Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

By Donald E. Lively | Go to book overview

discoursed further on the meaning of due process. It described the provision as guaranteeing a person the liberty to use "all his faculties . . . in all lawful ways." What it secured specifically against state interference, according to the Court, was "liberty of contract."

The Allgeyer decision represented the ultimate triumph of ideology that regarded the Fourteenth Amendment as a bulwark for economic rights. The interests that Justice Field had urged accounting for by means of the privileges and immunities clause thus were secured by means of the due process clause. Adoption of Fourteenth Amendment priorities, as originally ordered by Field, manifested itself both in standards of review and in results. In rejecting economic rights theory a quarter of a century before, the Slaughter-House Court had emphasized the Fourteenth Amendment's essential concern with "the freedom of the slave race." The Allgeyer decision indicated that the use of state police powers to regulate economic activity was subject to rigorous constitutional review. At the same time, the Court allowed that its review of state classifications on the basis of race would be relatively relaxed. In Plessy v. Ferguson, decided a year before Allgeyer, the Court invested in the separate but equal doctrine and deferred to official segregation as a reasonable exercise of state police power that was well grounded in custom and practice. Taken together, Allgeyer and Plessy demonstrated that what was once marginal to Fourteenth Amendment purposes had become central, and what was once at its core had become peripheral. The Plessy principle remained functional through the middle of this century. Although not as enduring, economic rights doctrine had an extended run into the late 1930s. Constitutional priorities and principles by the beginning of the twentieth century thus had been substantially reordered. As the first few decades of the century evolved, substantive due process concepts established significant impediments to the exercise of legislative power. The Fourteenth Amendment that had originated as a major factor in resolving one crisis of the union eventually became part of another constitutional emergency.


Bibliography

Cases

Allgeyer v. Louisiana, 165 U.S. 578 ( 1897).

Blylew v. United States, 80 U.S. 581 ( 1872).

Bradwell v. Illinois, 83 U.S. 130 ( 1873).

Civil Rights Cases, 109 U.S. 3 ( 1883).

Corfield v. Coryell, 6 F. Cas. 546 (C.C.D. Pa. 1823).

Loan Association v. City of Topeka, 87 U.S. 655 ( 1874).

Minor v. Happersett, 88 U.S. 162 ( 1874).

Mugler v. Kansas, 123 U.S. 623 ( 1887).

-60-

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Foreshadows of the Law: Supreme Court Dissents and Constitutional Development
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • INTRODUCTION: JUDICIAL REVIEW AND CONSTITUTIONAL DEVELOPMENT xiii
  • Bibliography xxvi
  • Chapter 1 a Constitutional Right in Slavery 1
  • Bibliography 22
  • Chapter 2 Images of a New Union 25
  • Bibliography 41
  • Chapter 3 Constitutional Redefinition and National Reconstruction 43
  • Bibliography 60
  • Chapter 4 the Rise, Demise and Resurrection of Substantive Due Process 63
  • Bibliography 85
  • Chapter 5 Color and the Constitution 87
  • Bibliography 111
  • Chapter 6 Freedom of Speech: the "Indispensable" Liberty 113
  • Bibliography 134
  • Chapter 7 the Right to Be Let Alone 137
  • Bibliography 158
  • AFTERWORD 161
  • Index 163
  • About the Author 169
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