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Published online by Cambridge University Press: 02 September 2013
In addressing the court in due-process cases one should not commence with the usual salutation “May it please the Court.” Instead, one should say “My Lords.” Backed by and charged with the enforcement of the due-process clause of the fifth and fourteenth amendments, the Supreme Court of the United States is the American substitute for the British house of lords. It constitutes the real and only conservative second chamber of the federal government. It is a second conservative chamber for each of the state governments.
The time has come when the political scientists of the country should recognize, in the decisions of the United States Supreme Court under the due-process clause, the functioning of a second chamber, organized to defeat the popular will as expressed in legislation when that will appears to endanger what the court may regard as a fundamental requirement of the social structure itself.
Like all conservative second chambers, the Supreme Court and the due-process clause are in a hopeless dilemma. If the popular will were frustrated as often as the dissenting opinions of Mr. Justice McReynolds indicate that it should be, the second chamber function of the court would be assailed by the recall of judicial decisions. If the court bowed to the popular will as often as the dissenting opinions of Mr. Justice Holmes indicate that it should, the second chamber function of the court would cease to be exercised.
2 Unpopular Government in the United States, University of Chicago Press, 1914, Chap. xvi.
3 Thayer, J. B., “The Origin and Scope of the American Doctrine of Constitutional Law,” 7 Harvard Law Review, 129, 138–142.CrossRefGoogle Scholar
4 Ex Parte M'Collum, 1 Cow. (U. S.) 550, 564; Sinking Fund Cases, 99 U. S. 700.
5 Grunball v. Ross, Charlton (Ga.) 175.
6 Administrators of Byrne v. Admrs. of Stewart, 3 Des. (S. C.) 466.
7 Lochner v. N. Y., 198 U. S. 45 (1905) where the New York ten-hour law for bakers was held void.
8 Adair v. U. S., 208 U. S. 161 (1908); Coppage v. State of Kansas, 236 U. S. 1 (1915), which held void acts which forbade employers to discharge employees because they belonged to a union.
9 233 U. S. 630 (1914), where an act was held void which prohibited any person from acting as a conductor on a railroad train without having for two years prior thereto either worked as a brakeman or conductor on a freight train.
10 Chi. Mil. & St. Paul R. R. v. Wisconsin, 238 U. S. 491 (1915), where an act was held void which required the Railroad Company to leave the upper berth up when it had not been disposed of and the lower berth was occupied.
11 Adams v. Tanner, 244 U. S. 590, holding void an act which in effect prohibited certain employment agencies from doing business.
12 219 U. S. 549 (1911).
13 211 U. S. 539, 548 (1909).
14 See however, “Due Process, the Inarticulate Major Premise, and the Adamson Act,” 26 Yale Law Journal, 527–529.
15 Muller v. Oregon, 208 U. S. 412 (1908).
16 Bunting v. Oregon, 243 U. S. 426 (1917).
17 Stettler v. O'Hara, 243 U. S. 629 (1917).
18 Adams v. Tanner, 244 U. S. 590 (1917).
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