For those who love precision and definiteness the question of the application of the Fourteenth Amendment to social and economic problems remains an irritating enigma. The judicial construction of due process of law and the equal protection of the law has from the first discouraged systematic analysis and defied synthesis. More than one writer has emerged from the study of the problem with a neat and compact set of fundamental principles, only to have the Supreme Court discourteously ignore them in its next case. But paradoxical as it may seem, those who long for a wise and forward-looking solution of modern social and economic problems may well rejoice that the application of the Fourteenth Amendment to those problems has, for the most part, been halting, changeable, chaotic, and conflicting. The process of trial and error by which a social and economic interpretation of that amendment is still being evolved has had certain very wholesome results. It has prevented the petrifaction in our law of the earlier individualistic doctrines of due process and equal protection of the law. At the same time it has left the way open for the courts to correct by the increased wisdom of the future the possible mistakes of the present, and to adjust the limitations of the Fourteenth Amendment to social and economic problems which are of necessity shifting and complex.' The present paper aims to discuss one phase of this trial and error process.
Robert E. Cushman,
Social and Economic Interpretation of the Fourteenth Amendment,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol20/iss7/4