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§ 3.: Construction of constitutional limitations.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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Construction of constitutional limitations.—
But although these fundamental principles of natural right and justice cannot, in themselves, furnish any legal restrictions upon the governmental exercise of police power, in the absence of express or implied constitutional limitations, yet they play an important part in determining the exact scope and extent of the constitutional limitations. Wherever by reasonable construction the constitutional limitation can be made to avoid an unrighteous exercise of police power, that construction will be upheld, notwithstanding the strict letter of the constitution does not prohibit the exercise of such a power. The unwritten law of this country is in the main against the exercise of police power, and the restrictions and burdens, imposed upon persons and private property by police regulations, are jealously watched and scrutinized. “The main guaranty of private rights against unjust legislation is found in that memorable clause in the bill of rights, that no man shall be deprived of life, liberty or property, without due process of law. This guaranty is not construed in any narrow or technical sense. The right to life may be invaded without its destruction. One may be deprived of his liberty in a constitutional sense without putting his person in confinement. Property may be taken without manual interference therewith, or its physical destruction. The right to life includes the right of the individual to his body in its completeness and without its dismemberment, the right to liberty, the right to exercise his faculties and to follow a lawful avocation for the support of life, the right of property, the right to acquire property and enjoy it in any way consistent with the equal rights of others and the just exactions and demands of the State.”1
In a late case2 the Supreme Court expresses itself as follows: “The Fourteenth Amendment is not confined to the protection of citizens.” It says: “Nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”
* * * * * * * * * * *
“When we consider the nature and theory of our institutions of governments, the principles upon which they are supposed to rest and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of public opinion or by means of the suffrage. But the fundamental rights to life, liberty and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth ‘may be a government of laws and not of men.’ For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country, where freedom prevails, as being the essence of slavery itself.”
In searching for constitutional restrictions upon police power, not only may resort be had to those plain, exact and explicit provisions of the constitution, but those general clauses, which have acquired the name of “glittering generalities,” may also be appealed to as containing the germ of constitutional limitation, at least in those cases in which there is a clearly unjustifiable violation of private right. Thus, almost all of the State constitutions have, incorporated in their bills of rights, the clause of the American Declaration of Independence that all men “are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.” If, for example, a law should be enacted, which prohibited the prosecution of some employment which did not involve the infliction of injury upon others, or which restricts the liberty of the citizen unnecessarily, and in such a manner that it did not violate any specific provision of the constitution, it may be held invalid, because in the one case it interfered with the inalienable right of property, and in the other case it infringed upon the natural right to life and liberty. “There is living power enough in those abstractions of the State constitutions, which have heretofore been regarded as mere ‘glittering generalities,’ to enable the courts to enforce them against the enactments of the Legislature, and thus declare that all men are not only created free and equal, but remain so, and may enjoy life and pursue happiness in their own way, provided they do not interfere with the freedom of other men in the pursuit of the same objects.”1 This is a novel doctrine, and one which perhaps is as liable to give rise to dangerous encroachments by the judiciary upon the sphere and powers of the legislature, as the doctrine that a law is invalid which violates abstract principles of justice. If it be recognized as an established rule of constitutional law, it must certainly be confined in its application to clear cases of natural injustice. Wherever there is any doubt as to the legitimate character of legislation, it should be solved in favor of the power of the legislature to make the enactment. In all cases the courts should proceed with caution in the enforcement of this most elastic constitutional provision.
While we find a tendency in one direction to stretch the constitutional restrictions over a great many cases of legislation, which would not fall within the strict letter of the constitution, in order that due force and effect may be given to the fundamental principles of free government; on the other hand, where the letter of the constitution would prohibit police regulations, which by all the principles of constitutional government have been recognized as beneficent and permissible restrictions upon the individual liberty of action, such regulations will be upheld by the courts, on the ground that the framers of the constitution could not possibly have intended to deprive the government of so salutary a power, and hence the spirit of the constitution permits such legislation, although a strict construction of the letter may prohibit. But in such a case the regulation must fall within the enforcement of the legal maxim, sic utere tuo, ut alienum non lædas. “Powers which can only be justified on this specific ground (that they are police regulations) and which would otherwise be clearly prohibited by the constitution, can be such only as are so clearly necessary to the safety, comfort and well-being of society, or so imperatively required by the public necessity, as to lead to the rational and satisfactory conclusion that the framers of the constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it.”1 And in all such cases it is the duty of the courts to determine whether the regulation is a reasonable exercise of a power, which is generally prohibited by the constitution. “It is the province of the law-making power to determine when the exigency exists for calling into exercise the police power of the State, but what are the subjects of its exercise is clearly a judicial question.”2
Chief Justice Marshall said in Marburg v. Madison:3 “The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty—indeed they are under a solemn duty—to look at the substance of things whenever they enter upon the inquiry whether the legislature had transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relations to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the court to so adjudge, and thereby give effect to the constitution.”
Bertholf v. O’Reilly, 74 N. Y. 509
Yick Wo v. Hopkins, 118 U. S. 356.
Judge Redfield’s annotation to People v. Turner, 55 Ill. 280; 10 Am. Law Reg. (n. s.) 372. At a very early day, before the adoption of the present constitution of the United States, it was judicially decided in Massachusetts that slavery was abolished in that State by a provision of the State constitution, which declared that “all men are born free and equal, and have certain natural, essential and inalienable rights,” etc. This clause was held to be inconsistent with the status of slavery, and therefore impliedly emancipated every slave in Massachusetts. See Draper, Civil War in America, vol. I., p. 317; Bancroft, Hist. of U. S. vol. x., p. 365; Cooley Principles of Const., p. 213.
Christiancy, J., in People v. Jackson and Mich. Plank Road Co., 9 Mich. 285.
Lake View v. Rose Hill Cemetery, 70 Ill. 192.
1 Cranch, 137.