The Supreme Court in a Free Society

By Alpheus Thomas Mason; William M. Beaney | Go to book overview

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THE DEVELOPMENT OF DUE PROCESS

EIGHTEEN HUNDRED AND SIXTYeight was a critical year in the development of constitutional law because of two major events. Laissez-faire capitalism was then given an authoritative legal ideology by the publication of Thomas M. Cooley's classic work, Constitutuional Limitations. The Fourteenth Amendment, adopted that year, provided exponents of laissez-faire a constitutional text of great potentialities.

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

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