perity." This was in 1885. A few months later, in Mo. Pac. Ry. v. Humes,1 the Court said: "If the laws enacted by a State be within the legitimate sphere of legislative power, and their enforcement be attended with the observance of those general rules which our system of jurisprudence prescribes for the security of private rights, the harshness, injustice, and oppressive character of such laws will not invalidate them as affecting life, liberty, or property without due process of law. . . . This Court is not a harbor where refuge can be found from every act of ill-advised and oppressive State legislation."

In 1896, in Fallbrook Irrigation District v. Bradley,2 the Court, through Mr. Justice Peckham, further elaborated this point of view in the following language: "It was never intended that the Court should, as the effect of the Amendment, be transferred into a court of appeal, where all decisions of State courts, involving merely questions of general justice and equitable considerations in the taking of property should be submitted to this Court for its determination. The final jurisdiction of the courts of the States would thereby be enormously reduced and a corresponding increase in the jurisdiction of this Court would result, and it would be a great misfortune in each case."

This attitude of the Court toward a narrow construction of the scope of the Amendment could not prevail against the steadily increasing tide of litigation which 1 115 U. S. 520. 2 164 U. S. 157.

came into being by virtue of its adoption. This was due to a lack of coöperation from the members of the Bar as well as to the uncertain character of the Amendment itself, the Court having never at any time attempted its definition.

As soon as cases began to arise involving questions other than those touching the negro race, the Court entered vigorous protests. In Davidson v. New Orleans,1 after a learned historical discussion of "due process of law," Mr. Justice Miller spoke for the Court as follows: "It is not a little remarkable, that while this provision has been in the Constitution of the United States as a restraint upon the authority of the Federal Government, for nearly a century, and while during all that time the manner in which the powers of the Government have been exercised has been watched with jealousy and subjected to the most rigid criticism in all of its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. But while it has been a part of the Constitution as a restraint upon the powers of the States, only a very few years, the docket of this Court is crowded with cases in which we are asked to hold that State Courts and State Legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision

196 U. S. 103.

as found in the Fourteenth Amendment. In fact, it would seem from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this Court the abstract opinions of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded."

This opinion was rendered after the Amendment had been in operation about nine years. Eight years later, in 1885, the above dictum was quoted verbatim by Mr. Justice Field, with the following remark: "This language was used in 1877, and now after the lapse of eight years, it may be repeated with an expression of increased surprise at the continued misconception of the purpose of the provision." At the beginning of the October Term of 1877, the Supreme Court had rendered only nine opinions in cases involving the Fourteenth Amendment. From 1877 to the beginning of the October Term of 1885, twenty-six additional opinions were rendered, making a total of thirty-five for the first sixteen years of the operation of the Amendment. What would the learned Justices have said could they have foreseen the present-day operation of the Amendment! Within the last thirteen years the Supreme Court has delivered four hundred and nine opinions by way of interpreting section one of the

1 Mo. Pac. Ry. v. Humes, 115 U. S. 520.

Amendment, this being an average of about thirty-one opinions each year.

In theory, the Amendment is all-embracing. Its language is comprehensive. It makes no exceptions as to the subject-matter which might come under its provisions. The attempt of the Supreme Court to limit its operation chiefly to the negro race has signally failed. The further attempt to discourage and curtail general litigation under it, also, as we have seen, met with small success.

Within recent years the Supreme Court has largely abandoned its earlier narrow interpretation of the Fourteenth Amendment. It is now given a width of scope which would have astounded the members of the Court of the seventies and eighties. What they dreaded as a misfortune has come to pass. The Amendment is now the chief source of litigation among all the provisions of the Federal Constitution. In the appellate proceedings from the States, it embraces the predominant share. In our study of the great problems which to-day confront the Nation, the Fourteenth Amendment as a constitutional factor of Federal intervention and control demands our careful consideration.

CHAPTER III

THE PRACTICAL SCOPE OF THE AMENDMENT

THE Congressional programme for the scope of the Amendment came to a sudden end at the hands of the Supreme Court. Within the short period intervening its adoption and the first cases involving its interpretation, the weight of public opinion had already repudiated the governmental ideal of the Radicals. The destinies of the measure having now been left to the Supreme Court, that tribunal attempted to set forth in general terms its future sphere of activity. This was done not so much by way of positive definition as by protests against certain classes of litigation under the Amendment. This original programme of the Court has, by the logic of events, also failed.

We now turn to see what is the actual and practical scope of the Amendment, that is to say, in what manner and to what extent it operates on the States. The spheres of State activity may be classified under four heads, viz: (1) The power of eminent domain, or the taking of private property for public use after just compensation; (2) the power of taxation, through which the revenues are produced, and the free exercise of which is essential to the life of a State; (3) the police