WOE UNTO YOU, LAWYERS!

For most of Constitutional law as applied to state statutes, and as laid down by
the Supreme Court, revolves around that little phrase. On the basis of that phrase
alone, the Court has killed hundreds upon hundreds of state attempts to regulate or
tax business and businessmen. As a matter of fact, it is practically impossible for a
state to pass such a statute today without having a legal howl carried to the Supreme
Court to the effect that the statute “violates the due process clause of the Fourteenth
Amendment.”
What the, according to its official interpreter, does the little clause mean?
When is a deprivation of property not a deprivation of property? Surely every tax is,
in a sense, a deprivation of property and some state taxes are perfectly legal. And
what is implied by that lovely limpid legalism, “due process of law”?
To help it answer these questions the Supreme Court has evolved – and this
will be a big surprise – a batch of general principles. There is the general principle
that a regulation which is a proper exercise of the state police power is valid but that
a regulation which does not fall within the police power is deprivation of property
without due process of law. There is a general principle that businesses affected
with a public interest may, by and large, be regulated but that to regulate a business
not so affected is a d.o.p.w.d.p.o.l. There is a g. p. that a tax on anything over which
the state has jurisdiction is proper, but that a tax on something over which the state
has no jurisdiction is a d.o.p., etc. And so on.
Of course, just what state police power is and just what a business affected
with a public interest amounts to and just what state jurisdiction to tax means is, in
each case, another and longer story. There are sub-principles and sub-sub-principles
and exceptions. And of course, too, there is not a word in the Constitution about
police power or businesses affected with a public interest or state jurisdiction to tax.
But this fact does not stop the Supreme Court from using such concepts as the basis
of Constitutional Law. Even the Highest Court of the Land laying down the
Supreme Law of the Land reverts to the same old hocus-pocus of solemn words
spoken with a straight face, and meaning, intrinsically, nothing.
If this indictment sounds too strong, consider what a member of the Court
once had to say about the uses to which his brethren put that little clause of the
Fourteenth Amendment. These are the words of the late Justice Holmes: --
“I have not yet adequately expressed the more than anxiety that I feel at the
ever-increasing scope given to the Fourteenth Amendment in cutting down what I
believe to be the constitutional rights of the states. As the decisions now stand I see
hardly any limit but the sky to the invalidating of those rights if they happen to strike
a majority of this Court as for any reason undesirable. – Of course the words ‘due
process of law’ if taken in their literal meaning have no application to this case; -- we
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