After a century of experience, we are now thoroughly accustomed to viewing the fourteenth amendment as imposing upon the experimentation otherwise permitted in our fifty separate "laboratories" limitations that do not materially differ from those fastened upon the national government by the bill of rights.1 The history of this evolution is far too well known to justify rehearsing here even in the barest outline.2 But it bears noting that few, if any, observers believe that the language of the amendment has played a significant role in this historical evolution. Here, as elsewhere, "[b]ehind the words ... are postulates which limit and control.3
The governing postulates, to be sure, have shifted over time, ranging from conceptions of vested rights and laissez-faire economics to more recent concerns for representative democracy, equality, and individual dignity. But postulates, not textual analysis, have been the impelling force behind the various theories used to justify application of most of the specific guarantees of the bill of rights to the states as part of the "liberty" secured by the due process clause.4 Similarly, postulates, not language, have been at the root of the apparently unending controversy over the extent to which the Supreme Court may properly invoke the amendment to constitutionalize values not readily inferable from the constitutional text, structure, or history.5
Henry P. Monaghan,
Of "Liberty" and "Property",
Cornell L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/793