For example, during the Civil War, the courts sanctioned
everything the popular majority demanded under the pretext of the War
Power, as in peace they have sanctioned confiscations for certain
popular purposes, under the name of the Police Power. But then, courts
have always been sensitive to financial influences, and if they have
been flexible in permitting popular confiscation when the path of least
resistance has lain that way, they have gone quite as far in the
reverse direction when the amount of capital threatened has been large
enough to be with them a countervailing force.
As the federal Constitution originally contained no restriction upon the
states touching the confiscation of the property of their own citizens,
provided contracts were not impaired, it was only in 1868, by the
passage of the Fourteenth Amendment, that the Supreme Court of the
United States acquired the possibility of becoming the censor of state
legislation in such matters. Nor did the Supreme Court accept this
burden very willingly or in haste. For a number of years it labored to
confine its function to defining the limits of the Police Power,
guarding itself from the responsibility of passing upon the
"reasonableness" with which that power was used.
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