he more
enlarged theatre of public discussion. But while it has been 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. There is here abundant evidence that there exists some strange
misconception of the scope of this provision as found in the Fourteenth
Amendment. In fact, it would seem, from the character of many of the
cases before us, and the arguments made in them, 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. If, therefore, it were possible to define 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. But, apart from the imminent risk of a failure
to give any definition which would be at once perspicuous,
comprehensive, and satisfactory, there is wisdom, * * *, in the
ascertaining of the intent and application of such an important phrase
in the Federal Constitution, by the gradual process of judicial
inclusion and exclusion, as the cases presented for decision shall
require, * * *"[66]

In thus persisting in its refusal to review, on other than procedural
grounds, the constitutionality of State action, the Court was rejecting
additional business; but a bare half-dozen years later, in again
reaching a result in harmony with past precedents, the Justices gave
fair warning of the imminence of a modification of their views. Thus,
after noting that the due process clause, by reason of its operation
upon "all the powers of government, legislative as well as executive and
judicial," could not be appraised solely in terms of the "sanction of
settled usage," Justice Mathews, speaking for the Court in Hurtado _v._
California,[67] declared that, "arbitrary power, enforcing its edicts to
the injury of the persons and property of its subjects, is not law,