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11 176 Mass. 210, 213, 57 N.E. 356, 358 (1900).
Holmes, Legal Theory, and Judicial Restraint
142

drawing a line between permissible state “police power” and constitu-
tionally impermissible deprivations of property without due process of
law:
All rights tend to declare themselves absolute to their logical extreme. Yet all
in fact are limited by the neighborhood of principles of policy which are other
than those on which the particular right is founded, and which become strong
enough to hold their own when a certain point is reached. The limits set to
property by other public interests present themselves as a branch of what is called
the police power of the State. The boundary at which the con¬‚icting interests
balance cannot be determined by any general formula in advance, but points in
the line, or helping to establish it, are ¬xed by decisions that this or that concrete
case falls on the nearer or farther side.12

As in the common law analysis of tort cases written in 1873, drawing on
Beadel v. Perry, Holmes went on to illustrate the point with an example of
the permissible height of a new building.
For instance, the police power may limit the height of buildings, in a city, without
compensation. To that extent it cuts down what otherwise would be the rights of
property. But if it should attempt to limit the height so far as to make an ordinary
building lot wholly useless, the rights of property would prevail over the other
public interest, and the police power would fail. To set such a limit would need
compensation and the power of eminent domain.13

From this it can be seen that Holmes was not against reading substan-
tive content into the Fourteenth Amendment.14 Constitutional rights,
like others, could be seen as applied by “matters of degree,” even though
tending to “declare themselves absolute to their logical extreme.” Implicit
in this is a view of constitutional rights not as innate or a priori spheres of
protected conduct (as in the 1878 article denying that law operated like
a natural force) but as causes of action, of which the principal character-
istic of interest to Holmes was their operation as avenues of permissible
judicial inquiry.
Hudson County Water Co., and other cases in which he raised the analogy
with common law line drawing, had less to do with where the line was to be
drawn, or how it might be found, than with the danger of failing to recog-
nize that constitutional decisions involve questions of degree. The Court
had by 1900 long recognized that claims of constitutional deprivation by

12 209 U.S. 349 (1908).
13 Id.
14 Bork, The Tempting of America (New York: Free Press, 1990), 45; Michael J. Phillips, “The
Substantive Due Process Decisions of Mr. Justice Holmes,” 36 American Business Law
Journal 437“77 (1999).
Common Law Constitutionalism 143

state regulation had to be weighed against the police power, and it had
marked out points along the line between them. This did not foreclose
the tendency to fall into reliance on postulates formulated in advance.
Holmes came to the Supreme Court with a distinct awareness that the
inquiry of an appellate court, particularly in constitutional matters, could
be short-circuited by abstractions.
The due process clauses of the Fifth and Fourteenth Amendments,
protecting against any federal or state laws depriving any person “of life,
liberty, or property without due process of law,” began shortly after the
Civil War to be looked on by parties aggrieved by governmental action
much as negligence doctrine in the common law “ as a cause of action
through which more general grievances might be redressed.15 Federal
due process challenges to state regulations were not new in 1881 when
Holmes published The Common Law. Four years earlier Justice Samuel
Freeman Miller had complained in Davidson v. Board of Administrators of
New Orleans16 that, although a strict procedural reading of “due process”
had long limited the scope of federal legislation under the Fifth Amend-
ment, passage of the Fourteenth had focused attention on its meaning
by inundating the Supreme Court with challenges to state law.

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 that Government have been exercised has been watched with jealousy,
and subjected to the most rigid criticism in all its branches, this special limitation
upon powers has rarely been invoked in the judicial forum or the more enlarged
theater of public discussion. But while it has been a part of the Constitution,
as a restraint upon the power 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.17

Miller observed that the character of these cases made it plain 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.18

15 Freund, On Law and Justice, 3“6.
16 96 U.S. 97 (1877).
17 Id. at 103“4.
18 Id at 104.
Holmes, Legal Theory, and Judicial Restraint
144

