It could not be determined in advance by abstract reasoning.
Hence, as each litigation arose, the judges could follow no rule but the
rule of common sense, and the Police Power, translated into plain
English, presently came to signify whatever, at the moment, the judges
happened to think reasonable. Consequently, they began guessing at the
drift of public opinion, as it percolated to them through the medium of
their education and prejudices. Sometimes they guessed right and
sometimes wrong, and when they guessed wrong they were cast aside, as
appeared dramatically enough in the temperance agitation.
Up to about the middle of the last century the lawfulness of the liquor
business had been unquestioned in the United States, and money had been
invested as freely in it as in any other legitimate enterprise; but, as
the temperance agitation swept over the country, in obedience to the
impulsion given by science to the study of hygiene, dealing in liquor
came to be condemned as a crime. Presently legislatures began to pass
statutes to confiscate, more or less completely, this kind of property,
and sufferers brought their cases before the courts to have the
constitutionality of the acts tested, under the provisions which existed
in all state constitutions, forbidding the taking, by the public, of
private property without compensation, or without due process of law.
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