The movement claim that Hurtado v. People of California, 110 U.S. 516 (1884), establishes 'arbitrary power is not law' as operative authority against state legislative practice is unsupported
The movement proposition
Byron Beers’s Treatise #3 (The Natural Order of Things) cites Justice Stanley Matthews’s majority opinion in Hurtado v. People of California, 110 U.S. 516, 535-36 (1884), for the following proposition:
“Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude.”
The Treatise #3 extraction identifies this as one of the strongest passages in American jurisprudence on the limits of legislative power — a genuine and powerful Supreme Court statement reading as a constraint on state-legislative authority. Beers reads it as evidence that the natural-order framework’s principle (arbitrary power exercised without natural-law grounding is not validly law) finds direct Supreme Court endorsement in the 1880s.
The quote is genuine. The case held against the constitutional claim.
The authority
Hurtado v. People of California, 110 U.S. 516 (1884) was a Fourteenth Amendment Due Process Clause challenge to California’s criminal procedure. Joseph Hurtado was charged with murder. California prosecuted him by information (a charging document filed by the prosecutor) rather than by indictment (a charging document returned by a grand jury). Hurtado argued that the Fifth Amendment’s requirement of “presentment or indictment of a Grand Jury” for capital and infamous crimes — applied to the states through the Fourteenth Amendment’s Due Process Clause — required California to use grand-jury indictment. He was convicted of murder and sentenced to death.
The Supreme Court (7-1, Matthews writing for the majority, Harlan dissenting) upheld the conviction and the sentence. The Court held that the Fourteenth Amendment Due Process Clause does not require the states to use grand-jury indictment, even in capital cases. State procedure that affords adequate notice and hearing satisfies due process, even if the procedure omits specific historical features (like grand-jury indictment) that the federal Bill of Rights contains.
The “arbitrary power is not law” language appears in Matthews’s reasoning toward this holding. The full structure: due process is a flexible concept; it does not require any particular historical form of procedure; the only requirement is that procedure not be arbitrary. The state’s choice to use information rather than indictment is not arbitrary because the information procedure provides notice and opportunity to be heard. Therefore the procedure satisfies due process. Therefore the conviction stands.
The “arbitrary power is not law” passage is doing rhetorical-premise work for a holding that validates state criminal procedure that omits a federal Bill of Rights protection.
What this means for Beers’s argument
The structural problem is straightforward. Beers reads the Hurtado passage as anti-state-legislative authority. The case used the Hurtado passage as a rhetorical premise for a holding that broadly validated state legislative authority over criminal procedure. The doctrinal direction runs opposite to the inference Beers draws.
If “arbitrary power is not law” were operative authority against state legislative practice, Hurtado would have won his case. The state’s information procedure would have been struck down as inconsistent with the federal Bill of Rights as incorporated through the Fourteenth Amendment. Instead, the Court used the principle to defeat Hurtado’s claim — flexibility of due process means state procedure that differs from federal procedure is not thereby arbitrary. The principle was deployed against the claim that natural-law constraints required particular forms.
The pattern is recognizable as the same pattern surfaced across the corpus’s other cite-misuses (Cruikshank “voluntarily submitted”; Ogden v. Saunders “state of society”; Pembina v. Pennsylvania “natural persons”). A rhetorical premise that sounds supportive of the framework, deployed in service of a holding that runs the other way.
The broader doctrinal context
Hurtado sits at an important moment in the incorporation-doctrine history of the Fourteenth Amendment. The modern doctrine — selective incorporation through the Due Process Clause — has applied most of the Bill of Rights to the states one provision at a time. Mapp v. Ohio, 367 U.S. 643 (1961), incorporated the Fourth Amendment exclusionary rule. Gideon v. Wainwright, 372 U.S. 335 (1963), incorporated the Sixth Amendment right to counsel. Pointer v. Texas, 380 U.S. 400 (1965), incorporated the Confrontation Clause. Duncan v. Louisiana, 391 U.S. 145 (1968), incorporated the Sixth Amendment jury-trial right.
But the Hurtado holding on grand-jury indictment specifically has not been overruled. The Fifth Amendment’s grand-jury requirement remains unincorporated. Branzburg v. Hayes, 408 U.S. 665 (1972), and the Court’s subsequent practice continue to treat Hurtado as good law on this point. States may, and many do, use information procedure rather than grand-jury indictment for criminal prosecutions, including capital cases.
This is doctrinally consequential for Beers’s framework. The single case Beers cites for “arbitrary power is not law” as anti-state-legislative authority is the case that legitimated state legislative authority to depart from the federal Bill of Rights on a specific procedural protection — and that legitimation remains operative law. The rhetorical premise is real; the operative doctrine the premise was deployed to support runs opposite to the inference Beers draws.
Counter-authority
The incorporation-doctrine line (Gitlow v. New York, 268 U.S. 652 (1925), forward) addresses the question of which Bill of Rights protections apply to the states. The doctrine has expanded incorporation considerably but specifically retained Hurtado’s grand-jury exception. Apodaca v. Oregon, 406 U.S. 404 (1972), held that the Sixth Amendment’s unanimous-jury requirement does not apply to states (since substantially modified by Ramos v. Louisiana, 590 U.S. ___ (2020)). The Court’s incorporation jurisprudence is selective and treats Hurtado-style “flexibility of due process” as a real doctrinal principle.
The natural-law / arbitrary-power tradition the Hurtado passage draws from does continue to operate in American constitutional doctrine — but it operates within the Due Process Clause framework, not against it. Lochner-era substantive due process was the high-water mark of natural-law constitutional reasoning; West Coast Hotel v. Parrish, 300 U.S. 379 (1937), substantially abandoned that tradition. The post-1937 substantive-due-process doctrine (privacy and family-autonomy cases) draws on natural-law principles within the constitutional text.
Verdict
Unsupported. Hurtado v. People of California’s “arbitrary power is not law” language is genuine but does not support the operative inference Beers’s framework draws from it. The passage is a rhetorical premise deployed in service of a holding that validated state legislative authority over criminal procedure — specifically, the authority to prosecute capital cases by information rather than by grand-jury indictment. The case’s holding remains operative law and has been confirmed in subsequent incorporation jurisprudence. Citing Hurtado as anti-state-legislative authority inverts the case’s actual direction.
The legitimate scholarly territory — the relationship between natural-law principles and operative constitutional doctrine, the substantive-due-process tradition, the originalist debate about pre-existing rights — exists and has rich scholarship. The Hurtado passage as Beers cites it is part of that tradition but functions in the opposite of the way Beers’s framework wants. A reader engaging the natural-law / due-process question should engage it through the substantive-due-process literature (Tribe, Sunstein, Amar) rather than through the rhetorical premise of a case whose holding ran against the constitutional claim.
Sources cited
- The Natural Order of Things — Byron Beers