He added, auspiciously,

If, therefore, it were possible to de¬ne what it is for a State to deprive a person of
life, liberty, or property without due process of law, in terms which would cover
every exercise of power thus forbidden to the State, and exclude those which are
not, no more useful construction could be furnished by this or any other court
to any part of the fundamental law.19

Within a year, the Supreme Court would decide the case of Chicago,
Milwaukee & St. Paul Railway. v. Minnesota, holding that due process was
violated by a state law making ¬nal the decisions of a rate-making commis-
sion. From that decision, re¬‚ected Judge Charles M. Hough in a Harvard
Law Review article thirty years later, “I date the ¬‚ood.”20
Miller™s rumination is the ¬rst indication of serious doubt concerning
the Court™s ability to interpret the due process clause coherently. In early
Fourteenth Amendment decisions it had attempted to reconcile the lan-
guage of the due process clause with the long recognized power of the
states to regulate their internal affairs “ the “police power.” The result was
an empty phrase, an ipse dixit “ the amendment takes up where the police
power leaves off. What was the Court to do as new cases arose further and
further outside the traditional purview of police regulations? The 1902
decision in Otis v. Parker, belonging more to the newer class of economic
regulation than to the traditional rubric of “health, safety and morals,”
marks a new stage in the analysis of the due process clause, cognate with
Holmes™s prior thinking. This case, held for reargument by a tie vote,
awaited Holmes when he joined the Court in 1902.
As Professor Edward S. Corwin and others have noted, in its initial
approach to due process the Court had ¬rst sought to deal with new
controversies through a literal application of the notion of “process.”
The clause did nothing more than assure procedural safeguards and
contained no broader guarantee than that accepted procedures would
be followed when the government sought to control the lives, liber-
ties, or properties of citizens.21 Corwin chronicles the change: Four-
teenth Amendment due process was ¬rst ignored in the Slaughter-House

19 Id.
20 Charles M. Hough, “Due Process of Law To-day,” 32 Harv. L. Rev. 218, 228 (1919);
Freund, On Law and Justice, 4.
21 Corwin, “Due Process of Law before the Civil War” and “The Supreme Court and the
Fourteenth Amendment,” in American Constitutional History: Essays by Edward S. Corwin,
ed. Alpheus T. Mason and Gerald Garvey (New York: Harper & Row, 1964), 46, 67.
Common Law Constitutionalism 145

Cases.22 It was then brie¬‚y held at bay with the public purpose doctrine in
Munn v. Illinois, until the watershed case of Chicago, Milwaukee & St. Paul
Railway v. Minnesota, in which a state rate-making action was overturned
(though on procedural grounds).23 Although Corwin himself decried
the abandonment of a more “procedural” due process, he conceded
that the development of “substantive” due process has an inevitable look
to it:

The truth is that, the moment the Court, in its interpretation of the Fourteenth
Amendment, left behind the de¬nite, historical concept of “due process of law”
as having to do with the enforcement of law and not its making, the moment it
abandoned, in its attempt to delimit the police power of the State, its ancient
maxim that the possibility that a power may be abused has nothing to do with its
existence, that moment it committed itself to a course that was bound to lead,
however gradually and easily, beyond the precincts of judicial power, in the sense
of the power to ascertain the law, into that of legislative power which determines
policies on the basis of facts and desires.24


As can be guessed from these sentiments, Corwin would criticize Holmes
for what he took to be an unquestioning acceptance of this development;
but Holmes™s course was dictated by the principles of his own method and
the skepticism of empty abstractions.
Corwin identi¬ed Mugler v. Kansas as the ¬rst case in which the pro-
cedural view was noticeably absent and replaced by the beginnings of a
broader doctrine “ what Corwin and the majority of writers have assumed
to be the view that due process of law means “reasonable law, in the Court™s
opinion.” These writers often attribute to the Court more certainty of
purpose than the record attests, particularly in light of such remarks as
those of Justice Miller. Corwin noted the in¬‚uence of persistent advocates
for newly regulated industries, the sheer public pressure of controversies
¬‚owing into the judicial arena and demanding consideration at the high-
est level on more than a strictly procedural basis. He conceded that, if not
due process, perhaps other clauses of the Constitution might have been
found: “[g]iven a suf¬cient hardihood of purpose at the rack of exegesis,
and any document, no matter what its fortitude, will eventually give forth


