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into questions of public policy" actually
prevailed on the Court, how could the high
bench determine when an exercise of the
police power violated constitutional
guarantees?
Rosen, The Supreme COUr% and Social Science po 68.
In Mugler Vo Kansas, 123 U.S. 623_ 8 So Cto 273, 31 L. Ed.
205 (1887), Justice Harlan warned that not all exercise of the
police power would be presumed constitutional:
There ares of necessity, limits beyond which
legislation cannot rightfully go ... The
Courts are not bound by mere forms, nor are
they to be misled by mere pretenses. They
are at liberty--indeed_ are under a solemn
duty--to look at the substance of things
whenever they enter upon the inquiry whether
the legislature has transacted tire limits of
its authority.
123 U.S. at 661.
Later, with the rise of substantive due process, these
principles became operative standards for judicial review. SeE
Muller v. Oreqon_ 208 U.So 412g 28 So Ct. 324_ 52 L. Ed. 551
(1908); Q_n_Winq v. Kirkendall_ 223 U°S. 59f 32 So Ct. 192_ 56
L. Ed. 350 (1912) Buntin! v. Oregong 243 U.S. 426_ 375 S. Cto
435, 61 Lo Edo 830 (1917); Stettler v. O'_ra, 243 U.S. 629, 37
S° Cto 475, 61 Lo Ed. 937 (1917)o
Even Justice Holmes_ though he advocaned judicial self
restraint and constitutional neutrality (see Lochner v. New York)
did not believe in the abstract or routine acceptance of the
legislation declaration of facts. Such he observed_ are entitled
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