The Liberal Evolution of Due Process (Part II)

In the 1890s the Court began to use the Fourteenth Amendment to uphold individual and corporate rights for property and contracts. This began with the 1897 case between Burlington and Quincy Railroad Company v. Chicago. This was an eminent domain case where the city of Chicago refused to justly compensate the railroads for confiscated properties. The Court held that the Fourteenth Amendment’s due process clause and the Fifth Amendment’s “just compensation” clause to uphold the ruling. However, both the Fourteenth and Fifth Amendments declare that “no person shall be deprived the right of property without due process of the law”. This means that the Court could have simply applied the Fourteenth Amendment for its ruling and not hold the Bill of Rights applied to the states (but it did not). Another interesting aspect of this case is the Court ruled that corporations are people and are afforded the same rights – including having to pay taxes.

In 1900, the Maxwell v. Dow case tried to use the Fourteenth Amendment due process clause to apply the Sixth Amendment’s “trial by jury” clause to the states. The Court upheld the ruling that Utah could use eight man juries instead of twelve. Some believe this made the Courts ruling in the Burlington and Quincy Railroad Company an aberration (I do not believe so, since the Fourteenth Amendment mentions “property” and it did not have to apply the Fifth Amendment in the Burlington case). The 1905 decision between Lochner v. New York was more puzzling to many since the Court held that the state of New York could not legislate a 10 hour workday for bakeries. The reason the court reversed the New York decision was because granting New York that power would break a “contract” between an employee and his company. Contract is not mentioned in the Bill of Rights nor the Fourteenth Amendment. So how did the Court come to this conclusion? The contracts clause is found in Article I of the United States Constitution. Generally speaking, this clause was added to the Constitution in order to prohibit states from interfering with private contracts. The clause states that, 'No State shall...pass any...Law impairing the Obligation of Contracts... However, many argued that the Court applied the Fourteenth Amendment due process clause using what is known as “substantive due process” to reach its decision in Lochner since “contracts” have deep roots in American history. I do not believe that to be true, since the contracts clause covers the ruling. This case had other particulars such as big Bakery companies and unions trying to nudge out small bakeries and the fact the law only applied to bakers (could have used the Fourteenth Amendment’s “equal protection” clause?).

The Bill of Rights incorporation battle continued in the 1907 case: Twining v. New Jersey. The defense wanted to apply the Fourteenth Amendment’s due process clause to the Fifth Amendment’s “self-incrimination” clause to the states. The Court rejected the argument and sided with the State of New Jersey. However, the case opened the door for future cases involving the Fourteenth Amendment and the Bill of Rights because they cited the Burlington and Quincy Railroad Company decision in its majority ruling.

In the 1920’s the ACLU and many other advocates of the Fourteenth Amendment and Bill of Rights state incorporation theory changed course and began to apply the First Amendment instead of criminal procedure amendments. The Schneck v. United States ruling in 1919 set an early standard regarding the First Amendment. Schneck was charged and convicted for violating the “Espionage Act of 1917”. Schneck wrote anti-World War I pamphlets and the court upheld his conviction saying there was a “clear and present danger” and did not protect his freedom of speech or press. The Gitlow v. New York case in 1925 had a similar outcome. Gitlow was a communist and the manifesto they handed out suggested the use of violence to overthrow the government. Gitlow’s defense tried to say it was free speech defended by the First Amendment through the Fourteenth Amendment’s due process clause. Gitlow was denied because the Court felt Gitlow presented a “clear and present danger”. However, in Fiske v. Kansas a case involving the manifesto of the Industrial Workers of the World (IWW), the Court said there was no “clear and present danger” and overturned the conviction against Fiske. Interestingly, the case simply said that Fiske was denied “due process of the law” and did not tie the decision to the First Amendment.