Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Even under the narrowest concept of the police power as limited by substantive due process, it was generally conceded that states could exercise the power to protect the public health, safety, and morals. 1 For instance, an ordinance for incineration of garbage and refuse at a designated place as a means of protecting public health is not a taking of private property without just compensation, even though such garbage and refuse may have some elements of value for certain purposes. 2 Or, compelling property owners to connect with a publicly maintained system of sewers and enforcing that duty by criminal penalties does not violate the Due Process Clause. 3
There are few constitutional restrictions on the extensive state regulations on the production and distribution of food and drugs. 4 Statutes forbidding or regulating the manufacture of oleomargarine have been upheld, 5 as have statutes ordering the destruction of unsafe food 6 or confiscation of impure milk, 7 notwithstanding that, in the latter cases, such articles had a value for purposes other than food. There also can be no question of the authority of the state, in the interest of public health and welfare, to forbid the sale of drugs by itinerant vendors 8 or the sale of spectacles by an establishment where a physician or optometrist is not in charge. 9 Nor is it any longer possible to doubt the validity of state regulations pertaining to the administration, sale, prescription, and use of dangerous and habit-forming drugs. 10
Equally valid as police power regulations are laws forbidding the sale of ice cream not containing a reasonable proportion of butter fat, 11 of condensed milk made from skimmed milk rather than whole milk, 12 or of food preservatives containing boric acid. 13 Similarly, a statute intended to prevent fraud and deception by prohibiting the sale of
filled milk (milk to which has been added any fat or oil other than a milk fat) is valid, at least where such milk has the taste, consistency, and appearance of whole milk products. The Court reasoned that filled milk is inferior to whole milk in its nutritional content and cannot be served to children as a substitute for whole milk without producing a dietary deficiency. 14
Even before the passage of the 21st Amendment, which granted states the specific authority to regulate alcoholic beverages, the Supreme Court had found that the states have significant authority in this regard. 15 A state may declare that places where liquor is manufactured or kept are common nuisances, 16 and may even subject an innocent owner to the forfeiture of his property if he allows others to use it for the illegal production or transportation of alcohol. 17