Page:The Green Bag (1889–1914), Volume 24.pdf/149

 126

The Green Bag

South Carolina, in 1812, that "the inter ference of the judiciary with legislative acts, if frequent or on dubious grounds, might occasion so great a jealousy of this power and so general a prejudice against it as to lead to measures ending in the total overthrow of the independence of the judges and so of the best preserva tive of the Constitution,7 and they have adopted the rule laid down by Chief Justice Tilghman in Pennsylvania, who said: "For weighty reasons it has been assumed as a principle in constitutional law by the Supreme Court of the United States by this court and by every other court of reputation in the United Scates, that an act of the legislature is not to be declared invalid unless the viola tion of the Constitution is so mani fest as to leave no room for reasonable doubt."" The accepted rule of the United States Supreme Court was expressed by Mr. Justice Day, in McLean v. Arkansas, a few years ago (211 U. S. 599), when he said: "If the law in controversy has a reasonable relation to the protection of the public health, safety, or welfare, it is not to be set aside because the judiciary may be of opinion the act will fail of its purpose or because it is thought to be an unwise exertion of the authority vested in the legislative branch of the govern ment." That individual liberty includes lib erty of contract with respect to labor as well as business has been settled beyond question by the decisions of the Supreme Court, but it is also the established doc trine of the Court, said Mr. Justice Day, in this same case, that "the liberty of contract is not universal and is subject to restriction by the legislative branch of the Government in the exercise of 7Adm'rs of Byrne v. Adm'rs of Stewart. 3 Des. 466. 'Com. v. Smith. 4 Bin. 117.

the police power to protect the safety, health, and welfare of the people. It is also true that the police power of the state is not unlimited and is subject to judicial review and when exerted in an arbitrary or oppressive manner may be annulled as a violation of the Consti tution." The courts are not unaware of the changes in social and industrial condi tions nor of the trend of thought toward collective action for the public welfare. They are willing to agree with Mr. Jus tice Moody, when in his dissenting opin ion in the Employers' Liability cases he said, "The economic opinion of judges and their views of the requirements of justice and public policy even when crystallized into well-settled doctrines of law have no constitutional sanctity," and while willing to bear the burden that is put upon them by the Constitu tion, they appreciate the fact that it is not well that the legislature should shift upon the courts all responsibility for correcting the injustice involved in the ill-considered remedies attempted for the cure of public evils. While they keep in mind the principles clearly expressed in these decisions, the courts even in time of sharp conflict of social forces will not be likely to arouse jealousy of their power, and I think we may rest assured that, while leaving to the legislatures free scope to make pro vision under new conditions for the pub lic health, safety, and welfare, the courts will preserve our ancient heritage of the immunity of the individual against ar bitrary power, whether of king or people, and of the right of every man to his liberty and his property, and so shall be maintained, not the rule of the majority, but the sovereignty of the organic state with the immunities reserved to the individual citizen.