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The Green Bag

at being held by fetters intended for the few rather than for the many, and they do not clearly understand why democracy in the United States of America should not have the freedom of legislation which it has long since acquired under the British monarchy. The restraining principles of the Ameri can constitutions over which the con test is now waged are found in the pro visions of Magna Carta and the Statutes of Henry II and Edward III forbidding the rights of freemen to be taken or impaired except by the law of the land or without due process of law. It is out of these that have been developed the doctrine now well established in our law, that statutes, both state and federal, are invalid if they arbitrarily deprive the individual of his property or of his liberty of contract as well as the liberty of his person, and the re straint has been applied, not only to the executive, but also to the legislature itself. It is under the Fourteenth Amend ment, restricting the power of the states in the very language of these Knglish charters, that most of the questions have arisen in which the courts have checked what is called progressive legislation adopted to modify individual rights in view of new social conditions and newconceptions of the relations of individuals to the social welfare. The recent decisions which I have especially in mind are typical of classes of decisions which have been severely criticized — were made in cases relat ing to the hours of labor of certain classes of laborers or in certain kinds of employment, and to cases on the validity of statutes providing compen sation to workmen for injuries arising from accidents in the course of their employment and without fault on the part of the employer.

One of these is the Bakeries case in New York, Lochner v. New York, 198 U. S. 645. The Appellate Division and the Court of Appeals of New York maintained the validity of a statute limiting the hours of labor of men of full age in bakeries and manufactories of confectionery, and the Supreme Court of the United States reversed the decision, holding the statute to be an arbitrary interference with the liberty of contract guaranteed by the Four teenth Amendment and not to be sus tained as a bona fide exercise of the police power to protect the public health, safety, morals, or general welfare. The opinion of the majority of the court was read by Justice Peckham and con curred in by the Chief Justice and Justices Brewer, Brown, and McKenna. Four judges dissented. Justice Harlan read an opinion concurred in by Justices White and Day, and Justice Holmes read a dissenting opinion of his own. These three opinions express three differing views of the duty of the courts in dealing with the effect of constitu tional limitations upon legislation re stricting liberty of contract. The ma jority opinion concedes that liberty of contract is limited by the police power and that the exercise of the police power is in the discretion of the legis lature, but the judges are strongly im bued with the ideas of the individualist theory of the duties of the state, and do not give full consideration to the actual conditions of modern industrial life, and find, as a matter of fact, that there is nothing in the case on which to base any reasonable opinion that the statute is an honest exercise of the police power. They hold that it is merely an arbitrary interference with individual liberty such as is forbidden to the states by the Fourteenth Amendment. Justice Harlan and Justices White and