JUDICIARY: Experiments in Economics

No person shall be . . . deprived of life, liberty or property without due process of law—5th Amendment.

. . . nor shall any State deprive any person of life, liberty or property without due process of law—14th Amendment.

The Supreme Court's economic power over all U. S. citizens is derived in large measure from these "due process" provisions of the Constitution. They give it the final decision in Government's ceaseless struggle to control and regulate Business & Industry. They are the legal refuge of every corporation (a "person" under the law) which feels itself misused by a Federal or State board, the great rocks on which many a visionary attempt at social reform legally founders.

The first "due process" amendment was originally intended to give the individual citizen protection against political tyranny by the Federal Government. Because it dealt in abstractions, the Supreme Court, by interpretations, had wide latitude in defining such relative terms as "reasonable," "arbitrary" and "legitimate." Thus a century of evolution transformed the 5th Amendment into a weapon with which the Court could suppress any regulatory experiments by Congress of which it disapproved. In the hands of the Supreme Court the 5th Amendment wrecked an effort to establish a minimum wage law for women in the District of Columbia, on the ground that such a law violated "liberty of contract." Likewise zoning laws were annulled because they unconstitutionally deprived owners of the free use of their property. To circumvent this "due process" clause Congress, whose attempt to stamp out child labor by taxation was invalidated by the Supreme Court, submitted to the States the Child Labor Amendment to the Constitution.* Many have been the cases of railroads and utilities which have convinced a majority of the Supreme Court that rates fixed by Federal commissions were too low to earn a fair return on their property, were thus "confiscatory" and hence constitutionally void under the 5th Amendment.