22 83 U.S. 36 (1872).
23 94 U.S. 113 (1877); 134 U.S. 418 (1890).
24 Corwin, “The Supreme Court and the Fourteenth Amendment,” in American Constitu-
tional History, 96.
Holmes, Legal Theory, and Judicial Restraint
146

the meaning required of it.”25 When the ¬‚ood became irresistible, the
Court would fumble for a rationale.
As a theory of public inquiry, Holmes™s vision may have embodied a
path to restraint, but it was eminently open to the asking of questions “
even new ones “ that were pertinent to the plain meaning of the rele-
vant text. This double-edged sword of an objective reading is cogently
expressed in Truax v. Corrigan, where he wrote, “There is nothing that I
more deprecate than the use of the Fourteenth Amendment beyond the
absolute compulsion of its words to prevent the making of social exper-
iments that an important part of the community desires . . . even though
the experiments may seem futile or even noxious to me and to those
whose judgment I most respect.”26
By the turn of the century, Holmes, ever committed to his original
common law model, had nonetheless distinguished two types of dif¬cult
case. The ¬rst was the case caught equidistant from con¬‚icting but estab-
lished precedents, as in the image of “opposite poles,” the “widely dif-
ferent cases” around which cases “clustered” and eventually approached
each other as courts marked out points on a line between. On that line
“the distinction becomes more dif¬cult to trace,” until eventually a de¬-
nite line is arrived at, which the courts might identify as a settlement of
the issues; the cases might then be “reconciled” into a new general rule.
Another type was the clash of yet unresolved social interests, suggested in
his observations regarding the Patnoude case in 1901, in which the court
was confronted with a more indeterminate situation: “A line has to be
drawn to separate the domains of the irreconcilable desires. Such a line
cannot be drawn in general terms.”27
In the ¬rst the con¬‚ict is between maturing lines of precedent, each
representing patterns of conduct that have established separate common


25 Id.: “The value of these dissenting opinions [by Justices Harlan and Holmes in Lochner
v. New York] is that of most of the other dissenting opinions that we have noted, viz.: that
they serve to measure the advance that the law receives in a given direction from the
decision dissented from. On the other hand, they are both of them open to criticisms
of a rather obvious sort. Thus Justice Harlan was himself the author of Mugler v. Kansas,
and the line connecting that decision with the one in Lochner v. New York is both direct
and logical. Much the same criticism has to be levelled against Justice Holmes™ dissent
also. For it is to be noted that he accepts in toto the present day view of due process
of law.” But cf. Holmes in Truax v. Corrigan, 257 U.S. 312, 344 (1921), n. 26 infra and
accompanying text.
26 257 U.S. 312, 344 (1921).
27 Patnoude v. New York, New Haven, & Hartford Railroad, 180 Mass. 119, 121“22, 61 N.E.
813, 814 (1901).
Common Law Constitutionalism 147

law roots and must ¬nd an accommodation, as in the Beadel example. In
the second, the con¬‚ict has yet to mature, and involves unreconcilable
interests on the opposing sides. Given the prerogative of choice, the judge
must decide, but not by choosing between the two more general interests.
Here Holmes had come to stress ¬rst the necessity of paring away false
reasons and, later, the danger of siding prematurely with a view based on
beliefs that had yet to prevail.
On December 11, 1902, three days after he took his seat on the
Supreme Court of the United States, Otis v. Parker was reargued. At issue
was whether a provision of the California Constitution, which rendered
contracts on margin for the sale of mining stock unenforceable, violated
the due process clause of the Fourteenth Amendment of the United States
Constitution. Holmes wrote the opinion, and it was issued on January 5.
The objection urged in Otis was that the restriction on freedom of con-
tract bore no reasonable relation to the evil sought to be cured. Citing
Mugler for the proposition that a state cannot “interfere arbitrarily with
private business or transactions, and that the mere fact that an enactment
purports to be for the protection of public safety, health, or morals, is not
conclusive upon the courts,” he wrote:

