Page:Harvard Law Review Volume 32.djvu/269

233 DUE PROCESS OF LAW — TO-DAY 233 which a "rational and fair man would admit to infringe funda- mental principles" ^^ is unconstitutional. But what principles are fundamental? Except as illustrated by the Frank-Georgia mob case ^® and his dehghtful treatment of the statutory sandbag de- vised by Louisiana for the American Sugar Company ^° we remain uninstructed; but I humbly conclude that if there are any principles so fundamental as properly to invalidate formally correct legisla- tive action, the differences between the present extremes of judicial opinion on this subject are of degree and not kind; for all agree that however correct in procedure, the ipse dixit of the legislature is not a sufficient reason for what it decrees, therefore a reason must be shown sufficient for the reviewing court, and the court's approval or disapproval is an opinion, which, as Justice Holmes says, ''tends to become law." This is our condition to-day. It is hard for me to call this law in the same sense as we speak of patent law or that of insurance; but it is a far higher exercise of juridical thought, — to justify from term to term all exercises of popular will which do not plainly violate some express or plainly implied constitutional prohibition. It is really a function of political criticism. Irrespective of party, and I respectfully believe with small re- gard most of the time for legalism, while maintaining legal form, — the highest court and most high courts have refused to regard constitutions as codes, and of late years have more and more made due process of law whatever process seems due to the de- mands of the times, as understood by the judges of the time being. The direct appeal of property to due process has for the most part failed; and apparent successes have but taught legislators how to arrive at the same result in another way. The indirect appeal through Kberty is still going on, for the American belief that every freeman can do what he likes, where and when he pleases, as long as he does not infringe the moral law as expressed in the usual criminal code, dies very hard. But it is dying, and the courts, when in- voked to-day under the due-process clause, are doing httle more than easing the patient's later days. Charles M. Hough. New York. " Frank v. Mangum, 237 U. S. 309, 345 (1915). •<* McFarland v. American, etc. Co., 241 U. S. 79 (1916).
 * ' Lochner v. New York, supra.