Open main menu

Page:Harvard Law Review Volume 1.djvu/333

This page has been proofread, but needs to be validated.

adoption. It can hardly be supposed that this part of the first section, if designed radically to alter the distribution of powers, would have passed through Congress almost unnoticed. Yet such is the case; while Charles Sumner, and Henry Wilson, and other leading statesmen of the period were hotly disputing over other provisions, this one was allowed to pass wholly undiscussed, and almost unmentioned. If its effect was only to reënforce provisions already found in most, if not all, of the State constitutions, to prevent wilful violations by legislation of certain principles of fundamental justice, which, except under the influence of popular passion, would never be violated, while an important development, it would not be a wide departure, and its failure to attract attention is readily understood.

That such is the proper interpretation is deducible alike from the spirit that pervades it, from its relation to the body of the Constitution, and from the decisions as to its effect. There is no indication in the amendment itself that it was designed to enlarge the jurisdiction of the federal Supreme Court by imposing the requisite of due process of law on the part of the States, and it is indeed fairly inferable from the language used that the chief object was, as stated by Judge Cooley (Constitutional Limitations, 5th ed., p. 359, note 3), to preclude legislation. In this sense only is it an outgrowth of, rather than an excrescence upon, the original instrument. And although a few expressions may be found in the reports suggesting that it has a more sweeping effect, no case has yet gone so far as would be required in order to say that any part of the proceedings in the Anarchists’ Case was within the scope of the amendment, or that anything in the case except the validity of the jury law of Illinois would fall within its purview.

The intensity of the struggle to preserve nationality and the difficulties of the reconstruction period have created a tendency to look upon the national government as the source of protection in cases where personal rights are concerned, even when they are rights granted by the States themselves, and guaranteed by their constitutions. In avoiding the perils of dissolution, the not less perils of too great centralization have come to be disregarded, and a latitudinarian spirit of construction would obliterate the landmarks set by the founders of the nation, and erect upon the basis of the Fourteenth Amendment a new judicial system with the Su-