GPO-CONAN-2017-10-15.pdf

And the limitations imposed by our constitutional law

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And the limitations imposed by our constitutional law upon the ac- tion of the governments, both state and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforce- ment of these limitations by judicial process is the device of self- governing communities to protect the rights of individuals and mi- norities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the govern- ment.” By this language, the states were put on notice that all types 68 110 U.S. 516, 528, 532, 536 (1884). 1853 AMENDMENT 14—RIGHTS GUARANTEED
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of state legislation, whether dealing with procedural or substantive rights, were now subject to the scrutiny of the Court when ques- tions of essential justice were raised. What induced the Court to overcome its fears of increased judi- cial oversight and of upsetting the balance of powers between the Federal Government and the states was state remedial social legis- lation, enacted in the wake of industrial expansion, and the impact of such legislation on property rights. The added emphasis on the Due Process Clause also afforded the Court an opportunity to com- pensate for its earlier nullification of much of the privileges or im- munities clause of the Amendment. Legal theories about the rela- tionship between the government powers and private rights were available to demonstrate the impropriety of leaving to the state leg- islatures the same ample range of police power they had enjoyed prior to the Civil War. In the meantime, however, the Slaughter- House Cases and Munn v. Illinois had to be overruled at least in part. About twenty years were required to complete this process, in the course of which two strands of reasoning were developed. The first was a view advanced by Justice Field in a dissent in Munn v. Illinois , 69 namely, that state police power is solely a power to pre- vent injury to the “peace, good order, morals, and health of the com- munity.” 70 This reasoning was adopted by the Court in Mugler v. Kansas , 71 where, despite upholding a state alcohol regulation, the Court held that “[i]t does not at all follow that every statute en- acted ostensibly for the promotion of [public health, morals or safety] is to be accepted as a legitimate exertion of the police powers of the state.” The second strand, which had been espoused by Justice Bradley in his dissent in the Slaughter-House Cases , 72 tentatively transformed ideas embodying the social compact and natural rights 69 94 U.S. 113, 141–48 (1877). 70 “It is true that the legislation which secures to all protection in their rights, and the equal use and enjoyment of their property, embraces an almost infinite va- riety of subjects. Whatever affects the peace, good order, morals, and health of the community, comes within its scope; and every one must use and enjoy his property subject to the restrictions which such legislation imposes. What is termed the police
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