaring that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," goes on to provide that, "no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

For a number of years after the adoption of this Amendment it was by no means certain that the effect of the above-cited provisions would not be to endow the United States Government with additional powers so great as fundamentally to alter the very nature of the Union itself. There can be no question but that the clauses of the Amendment which we have quoted were easily susceptible of an interpretation that would have given them this result, and that, at the time they were framed and adopted by Congress and ratified by the necessary number of state legislatures, there were very many who believed that they would, and desired that they should, work this revolutionary change. in the American constitutional system. Fortunately, however, as all must now believe, the Supreme Court has been led to give to these words a construction that robbed them of such an effect.

1 See especially the debates attendant upon the passage of the Civil Rights Bill of 1866, the doubts as to the constitutionality of which led to the adoption of the Fourteenth Amendment. See also the dissenting opinion of Justice Harlan in the Civil Rights Cases (109 U. S. 3; 3 Sup. Ct. Rep. 18: 27 L. ed. 835). See also especially Flack, The Adoption of the Fourteenth Amendment.

This the court has been able to do by the principles which it has laid down in the cases which follow.2

86. The Slaughter House Cases.

The famous Slaughter House Cases,3 decided in 1873, grew out of the following facts: The State of Louisiana in the exercise of its "police powers," had passed an act chartering a company, and giving to it the exclusive right to establish and maintain stock-yards and landing places and slaughter houses for the City of New Orleans, and providing that all animals intended for food should be slaughtered there. The plaintiffs in the cases that have since come to be known as the "Slaughter House Cases" alleged that this act was unconstitutional as tested by the federal Constitution on the several grounds that it was in violation of the Thirteenth Amendment in that it created an involuntary servitude upon the part of those who were compelled to resort to this privileged company; and that it was in violation of the Fourteenth Amendment in that it deprived persons of liberty and property without due process of law, denied to them the equal protection of the laws, and abridged the privileges and immunities of citizens in the United States. It is only with this last claim that we are now concerned.

As we shall later see, the Fourteenth Amendment has been construed to give to the federal courts the power of examining whether, in the exercise of their ordinary police and other powers, the States have denied to anyone due process of law or the equality of the laws, but the claim that the rights and immunities which were alleged to have been violated by the Louisiana statute were ones coming within the scope of the phrase "privileges or im

2 In the following pages there is not attempted a general examination of the Fourteenth Amendment, but only a consideration of the extent to which this addition to the Constitution may be said to have altered the general character of our constitutional system, especially with reference to the extent to which either Congress has been granted an increased legislative power, or the Federal Government endowed with a general supervisory jurisdiction over state legislation.

316 Wall. 36; 21 L. ed. 394.

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