The Development of Due Process
THE YEAR 1868 was a critical year in the development of constitutional law because of two major events: the publication of Thomas M. Cooley's classic work Constitutional Limitations and the adoption of the Fourteenth Amendment.
For our purposes Cooley's work contains two chapters of special interest: Chapter 11, entitled "Protection of Property by the Law of the Land"; and Chapter 16, entitled "The Police Power and the States." These two chapters constitute a compendium of state constitutional decisions prior to 1868 in which the courts had upheld the power and the right indicated in the chapter title. "Thus was the national Supreme Court," Professor Corwin has written, "...supplied with a double set of answers, each duly authenticated by supporting precedents ...touching the vital problem of the relation of legislative power to the property right." So, just at the time when the practice of inserting a "reservation clause" in state charters lessened the usefulness of the impairment-of- contract clause, the Fourteenth Amendment added another weapon of untold potentialities to the judicial arsenal. Henceforth the battles to protect property rights against state regulation were destined to revolve around "due process."
Despite the unlimited potentiality latent in the Fourteenth Amendment for the enhancement of the Court's supervisory power, the Justices seemed reluctant at the outset to exploit this new source of authority. In the Slaughterhouse cases (p. 388) the Court, speaking through Justice Miller, refused to construe the privileges-and-immunities clause as breaking down the distinction between state and national citizenship. The purpose of the framers of the Fourteenth Amendment was not to confer on the national government the duty of protecting both kinds of citizenship. National citizenship, said Miller, included the right of coming to the seat of the government, the right to enjoy government offices, and the right to government protection on the high seas, whereas state citizenship in-