Incorporation-Doctrine

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

Byron Beers's Treatise #3 cites Justice Matthews's *Hurtado v. People of California*, 110 U.S. 516, 535-36 (1884), for the proposition that '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. The quote is genuine. But the case held *against* the constitutional claim. Justice Matthews used the 'arbitrary power is not law' rhetorical premise to conclude that due process is *flexible* — not that any particular state procedure is impermissible. *Hurtado*'s actual holding: the Fourteenth Amendment Due Process Clause does NOT require grand-jury indictment in state criminal prosecutions, even in capital cases. Hurtado was convicted of murder based on prosecution by information rather than indictment, and the Supreme Court (7-1, Harlan dissenting) upheld the conviction. The 'arbitrary power' language was deployed in service of a holding that validated state procedure that omits a Bill of Rights protection.