Page:Harvard Law Review Volume 32.djvu/268

232 232 HARVARD LAW REVIEW and compensation statutes,^® to the intellectual mud holes of ice cream ^^ and trading stamp ordinances.^^ The idea that due process was something like a writ, and if no writ could be found, the law afforded no remedy was duly ex- ploded; it does not press the simile too far to say that since the Hurtado case, the legislatures of my generation could proceed as in consimili casu; but no court had given any more exuberantly American definitions of liberty than already existed in the Supreme Court reports,^ even though in a rather hazy way it was admitted that liberty of contract was subject to police power limitations;^' and one pregnant sentence, to the effect that no man could have a vested right in any rule of the common law,^ i. e., in the customs of our forefathers, had plainly survived the Granger wreck. No man has seen more plainly that the court was measuring the legislature's reasons by its own intellectual yardstick than has Justice Holmes; none more keenly perceived that the notations thereupon marked those results of environment and education which many men seem to regard as the will of God or the decrees of fate. He has complained that a "constitution is not intended to embody a particular economic theory," though of course a statute may be and often is designed so to do; and in particular the "Fourteenth Amendment does not enact Mr. Herbert Spen- cer's social statics," and he deems the "word liberty perverted when held to prevent the natural outcome of a dominant opin- ion;"^ while as for "principles," it is sometimes idle to speculate whether they are "eternal or a no longer useful survival, (for) constitutionality is independent of our {i. e., the courts') views on such points." ^^ To arrive at what the Justice so simply calls the "osmose of mutual understanding,"^' one asks, is anything left not independ- ent of constitutionality? The seeming answer is that a statute " Hawkins v. Bleakly, 243 U. S. 210 (1917). " Hutchinson v. Iowa, 242 U. S. 153 (1916).
 * ^ Rast V. Van Deman, 240 U. S. 342 (1916).
 * E. g. Allgeyer v. Louisiana, 165 U. S. 578, 589 (1896).
 * » Holden v. Hardy, 169 U. S. 366 (1898).
 * Munn V. Illinois, 94 U. S. 113 (1876).
 * Lochner v. New York, 198 U. S. 45, 75 (1905).
 * • Grant Co. v. Gray, 236 U. S. 133 (1915).
 * '' Brown v. Elliott, 225 U. S. 392, 404 (1911).