Mugler v. Kansas 123 U.S. 623 (1887)

• Author: David Gordon
• Pages: 1764

Page 1764

In Mugler the Supreme Court took a significant step toward the acceptance of SUBSTANTIVE DUE PROCESS, announcing it would henceforth examine the reasonableness involved in an exercise of STATE POLICE POWER. A Kansas statute prohibited the manufacture or sale of intoxicating liquor; the state arrested Mugler for making and selling malt liquor and also closed a brewery for being a public nuisance.

Justice JOHN MARSHALL HARLAN addressed the issue: did the Kansas statute violate the FOURTEENTH AMENDMENT guarantee of DUE PROCESS OF LAW ? He declared that such a prohibition "does not necessarily infringe" any of those rights. Although an individual might have an abstract right to make liquor for his own purposes, as Mugler contended, that right could be conditioned on its effect on others' rights. The question became who would determine the effects of personal use on the community? Harlan found that power lodged squarely in the legislature which, to protect the public health and morals, might exercise its police power. But, bowing to JOSEPH CHOATE'S argument, he admitted that such power was limited. Harlan asserted that the courts would not be bound "by mere forms [or] ? pretenses." They had a "solemn duty?to look at the substance of things"; absent a "real or substantial relation" of the act to its objects, the legislation must fall as a "palpable invasion of rights secured by the FUNDAMENTAL LAW." The Kansas statute easily passed this test, however...