nally inserted in our constitutions to
consecrate a specific mode of trial in criminal cases, to wit, the grand
jury, petit jury process of the common law, would be transformed into a
general restraint upon substantive legislation capable of affecting
property rights detrimentally.

It is against this background that the adoption of the Fourteenth
Amendment in 1868 must be projected. Applied, as in the Dred Scott and
Wynehamer cases, the clause which forbids any State "to deprive any
person of life, liberty or property without due process of law"
proffered the Court, in implication, a vast new jurisdiction, but this
the Court at first manifested the greatest reluctance to enter upon. It
did not wish, it protested, to become "a perpetual censor upon all State
legislation"; nor did it wish, by enlarged conceptions of the rights
protected by the Amendment, to encourage Congress to take over, under
the fifth section of the Amendment, the regulation of all civil rights.
"The federal equilibrium" had already been sufficiently disturbed by the
results of the War between the States and Reconstruction.[66]

But this self-denying ordinance, which never had the support of more
than a very narrow majority of the Court, soon began to crumble at the
edges. It was a period of immense industrial expansion, and the men who
directed this wanted a free hand. In 1878 the American Bar Association
was formed from the elite of the American Bar. Organized as it was in
the wake of the "barbarous" decision--as one member termed it--in Munn
_v._ Illinois,[67] in which the Supreme Court had held that states were
entitled by virtue of their police power to prescribe the charges of
"businesses affected with a public interest," the Association, through
its more eminent members, became the mouthpiece of a new constitutional
philosophy which was compounded in about equal parts from the teachings
of the British Manchester School of Political Economy and Herbert
Spencer's highly sentimentalized version of the doctrine of evolution,
just then becoming the intellectual vogue; plus a "booster"--in the
chemical sense--from Sir Henry Maine's _Ancient Law_, first published in
1861. I refer to Maine's famous dictum that "the movement of the
progressive societies has hitherto been a movement from _Status to
Contract_". If hitherto, why not henceforth?[68]

In short, the American people were presented, overnight as it were, with
a new doctrine of Natural Law. E