WOE UNTO YOU, LAWYERS!

should be slow to construe the clause in the Fourteenth Amendment as committing
to the Court, with no guide but the Court’s own discretion, the validity of whatever
laws the States may pass.”
Justice Holmes’ brief warning about the temptation to follow personal
preferences where The Law is so amorphous and indeterminate was spoken, as
usual, in dissent. But what did he imply by his reference to “the words ‘due process
of law’ if taken in their literal meaning”? What did that little clause of the
Fourteenth Amendment, since inflated by the Supreme Court to tremendous
significance, originally mean? It makes an interesting story.
The Fourteenth Amendment was one of three amendments added to the
Constitution shortly after the Civil War to protect the civil rights of the negroes. The
first of its five sections included the command, presumably intended to prevent
persecution of the ex-slaves: -- “nor shall any state deprive any person of life,
liberty, or property without due process of law.” But the words used in that clause
had appeared in the Constitution before.
They had appeared in the Fifth Amendment as part of the original Bill of
Rights. There, seventy-seven years before the Fourteenth Amendment was adopted,
it was decreed: -- “nor shall (any person) be compelled in any criminal case to be a
witness against himself, not be deprived of life, liberty, or property without due
process of law.” Because the Fifth Amendment was said to restrict only the federal
government, it was felt necessary to place the same restriction on the states, in the
Fourteenth.
What, then, was the “due process” business intended to mean? How did it
happen to have been coupled with the prohibition against making a man take the
stand against himself in a criminal trial? It was no accident. For “due process,”
before the Supreme Court began to build general principles around it, meant nothing
more complicated than “proper procedure.” And being deprived of life, liberty, or
property without due process of law meant only being hanged (deprived of life),
jailed (deprived of liberty), or fined (deprived of property) without a proper trial.
Thus, the “due process” clause was originally intended to apply only to
criminal cases. The idea that any statute, much less a non-criminal one like a tax or
a regulation of business, after being properly passed by a legislature, signed by a
governor, and enforced according to its terms by judges, could amount to a
deprivation of anything without due process of law would once have been laughed
out of court. Yet the Supreme Court has built the bulk of its Constitutional Law, as
applied to the states, on precisely that strange supposition. It has taken a simple
phrase of the Constitution which originally had a plain and precise meaning, twisted
that phrase out of all recognition, ringed it around with vague general principles
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