Page:The Green Bag (1889–1914), Volume 19.pdf/703

 664

THE GREEN BAG

Federal Constitution and in the constitutions of the several states as to subject not only the commercial and governmental but the entire industrial and social systems to their regulation and control. "Property" they maintain, in " its broader sense is not merely the physical thing which may be the subject of ownership, but is the right of dominion, possession and power of disposition which may be acquired over it, and the right of property guaranteed by the Constitution is the right not only to possess and enjoy it but also acquire it in any lawful mode or by following any lawful industrial pursuit which the citizen in the exercise of the liberty guaranteed him chooses to adopt. " The term "liberty" as used in the Constitution they say, means not only freedom of the citizen from servitude and restraint but the right to be free in the use of his powers and intellect and to adopt and pursue such vocations and callings as he may choose, subject only to the restraints necessary to secure the common welfare. " 1 And above all they insist that it is for the courts and not for the legislatures to determine and to decide what restraints are necessary to secure this public welfare and what are not. The exigency for any measure they say is for the legislature to pass upon but the necessity therefor and the reasonableness is for the courts. They in short assume to themselves the right to decide where collec tivism shall begin and where individualism shall end, and to control and direct the great social and political movements of the time. Even the Supreme Court of the United States, though for a time evidencing an intention to yield to the discretion of the state legislatures and of the state courts in matters of local, industrial, and personal concern,2 has recently shown a determina tion to itself supervise the police legislation of the states and to broadly interpret the 14th Amendment for that purpose. The 1 Ritchie v. People, 135 Ill. 98. • Holden v. Hardy, 169 U. S. 366; Powell v. Pennsylvania, 127 U. S. 678; Atkin v. Kansas, 191 U. S. 207.

State of New York, for instance, recently passed a statute limiting the hours of labor of employees in public bakeries and the courts of the state sustained the statute on grounds of public welfare and on the theory that long hours of labor at the baker's oven were injurious to the health of the employee and to the body politic of which he was but a unit and a part. The Supreme Court of the nation, however, superimposed the opinion of its nine judges, or rather of the five who con stituted its majority, upon that of the New York Courts and of the New York legisla ture and declared the law unconstitutional and an interference with individual liberty which was unreasonable and not justified on grounds of public health.1 So, too, the desire seems present and the popular sup port forthcoming to follow the course advocated by Judge Amidon in his recent address2 before the American Bar Associa tion and to extend more and more the control of the Federal Government over commercial transactions and agencies of all kinds without regard to the precedents of the past and the restraints of its history and logic or the express terms of the Con stitution. The intention is present in short to adopt an elastic construction of the Con stitution, a construction which construes not in the light of the intention of the framers 'of the instrument in the past, but in the light of the exigencies of the present, and which, since the past and the written does not even in logic control, places the ultimate determination of all great national questions both social and industrial in the hands of the federal judiciary unrestrained by legal logic or by precedent. Every where in America indeed is to be found a government by the judiciary in matters which are social and industrial as well as in those which are political and govern mental. The policies in short of the nation and of the several states are really dictated and are coming more and more to be dictated not by the social and political 1 Lochner v. New York, 198 U. S. 45. 2 See Green Bag, October, 1907.