But general propositions do not carry us far. While the courts must exercise a
judgment of their own, it by no means is true that every law is void which may seem
to the judges who pass upon it excessive, unsuited to its ostensible end, or based
upon conceptions of morality with which they disagree. Considerable latitude
must be allowed for differences of view as well as for possible peculiar conditions
which this court can know imperfectly, if at all. Otherwise a constitution, instead
of embodying only relatively fundamental rules of right, as generally understood
by all English-speaking communities, would become the partisan of a particular
set of ethical or economical opinions, which by no means are held semper ubique
et ab omnibus.28

This passage recognizes that a subjective test of reasonableness “ in which
the justices applied their own views “ was inadequate to settle new con-
¬‚icts between legislative and constitutional rights in controversies aris-
ing under the due process clause. In all three categories mentioned by
Holmes “ laws excessive, unsuited to their ostensible ends, or based on
inimical moral notions “ it could be said that such laws were “unreason-
able” or, in the terms of the Mugler opinion, lacking a “real or substantial
relation” to one of the purposes within the constitutional power of the
states.

28 Otis v. Parker, 187 U.S. 606, 608“9 (1903).
Holmes, Legal Theory, and Judicial Restraint
148

The reason given by Holmes for his reluctance to rely on the Mugler test
is that “latitude” must be allowed both for differences of view and “possible
peculiar conditions” that the Court could know “imperfectly, if at all.”
This may be regarded as a reappearance, in different garb, of the objective
standard of common law liability. If an objective, rather than subjective,
test of reasonableness was the correct standard, the Supreme Court must
defer when local conditions could be known only “imperfectly.”
This would be true of another case, three years later, in which Holmes
found himself in dissent: the famous Lochner v. New York, holding uncon-
stitutional New York™s regulation of hours per day in which bakers could
be required to work. That 5“4 majority opinion was written by one of
the two dissenters in Otis, Justice Peckham, applying a subjective test of
reasonableness: “There is no reasonable ground for interfering with the
liberty of person or the right of free contract, by determining the hours
of labor, in the occupation of baker.” The majority clearly felt that a line
had to be drawn somewhere short of wholesale regulation of all hours of
labor by the state. “It might be safely af¬rmed that almost all occupations
more or less affect the health,” Peckham noted, and he observed that the
mere excuse of health regulation could warrant intrusion of employment
regulation into many businesses:

In our large cities there are many buildings into which the sun penetrates for but
a short time in each day, and these buildings are occupied by people carrying
on the business of bankers, brokers, lawyers, real estate, and many other kinds of
business, aided by many clerks, messengers, and other employees.29

Hence, “[s]carcely any law but might ¬nd shelter under such assump-
tions, and conduct, properly so called, as well as contract, would come
under the restrictive sway of the legislature.” But Peckham™s majority
opinion was not content to rest its decision on a relative judgment, nor
on the particular facts of the bakers™ case.

It is impossible for us to shut our eyes to the fact that many of the laws of this
character, while passed under what is claimed to be the police power for the
purpose of protecting the public health or welfare, are, in reality, passed from
other motives. . . . It seems to us that the real object and purpose were simply to
regulate the hours of labor between the master and his employees (all being
men, sui juris) in a private business, not dangerous in any degree to morals, or

29 Lochner v. New York, 198 U.S. 45, 59“60 (1905). Holmes™s “objective” reason parallels
that of Hale, while Peckham™s “subjective” reason echoes that feared by Hobbes. See
chapter 4, supra.
Common Law Constitutionalism 149

in any real and substantial degree, to the health of the employees. Under such
circumstances the freedom of master and employee to contract with each other
in relation to their employment, and in de¬ning the same, cannot be prohibited
or interfered with, without violating the Federal Constitution.30

This embodied the same error as the SJC majority had committed
in the ¬rst labor case, Vegelahn v. Guntner: the majority was expressing a
view on policy through the guise of a legal right. The Court™s focus on a
contractual “right” recast the decision from one evaluating speci¬c events
into a con¬‚ict among general propositions of economic theory: whether
it was wise for the state to regulate hours of labor in any profession. In his
opening remarks Holmes wrote: “This case is decided upon an economic
theory which a large part of the country does not entertain.”

