Page:Harvard Law Review Volume 32.djvu/256

220 HARVARD LAW REVIEW not due process; and the actual course of suit is to show what has been done, garnish the concrete facts if possible with opinion evi- dence, and leave the court to include or exclude as to it seems, — what? Expedient, poHtic, necessary, advisable, or desirable, — say the critics, — but whatever carping observers say, the court always says, lawful. Any study of actualities in this domain of constitutional applications presents this final query: — What are the preferred tests, what the evidential material most persuasive, — in producing a ruUng that any given governmental act is or is not something that can be discovered, but cannot be defined. A process suggesting the analysis of organic bodies, of which the flavor or odor is often the leading characteristic; — with the vital element breathing defiance to the analyst. The reasons urging our fathers in citizenship to put the words where they are, and the schools of interpretation generated by them, may be mentioned before attempting this legal chemistry. The Fifth Amendment, like all those agreed on as the price of constitutional adoption, was based on an instinctive provincial fear that the new nation would minimize the states. I believe this is admitted by all students. The Fourteenth was a straight party measure, due to distrust of the states solely in respect of their possible treatment of the negro. The sufficient proof of party spirit is that in all the legislatures of all the states exactly one Democrat voted for it, — and that man's name should be rescued from obhvion.^ He was Assemblyman Bernard Cregan of New York, — commonly known as "Tom Thumb" from his diminu- tive size. The Fifth Amendment was not opposed because most thinking persons deemed it harmless per se, and a sop to a parochial populace; and the Fourteenth was adopted, because the northern majority hoped thereby to secure for the negro that sort of pohtical and personal Hberty to which they were themselves accustomed and thought every human entitled, — not doubting African fitness therefor because he, by hypothesis, was human also. This is a small foundation for the superstructure of doctrine raised around the words "liberty and property/' — fife has borne but small part in the discussion. Every reported consideration of the constitutional phrase bears internal evidence that the writer • Flack, Adoption of the Fourteenth Amendment.