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THE GREEN BAG

THE ELASTICITY OF THE CONSTITUTION BY ERNEST BRUNCKEN. THE question, suddenly so widely dis cussed, whether the constitution of the United States has and ought to have to us of the present day precisely the same meaning it had to its framers, or whether its provisions are general enough to permit the growth of new legal and political conceptions without breaking the framework, invites a re-examination of the principles according to which written constitutions should be interpreted. I do not propose, within the limits of a maga zine article, to attack so great a problem in its entirety, but merely to suggest a single phase of it. The interpretation of legal documents is inextricably bound up with the part played in our system by precedents. To the rule that "a solemn decision upon a point of law, arising in any given case, becomes an authority in a like case" (i Kent's Comm. 476) we owe an amount of stability in our legal principles, not enjoyed to the same extent under systems recognizing precedents as advisory only. But almost as long as the rule has prevailed, the voices of the best lawyers have been heard to warn against the common misconception, that a decision once given, even though it be palpably erroneous, cannot thereafter be rectified but must forever leave the law floundering in the morass. "Even a series of decisions are not always conclusive evidence of what is law; and the revision of a decision very often resolves itself into a mere question of expediency, depending upon the consideration of the importance of certainty in the rule, and the extent of property to be affected by a change of it." (Kent's Comm, 477.) But it is not alone where a series of decisions has been plainly unreasonable, that an overruling of pre cedents is quite permissible within the spirit of our system. "Considering the influence

of manners upon law, and the force of opinion, which is silently and almost insen sibly controlling the course of business and the practice of the courts, it is impossible that the fabric of our jurisprudence should not exhibit deep traces of the progress of society, as well as of the footsteps of time." (Kent's Comm. 479.) The force of opinion, which in the words of the great Chancellor controls the practice of the courts, has played a very impor tant part in the interpretation of the con stitution. For while the courts rarely find it expedient to set forth in so many words their fundamental ideas regarding the nature and purpose of government or the relation of the individual to the state, it is evident that what a judge thinks on these funda mental subjects must affect his reasoning on the true meaning of the constitution. Now it seems to me that it is entirely within the true scope of the rule of stare decisis, and compatible with the greatest reverence for precedents, if we set aside as obsolete interpretations based on such fun damental opinions, whenever these have ceased to be the opinions generally held by and influencing the conduct of the people who are ruled by the constitution. Such departure from obsolete precedents is in no sense a stretching of the plain words of the constitution. It is simply a continuation of the process by which the common law has been developed from the first crude beginnings, by which the concept of a corporation as a juridical person has been introduced, or the modern law of contracts been fashioned. I can more easily make my meaning plain by considering a concrete instance. In the recent case of People v. Williams (81 Northeastern Rep., 778) the New York Court of Appeals have held that a statute prohibiting night work of adult women in