If it were a question whether I agreed with that theory, I should desire to study it
further and long before making up my mind. But I do not conceive that to be my
duty, because I strongly believe that my agreement or disagreement has nothing
to do with the right of a majority to embody their opinions in law.31

Following this came the same point which he had made in Otis, that a
policy of permitting state laws limiting absolute freedom of contract was
already “settled by various decisions of this court,” including Sunday laws,
usury laws, prohibition of lotteries, and the like.

The liberty of the citizen to do as he likes so long as he does not interfere with
the liberty of others to do the same, which has been a shibboleth for some well-
known writers, is interfered with by school laws, by the Post Of¬ce, by every
state or municipal institution which takes his money for purposes thought desir-
able, whether he likes it or not. The Fourteenth Amendment does not enact Mr.
Herbert Spencer™s Social Statics. . . . Some of these laws embody convictions or
prejudices which judges are likely to share. Some may not. But a constitution is
not intended to embody a particular economic theory, whether of paternalism
and the organic relation of the citizen to the state or of laissez-faire. It is made for
people of fundamentally differing views, and the accident of our ¬nding certain
opinions natural and familiar, or novel and even shocking, ought not conclude
our judgment upon the question whether statutes embodying them con¬‚ict with
the Constitution of the United States.32

Holmes then repeated his earlier refrain “ “General propositions do not
decide concrete cases” “ and stated the judicial approach to policy that

30 Id. at 64.
31 Id. at 75.
32 Id., 75“76 (citations omitted).
Holmes, Legal Theory, and Judicial Restraint
150

¬nally emerged from the analysis begun a decade before in the 1894
article on privilege:
I think that the word liberty, in the Fourteenth Amendment, is perverted when
it is held to prevent the natural outcome of a dominant opinion, unless it can
be said that a rational and fair man necessarily would admit that the statute
proposed would infringe fundamental principles as they have been understood
by the traditions of our people and our law.33

While the memorable phrases in Lochner have come over time to be
viewed as calling for the end of all interference with state laws impairing
freedom of contract, that would be inconsistent with his later remark
in Pennsylvania Coal Co. v. Mahon that “obviously the implied limitation
[the police power] must have its limits, or the contract and due process
cases are gone.”34 Re¬‚ecting on Lochner in 1990, Robert H. Bork praised
Holmes™s dissent but noted that
he spoiled it all by adding “ . . . unless it can be said that a rational and fair man
necessarily would admit that the statute proposed would infringe fundamental
principles as they have been understood by the traditions of our people and our
law.” So Holmes, after all, did accept substantive due process, he merely disagreed
with Peckham and the majority about which principles were fundamental.35

Bork, like many others, missed the point that Holmes™s objection in
Lochner was mainly to an abuse of method, as in Plant. Peckham™s opinion
for the majority erected a general proposition in place of the inquiry of
whether, as Holmes had said in Plant, “there is a wrong or not, and if not,
why not.” This is, once again, a form of the error that Ronald Dworkin con-
dones in claiming that judges may appeal directly to rights and principles
in dif¬cult cases, and in interpreting the Riggs and Henningsen cases to
represent legitimate examples of this practice. The case-speci¬c method
of the common law is evaded by appealing directly to a generalized value,
caricatured in 1894 by Holmes as a “benevolent yearning.”
Bork re¬‚ects the widely held view that the Lochner majority approved
virtually all claims of contractual freedom and that Holmes consistently
resisted them. Both points are wrong. Otis v. Parker, decided the other
way in rejecting the constitutional challenge by a majority of 7“2, exem-
pli¬es that other factors often swayed the majority. In still other cases

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