In the 1906 case of Illinois Central Railroad Company, Gulf and Ship Island Railroad Company, Southern Railroad Company v. The Interstate Commerce Commission (ICC), the U.S Supreme Court ruled in favor of ICC. The railroad companies had challenged an order by the ICC that required them to cease from giving preferential treatment to certain shippers through rebates or other forms of rate discrimination. They argued that this was a violation of their Fifth Amendment rights as it constituted taking property without due process and just compensation. However, the court held that railroads were public utilities subject to regulation for public interest purposes under Congress's commerce power and thus could be ordered not to discriminate among shippers in rates charged for similar services.

In the dissenting opinion for Illinois Central Railroad Company, Gulf and Ship Island Railroad Company, Southern Railroad Company v. The Interstate Commerce Commission (1906), Justice Harlan disagreed with the majority's decision to uphold the constitutionality of a law that allowed the Interstate Commerce Commission to set maximum railroad rates. He argued that this power was too broad and could potentially be used in an arbitrary or discriminatory manner by government officials. Furthermore, he contended that such regulation infringed upon private property rights without due process of law as it did not provide railroads with a fair opportunity to challenge rate determinations before they were enforced. This, according to him, violated principles of justice and fairness inherent in constitutional governance.